ITEMID: 001-68600
LANGUAGEISOCODE: ENG
RESPONDENT: NLD
BRANCH: ADMISSIBILITY
DATE: 2005
DOCNAME: ROMIJN v. THE NETHERLANDS
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Mark Villiger
TEXT: The applicant, Ms Claire Susan Elisabeth Romijn, is a Netherlands national, who was born in 1952 and lives in Rotterdam (Netherlands). She is represented before the Court by Mr L. de Leon, a lawyer practising in Utrecht.
The applicant was the ex-wife and current unmarried cohabiting partner of one Mr Roberto Claret de Pool (hereinafter Mr R.C. de Pool). Mr R.C. de Pool was born on 30 January 1956. He died on 23 September 1998 from a gunshot wound sustained in a shooting incident involving police officers, in the course of which the applicant herself was wounded.
The facts of the case, as submitted by the applicant and as apparent from documents submitted by her, may be summarised as follows.
The Public Prosecutor (officier van justitie) of the Regional Court (arrondissementsrechtbank) of The Hague ordered Mr R.C. de Pool arrested on drugs charges. With the permission of the Chief Public Prosecutor (hoofdofficier van justitie) it was decided that Mr R.C. de Pool should be arrested without warning in his home in the town of Spijkenisse by a police arresting team. The reason was that Mr R.C. de Pool was believed to be in possession of a firearm.
The arrest was planned for 23 September 1998. It was intended that Mr R.C. de Pool's house would be searched once Mr R.C. de Pool was held.
The commander and members of the arresting team, all members of the Rotterdam-Rijnmond police force, were briefed on 22 September 1998. They were provided with information concerning the suspect and shown plans and photographs of the house where he was to be arrested. They were further told that Mr R.C. de Pool's elder son, Mr Roberto Timothy de Pool (born on 3 August 1981, sometimes referred to as Robertino), was also believed to possess a firearm.
The arresting team commander had the choice between a fast arresting procedure and a slower procedure. The fast procedure involved forcing an entry as quickly as possible and gaining control of all rooms in the building, pistols remaining holstered; only when a pair of police officers entered the room which they were detailed to clear would the first officer, and only the first officer, draw his pistol. The slower procedure involved the use of bulletproof shields. It might, depending on the circumstances, involve entering the building with pistols drawn. If the faster procedure was used but difficulties were encountered, the slower procedure was resorted to. The arresting team commander chose the fast procedure.
About one hour before the operation was to take place police officers undertook a final reconnaissance. It was established that the light was on in the hallway on the ground floor; the front door was locked and in addition bolted at the top but not at the bottom.
The arresting team were dressed in dark blue overalls, bulletproof vests bearing the word “police” in large black letters on a light-coloured reflecting background and bulletproof helmets with visors. They were equipped with electric torches and the standard police issue Walther P5 pistol. The pistols were loaded with standard police issue Action 3 ammunition.
The arresting team was comprised of nine police officers. Their names have been withheld from the public and they are referred to by code numbers.
The team was divided into pairs, each detailed to search a particular part of the house, leaving one member who would guard the back of the house. The first pair to enter the house would consist of Police Officers 0308 and 0207, who would then proceed to the back bedroom on the first floor where Mr R.C. de Pool was expected to be.
Shortly after the team arrived outside the De Pool home the commander was informed that there was light at the back of the house. However, this did not lead him to decide to use the slower procedure.
At approximately 5 a.m. the front door of the house was stove in with a steel battering ram. This seems to have taken three blows. The arresting team shouted “police, police” (politie, politie) in a loud voice.
Police Officers 0308 and 0207 entered the house and stormed up the stairs, Police Officer 0308 leading. He had his hand on the butt of his pistol and the holster open, ready as instructed to draw once he had reached the room which he was appointed to clear. Shining his torch up the stairs he saw a man and a woman standing on the landing.
Police Officer 0308 states that he saw the man – whom he recognised as Mr R.C. de Pool, the suspect he had come to arrest – holding a silver-coloured object in his hand, and that he (i.e. Police Officer 0308) then drew his service pistol. He saw Mr R.C. de Pool push the woman aside and stretch the arm holding the silver-coloured object towards him. At this point Police Officer 0308 identified the silver-coloured object as a firearm. There being no time to take cover, Police Officer 0308 fired.
Police Officer 0207 too states that he saw Mr R.C. de Pool holding an object that looked like a firearm.
The arresting team members, when questioned afterwards, all stated that only two shots were fired. The applicant states that it is possible, even likely, that up to four shots were fired.
One bullet struck Mr R.C. de Pool in the right side of the chest, running towards the left side and slightly towards the head, perforating the right chest cavity, the midriff, the right lobe of the liver, the spine (tenth thoracic vertebra), the left chest cavity and the lower lobes of both lungs and causing death by massive internal bleeding. The bullet was afterwards found in subcutaneous muscle on the left side towards the back, outside the chest cavity.
Another bullet penetrated the applicant's left arm.
In accordance with instructions previously given for an eventuality such as this, Police Officer 0308 called for a bulletproof shield, which was given him. He crouched behind it on the stairs, pointing his service pistol towards the landing. The police officers then ordered everyone upstairs to come down with their hands up.
The first to come down was the younger son of Mr R.C. de Pool and the applicant, Philip Frederik Dominic de Pool (born on 16 March 1989), followed by their elder son, Roberto Timothy de Pool and their daughter, Ms Marie Claire de Pool (born on 15 March 1977). The applicant followed. The two women indicated in loud tones that Mr R.C. de Pool was upstairs wounded.
Another person found in the house was Mr R.C. de Pool's brother, Mr Giovanni Adelberto de Pool. He had been sleeping on the settee, in the lounge on the ground floor. He had witnessed the police officers breaking down the door and entering the house.
Two members of the arresting team, Police Officers 0308 and 0305, then went upstairs. They found Mr R.C. de Pool slumped in the bathroom and obviously severely injured but they did not find any weapon. Police Officer 0308 asked for an ambulance to be called, which was done. The police officers made an attempt to bandage the gunshot entry wound and staunch the bleeding.
According to the ambulance journey form, the call was received at 5.07 a.m.; the ambulance – based in Spijkenisse – set off at 5.09 a.m. and reached the address given (which was about two kilometers distant) some four minutes later; and the ambulance crew reached the patient at 5.14 a.m., after having been shown upstairs by the police officers present. They found Mr R.C. de Pool being supported upright by police officers but unresponsive. Attempts were made to revive Mr R.C. de Pool, including by heart massage and by applying a saline drip to counter shock, but these were unsuccessful. Life was found to be already extinct.
A second ambulance was called for the applicant. Its journey form states that the order to move was received at 5.10 a.m. This ambulance, which had to come from the neighbouring town of Brielle, set off at 5.13 a.m. and reached the applicant at 5.24 a.m. It set off with the applicant at 5.50 a.m. and reached the Zuiderziekenhuis hospital in Rotterdam at 6.07 a.m. The applicant was found to have sustained a gunshot wound to the left arm; treatment administered by the ambulance crew was to dress the wound and apply an intravenous drip of fentanyl (a powerful pain killer).
The remaining members of the De Pool family were taken to Spijkenisse police station. The arresting team were relieved by police belonging to the regular Rotterdam-Rijnmond force.
Later, the house was searched under the supervision and authority of an investigating judge. The search yielded several firearms and some live ammunition. One of the weapons found was a small silver and black automatic pistol bearing traces of blood later identified as that of Mr R.C. de Pool. It had been lying on top of a wardrobe located on the landing, close to where Mr R.C. de Pool had been wounded. It had been loaded with five live rounds and ready to fire.
The members of the arresting team all handed in their service weapons to officers of the Rotterdam-Rijnmond police force. It was later recorded that, of the nine police pistols, six were loaded with the regulation nine rounds; one – that issued to Police Officer 0308 – held only seven rounds; and two held eight rounds instead of the normal nine.
Later on 23 September 1998 the Rotterdam Public Prosecutor requested the State Criminal Investigation Department (Rijksrecherche), a police force nominally answerable directly to the Minister of Justice and placed under the primary collective responsibility of the Procurators General to the Courts of Appeal whose duties included investigating cases of police firearms use with possible criminal-law implications, to investigate the events surrounding the death of Mr R.C. de Pool and the wounding of the applicant.
The State Criminal Investigation Department officers to whom the investigation was entrusted were two detective chief inspectors (hoofdinspecteurs van politie), Messrs Adrianus Luijken and Joachim Frits Gonsior. Their official record states that they were at Spijkenisse police station, being informed by Inspector Van Leeuwen of the local police force, by 9.30 a.m. They investigated the De Pool residence later that morning, at around 10.30.
In the course of 23 September 1998 police officers of the Rotterdam-Rijnmond police force took statements from six residents of houses adjacent to the De Pool residence.
All had been woken by the noise. All but one described hearing shouts of “police, police” and the noise of the front door being stove in. Some described hearing shots, although the number of shots claimed to have been heard varied: only one claimed to have heard two shots, two claimed to have heard three, and one estimated the number of shots at three to five.
The nine members of the arresting team were questioned by Detective Chief Inspectors Luijken and Gonsior on various dates between 28 September and 7 October 1998. The last to be questioned was Police Officer 0308; he was heard under caution as a suspect.
The members of the arresting team made detailed and largely consistent statements describing the preparation and execution of the arrest operation.
Those who were inside the house at the time of the shooting describe hearing Police Officer 0308 call out that there is a silver-coloured (according to one account: a chrome-coloured) pistol. None describe hearing more than two shots fired.
Several members of the arresting team describe attending a discussion or debriefing at Spijkenisse police station after withdrawing from the scene of the incident.
The crew of the first ambulance – a driver and a nurse – were questioned by Detective Chief Inspectors Luijken and Gonsior on 15 and 19 October 1998 respectively. They described the members of the arresting team taking them into the bathroom where they had found Mr R.C. de Pool being attended to by two police officers. Mr R.C. de Pool had been handcuffed and sitting in a slumped position. He had been unresponsive.
There had been a bullet entry wound but no exit wound. There had been no pupil reflex and no blood pressure. The heart monitor had shown a post-mortal pattern. Attempts to revive the patient, by heart massage and by applying a saline intravenous drip, had come to nought.
The applicant was questioned in her capacity of complainant (aangeefster) on 13 October 1998 by Detective Chief Inspectors Luijken and Gonsior.
The applicant had married Mr R.C. de Pool in 1979 on the island of Curaçao (Netherlands Antilles). She had divorced him in 1986 but the relationship had been resumed as a non-marital one in 1988. She and Mr de Pool had three children, Marie Claire de Pool, Roberto Timothy de Pool and Philip Frederik Dominic de Pool. The family had moved from Curaçao to the Netherlands in 1991 and had settled in the town of Spijkenisse. Cohabitation between the applicant and Mr R.C. de Pool had been intermittent and Mr R.C. de Pool had served several prison sentences.
During the night of 23 September 1998 the applicant had been asleep in bed, in the same bedroom as Mr R.C. de Pool. She had been woken up by a sound of banging and breaking glass which she had identified as coming from the front door. After leaving her bed, she had stood on the landing, calling out: “Who is there? What is happening?” several times. Mr R.C. de Pool had been standing next to her. She had heard, and then seen, a person coming up the stairs in the dark. This person had been dressed in black and wearing a helmet; as far as she could remember, this person had not had a torch. This person had started shooting immediately from halfway up the stairs. She had heard four shots in rapid succession and seen the muzzle flashes, which had been directed towards Mr R.C. de Pool and herself. She estimated the time that elapsed between the sound of banging and the shooting at between five and ten seconds.
The children had appeared as three more persons dressed in black and wearing helmets had come upstairs. It was then that the applicant had first seen the word “police” printed in large letters on the clothing of the first of these persons, and understood that they were officers of the law; however, she still did not understand why they had fired at her.
The applicant had been led downstairs. She had repeatedly asked for medical assistance for herself and Mr R.C. de Pool. The first ambulance had been very slow in arriving. Its crew had gone upstairs.
When the second ambulance arrived, the applicant had been laid out on a stretcher, carried to the ambulance and given emergency treatment, after which she had been taken to a hospital in Rotterdam.
At the hospital she had received further treatment and been informed that Mr R.C. de Pool was dead.
The following day, 24 September 1994, she had discharged herself from hospital after consulting with the doctor who had treated her. She and Marie Claire had been taken under police escort to view Mr R.C. de Pool's body at the undertakers' – no one else had been given permission to see it – and the body had been transferred to her custody for disposal.
The body of Mr R.C. de Pool had been transferred to Curaçao on 27 September 1998 and buried there two days later.
The applicant had been told while still in hospital that firearms had been found during a search of the house. She had not at any time seen one in the hands of Mr R.C. de Pool; as to any other firearms, she did not wish to make any statement without having seen her lawyer.
She had come to the conclusion that the police officer concerned had deliberately fired at her with intent to cause her grievous bodily harm or kill her. She had not given him any cause to use violence. In fact, she had intended to reason with him. She had not had any idea that the persons who had broken into her house were police officers; she had thought that she was being murdered. She had suspected that these persons were a gang of criminals dressed in police uniforms. She had not at any time heard them call out “Police, police”, either before the shots were fired or afterwards.
The applicant had not been shown an arrest or search warrant. She therefore wished to make a criminal complaint of murder or manslaughter and causing grievous bodily harm against the person who had fired, and also of theft committed in the course of the search; after all, she was not a suspect.
She also wished to know what had happened in the bathroom from the moment when Mr R.C. de Pool was left alone there with the police officers. Upon her return in her house, she had found much blood on the floor of the bathroom, traces of blood on the walls, the rail of the shower curtain torn down and the shower curtain, all bloody, folded up in the corner. She had also found a towel covered in blood.
The applicant herself was still in pain from her wound, which was also causing her difficulties in her daily life. The two elder children had gone to Curaçao to recover, the youngest was staying with family in order not to miss school.
The applicant was questioned a second time, this time by Detective Chief Inspector Gonsior in the presence of Detective Chief Inspector Van Buren, a police officer also assigned to the State Criminal Investigation Department, on 15 December 1998.
The applicant repeated that at the time of the shooting incident she had not seen a firearm on the landing or in the immediate vicinity of Mr R.C. de Pool. She did not know how it was that a firearm had been found in her house. Nor could she account for the presence of blood, presumably Mr R.C. de Pool's, on the weapon. She declined to say anything further on this subject.
Ms Marie Claire de Pool, the daughter of the applicant and Mr R.C. de Pool, was questioned on 23 September 1998 at 11.50 a.m. by Detective Chief Inspectors Luijken and Gonsior.
The previous night she had been asleep in her bedroom. She had been woken up at around 5 a.m. by a loud banging sound. Shortly afterwards she had heard a large number of reports in rapid succession. She had got out of bed and opened the door of her bedroom. She had seen her mother (the applicant) lying on the landing right in front of the stairs leading downwards and her father lying in the shower, which was about two meters away from the stairs. Her father had initially been lying face down, but had turned onto his back and looked in her direction. He had then closed his eyes and turned his head.
Ms Marie Claire de Pool had been on her knees next to her father in the shower supporting him. She had however quickly been dragged away by two of the persons in blue and taken downstairs. During the short time when she had been with her father he had not spoken, he had been unresponsive. The light in the shower had been on.
Ms Marie Claire de Pool remembered hearing three or more shots fired in quick succession.
Ms Marie Claire de Pool was left with questions about the need for the police to force their way into the house and fire at her parents. She was not aware that her father did anything illegal. She was angry about the time taken by the ambulance to arrive. She knew nothing about firearms found in the house.
Detective Chief Inspectors Luijken and Gonsior questioned Ms Marie Claire de Pool a second time on 3 November 1998.
She supplemented her earlier statement with further detail.
Ms Marie Claire de Pool had not seen or handled any firearms in the course of the incident but she was used to the presence of firearms in the house. Her father had always carried one, and had often given one in her safekeeping. The previous day, 22 September 1998, she and her father had gone out together and she had been carrying what she described as a small type of pistol. At her father's request she had shown the pistol to a waiter in a restaurant.
Ms Marie Claire de Pool was questioned a third time on 15 December 1998, this time by Detective Chief Inspectors Gonsior and Van Burink.
She did not remember the waiter to whom she had shown the pistol on 22 September 1998. She recognised firearms on photographs which were shown her as weapons which she had seen in the house; they might have belonged to her late father or her brother. However, these pictures did not show the pistol which she had shown to the waiter.
She did not know whose pistol it was which was found on top of the first-floor wardrobe, nor could she explain how it had come to be there.
Mr Giovanni Adelberto de Pool, brother of Mr R.C. de Pool, was questioned on Curaçao by Detective Chief Inspector Gonsior in the presence of Detective (landsrechercheur) Edson Kenaro Kirindongo who was assigned to the Curaçao Procurator General's Department (parket van de Procureur-Generaal in Curaçao).
On the night of 22 and 23 September 1998 he had been sleeping on the settee in the lounge of his brother's house in Spijkenisse. Before going to sleep he had bolted the outside door.
He had been woken up by two or three loud bangs against the front door. He had jumped up from the settee. He had seen several individuals crawl into the house through the opening left by the broken pane in the lower panel of the front door. He remembered four persons dressed in black wearing headgear. He had called out: “Who are you?” but received no answer. These persons had moved towards the staircase in a crouched position. Having reached the staircase, they had then stood up and pointed pistols upstairs. He had taken them for armed robbers and fearing for his life had not dared to act. Up to this point the events had taken a minute at most.
The first of these persons, whom Mr Giovanni Adelberto de Pool remembered as a fat man, had pointed his pistol up the stairs. Mr Giovanni Adelberto de Pool had concentrated on him because the others had gone upstairs. Mr Giovanni Adelberto de Pool had heard three or four loud reports which he had taken to be pistol shots. He had moved to a better vantage point from which to see what was happening and had heard Ms Marie Claire de Pool and Roberto Timothy de Pool shout: “You lot are bastards” (Jullie zijn gemeen).
At almost the same moment he had heard the persons in black shout: “Come downstairs”. The time taken by these events up to this point was no more than two minutes at most.
The fat man had then turned towards Mr Giovanni Adelberto de Pool. It was only now that Mr Giovanni Adelberto de Pool had been able to read the word “police” on his black clothing.
Afterwards Mr Giovanni Adelberto de Pool and Mr Robert de Pool had been taken to the police station, where the handcuffs had been removed, and kept there for an hour. Mr Giovanni Adelberto de Pool had then been allowed to leave but not to return to his brother's house, which was being searched.
Upon being released, at approximately 6.00 a.m., Mr Giovanni Adelberto de Pool had telephoned relatives in Curaçao from a public telephone box and told them what had happened. He had not then been informed that his brother was dead.
Detective Chief Inspector showed Mr Giovanni Adelberto de Pool a photograph of a revolver which had been found in Roberto Timothy de Pool's room. Mr Giovanni Adelberto de Pool stated that he had seen a weapon rather like that in Roberto Timothy de Pool's room but had never seen his brother with a firearm.
Mr Roberto Timothy de Pool was questioned on Curaçao by Detective Chief Inspector Gonsior in the presence of Detective Kirindongo on 1 December 1998.
On the night of 22 and 23 September 1998 Mr Roberto Timothy de Pool had been asleep in his room in the attic of the house. He had been woken up by a loud bang and shouting. His first thought had been that Ms Marie Claire de Pool was having an epileptic fit.
He had dashed downstairs. While still on the stairs he had heard a number of reports – he did not remember how many. Arriving on the first-floor landing, he had seen Ms Marie Claire de Pool come out of her bedroom. He had also seen his parents standing on the landing. Both were injured, his mother in the left arm and his father in the right-hand side of his chest. His father's injury had bled less than his mother's. His father had stood in the door opening of the bathroom, supporting himself against the door posts. He had seen his father sink to the floor, sit down and lie back slowly on the floor of the bathroom. Ms Marie Claire de Pool had gone up to him and knelt by his side, holding him in a sort of embrace.
Looking downstairs, Mr Roberto Timothy de Pool had seen two objects which he described as screens with spyholes which were marked “police”. Behind these screens there had been at least two persons armed with pistols which they had kept aimed at the first floor landing. He had then realised that there were police officers in the house and that the reports which he had heard in relation to his parents' injuries must have been pistol shots.
He had then heard shouts of “Police, come downstairs”. This was the first time that he had heard these persons identify themselves as police.
The whole incident had taken only several seconds up to this point.
Immediately afterwards Mr Roberto Timothy de Pool and Mr Giovanni Adelberto de Pool had been taken to the police station. Mr Roberto Timothy de Pool had been asked whose the firearms were which had been found in his bedroom. He had denied all knowledge. He had then been formally arrested. An hour later he had asked after his family. A police officer called Mr L. had said to him bluntly: “Well my lad, I'll tell you in telegramese. Your father has died. So whose are the guns?” (Jongen, ik zal het in telegramstijl vertellen. Jouw vader is overleden en van wie zijn de wapens?)
Mr Roberto Timothy de Pool had not seen his father or any other member of the family with a firearm; nor had he seen one at all, or wielded one himself during the incident.
He admitted that he had had three firearms in his bedroom: one UZI submachine gun which was out of order, one .38” calibre revolver and one small .25” pistol. He did not, however, recognise the silver-coloured pistol of which he was shown a photograph and had no idea whose it might be.
Police Sergeant Smulders of the Haaglanden police force was questioned on 16 November 1998 by Detective Chief Inspector Luijken.
On 23 September 1998 Sergeant Smulders had been the co-ordinator of a search team involved in a search of the house inhabited by the De Pool family. Shortly before 5 a.m. the arresting team commander had telephoned him to tell him that an entry was about to be made; at 5 a.m. precisely the arresting team commander had called again to say that the team were entering the house. Shortly afterwards Sergeant Smulders had been told that there had been a shooting incident.
The search took place, later than planned, at 8 a.m. that day, under the supervision of Investigating Judge Silvis.
Sergeant Smulders had found a small silver-coloured pistol bearing traces of blood on top of a wardrobe located on the landing.
Other documents relating to the investigation of the case include, among others, the following:
This official record is dated 23 September 1998. It was drawn up and signed by Police Officer 0102. Although the name of this police officer – a police sergeant – is not disclosed, this code number does not correspond to any officer known to have participated directly in the attempt to arrest Mr R.C. de Pool, all of whom have different code numbers.
It is stated that Police Officer 0102 collected the firearms used by the members of the arresting team who had attended the incident. These were all Walther P5 pistols. Their serial numbers and the number of the police officers to whom each weapon had been issued are all recorded. It is further recorded that the weapons were all labelled and packaged. In consultation with the State Criminal Investigation Department, they were handed to the local head of the criminal investigation unit (Chef Recherche), a member of the Rotterdam-Rijnmond police force.
An official report dated 24 September 1998 by Police Sergeant Reinder Jan Koning and Police Officer (agent) Gerard Johannes van der Kooy, both of the Rotterdam-Rijnmond police force, states that these two officers seized the body of Mr R.C. de Pool on Wednesday 23 September 1998 at 5.45 a.m., immediately after the police doctor had pronounced Mr R.C. de Pool dead. The body was taken to the Forensic Laboratory in Rijswijk by a firm of undertakers.
Two other police officers of the Rotterdam-Rijnmond police force, Police Officer Jacoba Carolina van der Waal and Senior Police Officer Irma van der Heijdt, witnessed the autopsy, which commenced at noon on the same day. Afterwards, the pathologist, Dr R. Visser, informed them of his provisional findings. These were that Mr R.C. de Pool had been shot through the chest, which had caused, among other things, perforation of the lungs and the liver, attended by massive internal bleeding. Death would have been caused by organ damage and blood loss. No other, or additional, cause of death was apparent. The same firm of undertakers had then taken the body to a mortuary in Rotterdam. These two police officers officially recorded these events on 24 September 1998.
A separate record by Police Officer Van der Waal, also dated 24 September 1998, gives an account of the seizure of a bullet and a pair of shorts taken from the body.
An official record by Police Inspector Jan Jacobus van Leeuwen, of the Rotterdam-Rijnmond police force, and Officer van der Kooij, also dated 24 September 1998, states that the body of Mr R.C. de Pool was found by members of the arresting team on 23 September 1998 at around 5 a.m., in his home where he was presumed to have died. The probable cause of death is given as “Shooting incident at time of arrest” (Schietincident bij aanhouding). The body had been examined by the police doctor, Dr J.F. van Geenhuizen. It had then been seized, on the orders of the public prosecutor, and entrusted to Dr R. Visser for autopsy. Afterwards, the body had been identified as that of Mr R.C. de Pool by the applicant and by Ms Marie Claire de Pool.
An official record by Police Inspector Jan Jacobus van Leeuwen and Police Officer Van der Kooij dated 25 September 1998 gives a summary and an overview of the other official records. It records in addition that the pair of shorts taken from the body of Mr R.C. de Pool was destroyed after consultation with the applicant.
This is a document written by hand on the letterhead of the Laboratory for Forensic Pathology (Laboratorium voor gerechtelijke pathologie), headed “R.C. de Pool, born 30-01-1956”, dated 23 September 1998 and bearing an illegible signature.
It notes one gunshot entry wound in the right side of the chest, the path of the bullet running towards the left side and slightly towards the head, perforating the right chest cavity, the midriff, the right lobe of the liver, the spine (tenth thoracic vertebra), the left chest cavity and the lower lobes of both lungs. A bullet was found in subcutaneous muscle on the left side towards the back, outside the chest cavity. In the left chest cavity 1,000 cubic centimeters (cc) of blood and air was found, and in the right chest cavity 850 cc of blood.
Bloody fluid was found in the respiratory system and, in lesser quantity, in the abdominal cavity.
Skin lacerations were found on both wrists, superficial skin damage was found on the forehead and the inside of the right upper arm and elbow, and perforations that looked like needle marks were found on both arms.
Tissue would be preserved for further testing.
It is concluded that a single shot caused the above internal injuries, which in themselves were sufficient to explain the death of the subject. There was no pathological abnormality that might have been a contributory factor.
This report relates the results of an external examination of the body of Mr R.C. de Pool. It is dated 25 September 1998 and signed by J.F. van Geenhuizen, coroner (lijkschouwer) of the municipality of Rotterdam, who is also mentioned in the file as the police doctor.
Dr van Geenhuizen examined the body at 6.15 a.m. on 23 September 1998 in the bathroom of the house, lying on its back. There was blood on the floor and walls of the bathroom and on the landing. The body was covered in blood. Rigor mortis had not yet set in; the body still had some residual warmth.
A round opening in the skin was found in the right flank, close by the ninth rib, about one-half or three-quarters of a centimeter in size, identifiable as a gunshot entry wound. An exit wound was not noted. On the left half of the chest “crackling” was noticeable over a considerable surface, consistent with a subcutaneous accumulation of air caused by internal pulmonary injury. No other external injury was found, albeit that there was still a pair of handcuffs attached to the left wrist.
It is mentioned that Mr R.C. de Pool was hit by a bullet during a police raid in his home at approximately 5 a.m. It is concluded that his death was not natural and was probably caused by internal bleeding due to a gunshot wound. The time of death was approximately 5.15 a.m.
An official record dated 24 September 1998 and signed by Inspector Van Leeuwen and Police Officer Van der Kooij states that after the autopsy the body was shown to the applicant and Ms Marie Claire de Pool, who identified it as that of Mr R.C. de Pool.
An official report dated 24 September 1998 by Police Sergeant Koning and Police Officer Van der Kooy states that one spent cartridge was found in the lounge of the De Pool residence, close by the door to the hallway, and another at the foot of the staircase. A spent bullet was found lying on the bed in the master bedroom on the first floor. All these items were seized. On the orders of Police Inspector Van Leeuwen they were handed over to forensic experts of the Rotterdam-Rijnmond police force. A separate document, signed by Police Officer Van der Kooy and appended to this official record, states that there is no known owner of these items.
An official report dated 24 September 1998 by Police Sergeant Koning states that at on 23 September 1998 at 8.50, while the house search was in process, the investigating judge seized a pistol. The weapon is described as a Beretta 6.35 mm calibre pistol, with a silver-coloured casing and a black receiver. It had been loaded with four live rounds in the magazine and one chambered. On the orders of Police Inspector Van Leeuwen it was handed over to forensic experts of the Rotterdam-Rijnmond police force.
This official record, dated 8 October and signed by Investigating Judge J. Silvis and Registrar (griffier) K. Broere, relates the search by the former on 23 September 1998 of the house inhabited by Mr R.C. de Pool. It mentions that in view of the urgency of the search the authority of the Regional Court had to be dispensed with. The police officers who participated or attended – and who included Police Sergeant Smulders (see below) and Detective Chief Inspectors Luijken and Gonsior – are mentioned by name.
The search began at 8.04 and ended at 10.45 a.m., after which the investigating judge and the persons assisting him left the house.
The objects found and seized included, among others:
An automatic firearm, calibre 9 mm, a 6 mm calibre firearm and a .38” calibre revolver, found in the bedroom of Mr Roberto Timothy de Pool, as well as several rounds of live ammunition;
One blood-spattered black and silver pistol, found on some bags located on top of a wardrobe on the landing;
Seventeen rounds of live ammunition and a canister of tear gas, found in the back bedroom;
One more pistol, 9x19 mm calibre, found on a shelf in a cupboard underneath the stairs.
This report dated 23 September 1998 by four technical detectives of the Rotterdam-Rijnmond police force, Robert de Haan, Marinus Cornelis Bos, Cornelis Wilhelm Bruins and Willem Frederik de Planqué, relates various technical investigative measures. Thus, in the original – the photocopy submitted to the Court does not contain usable illustrations – it contains photographs and diagrams showing the damage to the front door of the house, the locations of Mr R.C. de Pool's body, the two spent cartridges, the spent bullet, the black and silver pistol and various blood stains. It also states that traces of blood found in the house and on the black and silver pistol have been secured for DNA testing.
The eight Walther P5 service weapons used by the members of the arresting team were also handed to these detectives.
It is mentioned that the body was identified as that of Mr R.C. de Pool by its fingerprints.
In a report dated 28 September 1998, two ballistics experts holding the rank of police sergeant and belonging to the Rotterdam-Rijnmond police force, Dirk Groeneveld and Hans Dirk van Noordennen, relate their examination of the two spent cartridges, the spent bullet found in the De Pool residence and the bullet taken from the body of Mr R.C. de Pool.
The bullets were identified as 9 mm parabellum, type Action 3. The cartridges were identified as 9 mm parabellum; the markings showed that they are standard police issue.
The nine pistols handed in are all identified as standard police issue Walther P5. Six of these were found to be loaded with nine live rounds, two contained eight live rounds and one contained only seven rounds. The ammunition was all standard police issue (Dynamit Nobel, Action 3).
Microscopic examination showed that the cartridges and most probably the bullets also had been fired from the pistol which had been found to contain only seven rounds – the pistol reported by Police Officer 0102 (see above) to have been taken from Police Officer 0308. This pistol was found to be in working order.
This report, also dated 28 September 1998, is also by the two ballistics experts Groeneveld and Van Noordennen.
The pistol is described as a Beretta Bantam 6.35 mm calibre single-action semi-automatic in working order. It had not been fired recently. It bore traces of blood but no fingerprints usable for identification.
The weapon had been delivered for examination loaded with four rounds in the magazine and one chambered. The safety catch was in the “fire” position.
This document, dated 30 September 1998, relates that there were two wardrobes on the landing of the house. There were suitcases, bags and clothes piled on top of them. Sergeant Smulders took down a large black bag from one of them; as he did so, a small shiny firearm fell from on top of this bag onto the landing behind him. There were spots of blood on it. Sergeant Smulders secured this weapon for the police technical experts. The investigating judge seized it.
In a statement made on oath and dated 12 October 1998, Chief Inspector Bernardus Gerardus Wennekendonk, commander of the Rotterdam-Rijnmond arresting team, declares that Police Officer 0308 joined the Rotterdam-Rijnmond arresting team on 1 September 1995. After finishing basic arresting team training he joined one of the sections on 1 January 1996 as a team member. Throughout 1996 he was assigned a mentor, after which he began to function independently.
From 1 January 1998 until 22 September 1998 Police Officer 0308 spent forty-two hours on marksmanship and firearms training; he passed the marksmanship test on 28 July 1998. During the same period he spent ninety-four hours in arrest procedure training and exercises and 204 hours on physical training.
Sports and firearms instructors had informed Chief Inspector Wennekendonk that Police Officer 0308's physical and arrest procedure skills were excellent and that he was a good marksman.
A report by the forensic expert A. Kloosterman, dated 23 November 1998, states that the DNA profile of blood found on a firearm presented for examination corresponded to the DNA profile of Mr R.C. de Pool. The chance of another person chosen at random being found to possess the same DNA profile was stated to be many times smaller than one in a million. The blood sample taken from the firearm contained an admixture of a relatively small quantity of cellular material from another, unnamed, individual.
A letter from the physiotherapist Dr P.J. Janssens, dated 11 December 1998, states that the applicant has sustained injuries including damage to nerve tissue as a result of her bullet wound requiring her to do mobility excercises up to, but not beyond, her pain threshold in order to regain the use of her hand once the nerves have healed.
On 10 August 1999 the Rotterdam public prosecutor wrote to the applicant's then counsel informing him that a preliminary judicial investigation had been undertaken by an investigating judge based on a manslaughter charge against Police Officer 0308. The information which this investigation had yielded had persuaded the public prosecutor that no fault could be found with either the decision to deploy an arresting team or the preparation of the arrest operation. The public prosecutor's letter further contained the following passage:
“I consider it likely that Police Officer 0308 went up the stairs and was there confronted with a pistol aimed at him by Mr R.C. de Pool and then, in a reflex, fired twice in the direction of Mr R.C. de Pool. The location of the injury found on Mr R.C. de Pool is consistent with the position of someone who has turned to the right and is holding his arm outstretched in the direction of the staircase. The same applies to the injury found on Ms C.S.E. Romijn. The fact that Mr R.C. de Pool's and Ms C.S.E. Romijn's blood was found on a firearm makes it likely that this weapon was handled by Mr R.C. de Pool.”
The letter went on to express the opinion that the finding of a trial court would most probably be that Police Officer 0308 had acted in self-defence. It would therefore serve no reasonable purpose to bring a prosecution.
A subsequent exchange of letters made it clear that the public prosecutor considered Police Officer 0308 entitled to claim self-defence in respect of both the death of Mr R.C. de Pool and the wounding of the applicant.
On 1 September 1999 the applicant, through her counsel, lodged two separate complaints about the failure to bring a prosecution with the Court of Appeal (gerechtshof) of The Hague. The first addressed the grievous bodily harm caused to the applicant herself. The second addressed the death of Mr R.C. de Pool. Both named Police Officer 0308 and named him as the suspect to be prosecuted.
In a report dated 27 September 1999 the Chief Public Prosecutor came to the same conclusions as the public prosecutor. This document mentions that the incident was re-enacted (reconstructie) seven times and recorded on video tape, with the active involvement of the applicant, Police Officers 0207, 0107, 0308 (the suspect) and 0309 and three investigators; it gives a detailed reconstruction by the Chief Public Prosecutor of the probable course of events.
On 19 November 1999 the Advocate General to the Court of Appeal submitted an advisory opinion recommending that the applicant's complaint be dismissed.
On 21 January 2000 the applicant, now represented by different counsel, lodged additional submissions to the effect that it was open to doubt that Mr R.C. de Pool had in fact pointed a pistol at Police Officer 0308 and arguing in addition that Police Officer 0308 might have done more to avoid causing casualties.
A hearing was held in camera on 23 February 2000. Police Officer 0308 was not summoned to attend.
The Court of Appeal gave its decision, dismissing the applicant's complaint, on 23 March 2000. Its reasoning included the following:
“7. It appears from the file that [Mr R.C. de Pool's] arrest by an arresting team, permission for which was given by the Acting Chief Public Prosecutor, was indicated because R.C. de Pool posed a firearms hazard.
The decision to deploy the arresting team was arrived at in a correct fashion and the arresting team acted in accordance with the procedures laid down for arresting a person who poses a firearms hazard otherwise than in flagrante delicto.
8. Briefly, what happened was this. Police Officer 0308 was the first member of the arresting team to enter the house, calling out 'Police, police', and was confronted on the stairs by the applicant and R.C. de Pool.
Police Officer 0308 has stated that in the light of his torch he saw a silver-coloured object in the hands of R.C. de Pool, upon which he took his pistol out of its holster. Police Officer 0308 saw R.C. de Pool push the woman (the applicant) aside and extend the shiny object in his direction in a flowing movement. In that movement Police Officer 0308 saw that it was a firearm. At that moment Police Officer 0308 fired, which led to the results already mentioned. Afterwards, a firearm apparently belonging to R.C. de Pool was in fact found. For the remainder, the Court of Appeal refers to the extensive statement of fact in the advisory opinion of the Rotterdam Chief Public Prosecutor, dated 27 September 1999, which the Court of Appeal finds convincing.
8.1. The Court of Appeal is of the opinion that – taking all circumstances into account – a sufficiently credible case has been made out that [Police Officer 0308] could successfully claim self-defence (noodweer) or excusable violence in excess of self-defence needs (noodweer-exces). ...”


ITEMID: 001-115710
LANGUAGEISOCODE: ENG
RESPONDENT: FIN
BRANCH: ADMISSIBILITY
DATE: 2012
DOCNAME: KAIKKO v. FINLAND
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: David Thór Björgvinsson;George Nicolaou;Ineta Ziemele;Krzysztof Wojtyczek;Päivi Hirvelä;Vincent A. De Gaetano;Zdravka Kalaydjieva
TEXT: 1. The applicant, Mr Pertti Kaikko, is a Finnish national, who was born in 1951 and lives in Kirkkonummi. He was represented before the Court by Mr Esko Sydänmäki who was granted leave to represent the applicant by the President of the Chamber (Rule 36 § 2 of the Rules of Court).
2. The Finnish Government (“the Government”) were represented by their Agent, Mr Arto Kosonen of the Ministry for Foreign Affairs.
3. The facts of the case, as submitted by the parties, may be summarised as follows.
4. On 1 June 1970 the applicant became a civil servant employed by the Bank of Finland (Suomen Pankki, Finlands Bank; henceforth “the Bank”) where he worked until his retirement on 1 September 2006.
5. On 3 May 1977 the Trustees of the Bank (pankkivaltuusto, bankfullmäktige) introduced an equal retirement age of 60 years for all men and women who entered the service of the Bank on that date or later. The retirement age for women was thereby raised from 55 years to 60 years while for men the retirement age remained unchanged. As the rule was not retroactive, the different retirement ages for men and women still applied to those persons who had started employment before 3 May 1977.
6. On 17 June 1998 the Trustees of the Bank amended the pension rules of the Bank so that men who had joined the Bank prior to 3 May 1977 and who continued their employment until retirement were also granted an opportunity to lower their retirement age from 60 to 55-59. For each month the retirement age was lowered, and the pension accrued prior to 1 January 1994 was reduced by 0.33%. At its highest the early retirement reduction was 19.8% for five years. Under the pension rules of 13 December 1966 the retirement age for women who had joined the Bank prior to 3 May 1977 was 55 and no reductions applied to pension accrual.
7. Since 10 March 1994 the pension rules of the Bank had provided that a civil servant who applied for early retirement, who had been employed by the Bank prior to 3 May 1977 and who had 30 years of service behind him, had a right to a pension guarantee (takuueläke, garantipension) which was 60% of the salary. This pension guarantee was increased by 1.5% for each year the person’s personal retirement age (henkilökohtainen eläkeikä, individuell pensionsålder), which was 60 years for men and 55 years for women, fell short of 63 years (the personal retirement age before 1 December 1993). This guarantee was significantly reduced as from 1 January 2005.
8. On 25 August 2006 the applicant was granted a pension, which was reduced by 19.8%, or 424.54 euros (EUR) per month, on the ground that he had retired at the age of 55. This method of calculation was chosen as it was more beneficial to the applicant than calculating his pension with a 50% pension guarantee which included the increase of 4.5% as his personal retirement age was 60 years. The pension so calculated amounted to EUR 3,015.33 per month, starting from 1 September 2006.
9. On 5 October 2006 the applicant submitted a letter of appeal to the Bank, requesting that his pension be recalculated so that the years 55-63 brought him an additional pension of 1.5% per year, thus altogether 12%. He claimed that the amendments made to the pension guarantee on 1 January 2005 had led to discrimination between men and women due to the fact that the theoretical personal retirement age for men was 60 years, even if they retired earlier, whereas for women it was always 55 years. In the applicant’s situation the percentage for accrued pension was 4.5% while for a woman in the same situation it would be 7.5% higher, at 12%. He also complained about the fact that his pension had been reduced by 19.8%, or EUR 424.54 per month, on the ground that he had retired at the age of 55. As the Bank could not rectify the pension decision, it referred the case on appeal to the Insurance Court (Vakuutusoikeus, Försäkringsdomstolen) on 7 November 2006.
10. On 20 November 2006 the Bank issued a new, interim pension decision to the applicant as the pension decision of 25 August 2006, which had been appealed against to the Insurance Court, was partly rectified. The rectified pension amounted to EUR 3,031.21 per month. The applicant had no right to appeal against this interim pension decision.
11. During the Insurance Court proceedings, the court requested a statement from the Gender Equality Board (tasa-arvolautakunta, jämställdhetsnämnden). In its statement of 8 May 2009 the Board stated that there was a presumption of discrimination in two respects: different personal retirement ages for men (60 years) and for women (55 years) as well as the fact that the reduction was made only in respect of men who retired early, not in respect of women. It further stated that the Bank had not been able to give an acceptable reason for this discrimination. Moreover, the lack of transparency in the calculation of the Bank’s pensions prevented the effective supervision of the principle of equal pay.
12. The State Treasury (Valtiokonttori, Statskontoret) and the Finnish Centre of Pensions (Eläketurvakeskus, Pensionsskyddscentralen) were also asked to submit a statement in the matter. In its statement of 20 January 2009, the State Treasury stated that, had the applicant been subject to the State Pension Act (valtion eläkelaki, lagen om statens pensioner), his pension guarantee would have been calculated in exactly the same manner as in the pension decision of 25 August 2006. In its statement of 19 January 2009, the Finnish Centre of Pensions noted that the central question was whether the applicant’s personal retirement age was interpreted to be 60 or 55 years. Concerning private sector pensions, the Centre noted that there might be situations where a man’s pension remained lower than a woman’s who had a similar work history and who retired at the same age.
13. On 2 March 2010 the Insurance Court partly accepted, partly rejected the applicant’s appeal. As concerned the percentage for accrued pension, the court accepted the applicant’s appeal and ordered that the percentage be 12% instead of 4.5%. It found that in this respect the pension was not calculated in an equitable manner in regard to men and women, and that women were put in a more favourable position than men. The applicant’s personal retirement age should also have been 55 years, as was the case for women in the same position. As this inequality affected also the time after 1 January 1994, the date on which the EU rules on equal pay became applicable in respect of Finland, the applicant’s pension had been calculated in a manner contrary to EU law during the period starting from 1 January 1994 until 31 December 2004. In this respect the case was referred back to the Bank for a new decision. As to the rest of the applicant’s complaints, they were rejected. As concerned the reduction of 19.8% due to early retirement, the court found that as the reduction concerned the time before 1 January 1994, it was not contrary to EU law.
14. On 18 March 2010 the Bank issued a new pension decision to the applicant. The percentage for accrued pension was now 12%, increasing his personal pension guarantee percentage to 57.5%. The pension calculated in this manner amounted thus to EUR 3,281.60 per month. The applicant did not appeal against this decision.
15. By letter dated 5 August 2010 the applicant petitioned the Chancellor of Justice (oikeuskansleri, justitiekanslern), claiming that the Insurance Court decision was illegal as it was not adequately reasoned and thus not transparent in respect of the rejected complaints. Moreover, he complained about the fact that his pension guarantee still remained at 57.5% even though the Insurance Court had, on 25 October 2005, amended a similar pension decision in the case of Mr K.H. and granted him a pension right amounting to 60% on the ground that he fulfilled the pension guarantee requirement as he had completed 30 years of service.
16. It is not known whether the applicant’s petition is still pending before the Chancellor of Justice.
17. On 27 July 2011 the applicant lodged an extraordinary application with the Insurance Court for the reopening of the proceedings as far as they related to the decision of 2 March 2010. These proceedings are still pending before the Insurance Court.
18. Article 6 of the Constitution of Finland (Suomen perustuslaki, Finlands grundlag; Act no. 731/1999) provides that:
“No one shall, without an acceptable reason, be treated differently from other persons on the ground of sex, age, origin, language, religion, conviction, opinion, health, disability or other reason that concerns his or her person.”
19. Article 15 of the Constitution provides that the property of everyone is protected.
20. Section 7 of the Act on Equality between Women and Men (laki naisten ja miesten välisestä tasa-arvosta, lagen om jämställdhet mellan kvinnor och män; Act no. 609/1986) prohibits both direct and indirect discrimination based on gender. According to its section 7, subsection 2, direct discrimination means, inter alia, putting women or men in an unequal position on the basis of gender. Section 8, subsection 1, point 3, of the same Act provides that:
“An employer’s conduct constitutes discrimination prohibited under the Act if the employer applies the pay or other terms of employment in such a way that one or more employees, because of their gender, find themselves in a less favourable position than one or more other employees performing the same work or work of equal value in the employer’s service.”
21. Section 11 of the Act on the Bank of Finland (laki Suomen Pankista, lagen om Finlands Bank; Act no. 214/1998) provides, inter alia, that:
“The Trustees of the Bank shall confirm the Bank of Finland’s Pension and Survivors’ Pension Regulations and issue regulations concerning the management of the Bank’s pension liability, upon proposal of the Directorate.”
22. Section 9 of the Act on Officials of the Bank of Finland (laki Suomen Pankin virkamiehistä, lagen om Finlands Banks tjänstemän; Act no. 1166/1998) provides the following:
“The Bank of Finland shall treat all officials in its service equally to ensure that no-one is unjustifiably treated differently because of his origin, citizenship, gender, religion, age, political or union activities, or on other comparable bases.
The Bank of Finland shall not forbid an official to join or belong to an association or pressure him to join a particular association, nor forbid him to resign from such.”
23. Section 33, subsections 1-3, of the same Act provide the following:
“An official who considers that the Bank of Finland has not rendered him the financial benefit due to him from his employment relationship may submit a written request for rectification to the Board. No request for rectification can be made in a matter that falls within the jurisdiction of the Labour Court, unless the Labour Court has decided not to settle the matter under section 1, subsection 2, of the Act on the Labour Court (646/1974).
Rectification of a decision by which the Bank of Finland has issued an official with a warning, laid him off or given him notice, cancelled the service relationship, suspended him from office or decided on a matter concerning his pension contribution or secondary occupation, as well as a decision referred to in paragraph 6 on a request for rectification referred to in paragraph 1 can be requested by appealing to the Supreme Administrative Court in accordance with the provisions of the Administrative Judicial Procedure Act (586/1996). A matter referred to in this paragraph shall be treated as urgent by the Supreme Administrative Court.
Decisions of the Board concerning pensions can be appealed against to the Insurance Court. Otherwise, as regards a request for rectification on pension, the applicable provisions of the Act on State Pensions (280/1966) shall apply.”
24. Section 58, subsection 1, of the same Act provides that
“[t]he right of an employee of the Bank of Finland to a pension paid from the Bank’s funds is determined, to the extent applicable, on the same grounds as state pension cover. State pension cover refers to the right to pensions, survivors’ pensions and other benefits which are payable from the state’s funds and the content of and eligibility for which are regulated by the State Pensions Act and the related legislation. Pensions and survivors’ pensions are granted by the Directorate of the Bank.”
25. More detailed provisions on the payment of pensions and survivors’ pensions and pension cover in other respects are contained in the Bank’s Pension and Survivors’ Pension Regulations (Suomen Pankin eläke- ja perhe-eläkesäännöt; pensionsstadgan och familjepensionsstadgan för Finlands Bank). The Trustees of the Bank of Finland, elected by the Parliament, adopt the Regulations on the basis of the Directorate of the Bank’s proposals.
26. Section 3, subsection 1, of the Pension Regulations with its earlier wording, as amended on 14 March 1972, read as follows:
“Eligibility for old age pension requires that the beneficiary has completed his or her service and reached the age of 65 years, or 60 years if the beneficiary, immediately before retirement, has been serving the Bank of Finland or its Security Printing House for at least one month, and 55 years in the case of a female employee. A beneficiary who retires as a member of the Directorate is entitled to old age pension irrespective of age.”
27. The lower retirement age of 55 years for women was applied until 3 May 1977, when the amendment of section 3, subsection 1, of the Pension Regulations entered into force. With this amendment the retirement age for women was raised from 55 to 60 years but the retirement age for men remained unchanged at 60 years. The amendment took effect as from its date of adoption so that it was applicable to beneficiaries whose service relationship with the Bank began on 3 May 1977 or thereafter.
28. For the equalisation of the retirement ages, men were granted the right to opt for a lower retirement age. On 17 June 1998 the Trustees of the Bank amended the entry into force provision of the Pension Regulations in the following manner:
“However, as of 1 January 1994, the earlier provision is applicable both to women who entered service in the Bank prior to 3 May 1977 and to men who entered service in the Bank before that date.
The beneficiary has the right to choose between the lower retirement age, based on the earlier provision, or the higher retirement age. If a man chooses the lower retirement age, the amount of his pension accrued on the basis of the duration of his service is, in respect of the service prior to 1 January 1994, reduced by 0.33 percentage units per month of earlier retirement.”


ITEMID: 001-57513
LANGUAGEISOCODE: ENG
RESPONDENT: DEU
BRANCH: CHAMBER
DATE: 1986
DOCNAME: CASE OF KOSIEK v. GERMANY
IMPORTANCE: 2
CONCLUSION: Preliminary objection rejected (incompatibility);No violation of Art. 10
JUDGES: C. Russo
TEXT: 11. Mr. Rolf Kosiek, who is a German national born in 1934, lives in Nürtingen. After studying physics for several years, he sat his degree examinations (Diplomhauptprüfung) in November 1960 at the University of Heidelberg, where he took a doctorate in physics three years later. From 1 September 1962 to 31 October 1968, he worked in the First Institute of Physics at the same University, first as an employee (Angestellter) and then, from 1 April 1963, as a research assistant (wissenschaftlicher Assistent) with the status of temporary civil servant (Beamter auf Widerruf).
His appointment, initially limited to four years and subsequently extended, was terminated with his agreement after he had been told by his Director that he could not expect a further extension. According to the Government, these assistantships are used to train scientists and give them an opportunity to prepare themselves for an academic career. For this reason they are deliberately awarded on temporary contracts which should have a maximum total duration of six years.
12. On 26 October 1962, shortly after taking up his duties, Mr. Kosiek signed a statement certifying that he had been given notice of the Federal Government’s decision of 19 December 1950 on anti-democratic activities by civil servants and of the decree issued on 12 September 1955 by the Land Government of Baden-Württemberg. Such a statement was required by the decree, whose first paragraph read:
"It is taken for granted that candidates for civil-service posts shall not belong to any organisation which sets out to abolish the free democratic constitutional system (freiheitliche, demokratische Grundordnung) or support such tendencies in any other way, directly or indirectly. If necessary, appointment or employment should be regarded as having been brought about by wilful deceit (arglistige Täuschung)."
The third paragraph stated that it was for the authorities concerned to take "the necessary action (disciplinary proceedings, dismissal)" "against staff (Bedienstete) who fail in their duty of loyalty".
13. In 1965, Mr. Kosiek joined the National Democratic Party of Germany (Nationaldemokratische Partei Deutschlands, NPD); he was chairman of the Rhine-Neckar branch from 1965 to May 1974. In 1968, he was appointed to the Executive Committee of the Baden-Württemberg section, of which he remained a member until 1978. In 1971, he was appointed the Executive Committee’s district agent for North Baden. He was also one of the three Land deputy chairmen, an appointment which was again renewed in June 1974. From autumn 1971, he served on the NPD Federal Executive Committee, where his responsibilities included university matters; he resigned in 1979. He left the NPD on 9 December 1980; he claims that he had already informed the Minister of Education and Culture, in January 1974, that he intended to leave the party as soon as he was given tenure.
He was an NPD member of the Baden-Württemberg Parliament (Landtag) from 1 June 1968 to 31 May 1972, and stood for the party in the Federal elections in the autumn of 1972, when it failed to secure any seats in the Bundestag.
Mr. Kosiek set out his political views in two books. The first of these, published in September 1972 and reprinted several times, is entitled "Marxismus? Ein Aberglaube! Naturwissenschaft widerlegt die geistigen Grundlagen von Marx und Lenin" ("Marxism? A superstition! Science disproves the intellectual foundations of Marx and Lenin"); the second, published in 1975, is entitled "Das Volk in seiner Wirklichkeit - Naturwissenschaften und Leben bestätigen den Volksbegriff" ("The People as it really is - Science and Life confirm the Concept of the Nation").
14. In 1970, he applied for a position as lecturer (Dozent) at the State Engineering College (Staatliche Ingenieurschule) in Koblenz. In March, he passed a test there, and the college asked the Ministry of Education and Culture (Ministerium für Unterricht und Kultur) of the Land of Rhineland-Palatinate to appoint him with effect from 1 March 1971.
On 15 December 1970, the Ministry informed him that another applicant had been given the post. A year later, having learned through the press that his political activities in the NPD had been the main reason for his failure to secure the appointment, Mr. Kosiek went to court to compel the Land to employ him. His case was dismissed on 24 October 1972 by the Administrative Court (Verwaltungsgericht) of Neustadt an der Weinstrasse and, on 2 March 1977, by the Land Administrative Court of Appeal (Oberverwaltungsgericht), which refused him leave to apply to the Federal Administrative Court for review on points of law.
The Court of Appeal held that he did not afford the guarantee required by section 9(1)(2) of the Land Civil Servants Act (in its version of 14 July 1970) that he would at all times uphold the free democratic constitutional system within the meaning of the Basic Law. It based its conclusions mainly on his book "Das Volk in seiner Wirklichkeit" (see paragraph 13 above).
15. In 1972, the applicant applied for a vacant post as lecturer (Dozent) at Nürtingen Technical College (Fachhochschule). With two of the other seven candidates he took a test and was interviewed. On 14 July 1972, the Lecturers’ Council (Dozentenrat) recommended the Ministry of Education and Culture to appoint him. On the same day, he was interviewed at the Ministry on the subject of his past activities as a member of the Land Parliament and his future political intentions. Immediately afterwards, he wrote to the principal of Nürtingen Technical College assuring him that he would, if appointed, keep his professional duties and private political commitment entirely separate and would not misuse his position as a teacher for political ends; he added that he had no intention of appearing in public in Nürtingen or the surrounding area as a party militant - during the election campaign for the Bundestag, for example.
The Ministry appointed him as a lecturer (Dozent zur Anstellung) with the status of probationary civil servant (Beamter auf Probe) at Nürtingen Technical College, with effect from 1 September 1972. The decision was taken by the Minister himself who, according to the Government, had known the applicant as a parliamentarian and had no doubts whatever about his loyalty to the Constitution. The Land Civil Servants Act, in its version of 27 May 1971, requires all candidates for civil-service posts - whether temporary or permanent - to give "a guarantee that they will consistently uphold the free democratic constitutional system within the meaning of the Basic Law" (sections 6(1)(2) and 8). By virtue of section 64(2) of the Act, civil servants shall undertake to bear witness (bekennen) to the said system by their every word and deed and to uphold it.
Mr. Kosiek did not have to sign a declaration of loyalty: the decree of 12 September 1955 (see paragraph 12 above) had been repealed on 4 February 1969, and it was not until 15 October 1973 that the Land Minister of the Interior issued directives implementing the decree on the appointment of extremists to the civil service which the Federal Chancellor and the Prime Ministers of the Länder had adopted on 28 January 1972 ("Ministerpräsidenten-Beschluss" - see paragraph 17 below).
On 9 November 1972, the applicant was sworn in before the principal of Nürtingen Technical College; he promised, inter alia, to abide by and uphold the Basic Law and the Land Constitution (section 65 of the Land Civil Servants Act).
16. On 17 October 1973, pursuant to section 24(1) and (2) of the Land Civil Servants Act, which makes it possible for the normal three-year probationary period to be shortened, the principal of the College requested that Mr. Kosiek be given tenure for life (Ernennung auf Lebenszeit).
After examining whether the legal conditions for tenure were fulfilled (sections 6 and 8 of the Land Civil Servants Act - see paragraph 15 above), the Ministry replied that Mr. Kosiek’s attitude and political activities had given rise to doubts concerning his loyalty to the Constitution and that he might even have to be dismissed.
17. On 13 February 1974, the applicant was interviewed on the subject of his attitude to the Constitution. On 28 February, the Ministry gave him notice of dismissal with effect from 30 June. Citing, inter alia, section 38(2) of the Land Civil Servants Act, which provides for dismissal of a probationary civil servant where he has not proved himself during the probationary period, and the decree of 28 January 1972 (see paragraph 15 above), it declared him unsuitable for the post (mangelnde Eignung): as a prominent NPD official, he had approved of NPD aims which were inimical to the Constitution (verfassungsfeindlich) and had thus shown that he did not support the free democratic constitutional system by his every word and deed and was not prepared to uphold it (section 64 of the Act). According to the Ministry, the NPD behaved in a manner hostile to the Constitution since, among other things, it rejected the idea of international understanding, human rights and the existing democratic order; specifically, it preached extreme nationalism and a racist ideology, and wished to abolish parliamentary government and the multi-party system.
The decree of 28 January 1972 on the employment of extremists is designed to ensure uniformity of administrative practice in the matter; it reiterates civil servants’ legal duty of loyalty to the free democratic constitutional system and in paragraph 2 provides (Official Gazette - Gemeinsames Amtsblatt - of certain Ministries of the Land, 1973, no. 34, p. 850):
"2. Every case must be examined and decided according to its particular circumstances. Regard must be had in the process to the following principles:
2.1. Candidates
2.1.1. A candidate who engages in activities inimical to the Constitution shall not be appointed to the civil service.
2.1.2. If a candidate belongs to an organisation engaging in activities inimical to the Constitution, this fact shall cast doubt on whether he is prepared at all times to uphold the free democratic constitutional system. As a rule such doubt shall be sufficient reason for not appointing him.
2.2. Civil servants
If a civil servant <fails to comply with his duty of loyalty to the Constitution> the appointing authority shall draw the necessary conclusions on the basis of the particular facts established in his case and shall consider whether grounds exist for dismissing him from the service (Entfernung aus dem Dienst)."
German civil servants’ special duty of loyalty to the State and its Constitution has been confirmed and clarified by the Federal Constitutional Court, in particular in a judgment on 22 May 1975 (Entscheidungen des Bundesverfassungsgerichts, vol. 39, pp. 334-391).
18. On 8 March 1974, the applicant lodged an objection (Widerspruch) against his dismissal. This was rejected by the Ministry on 3 May, and he instituted proceedings before the Stuttgart Administrative Court on 10 June.
On 8 April 1975, the Ministry revoked its decision of 28 February 1974 on the ground that it had failed to consult the Staff Committee (Personalrat) of the Technical College beforehand. At the same time, it again dismissed the applicant on the same grounds as in February 1974 - having interviewed him again and consulted the Staff Committee in the meantime - with effect from 30 June 1975. On 9 May, the Stuttgart Administrative Court accordingly stayed (einstellen) the proceedings before it, holding that the issues raised had been settled.
19. On 2 May 1975, Mr. Kosiek lodged an objection against his second dismissal, arguing, inter alia, that the criticisms levelled at him had been unjustified. He asserted that it was common knowledge that he had personally and actively upheld the free democratic system. Since becoming a teacher he had resigned from several of his NPD posts, including those of chairman of the Rhine-Neckar branch, district agent for North Baden and member of the Federal Executive Committee responsible for university matters. In addition, he had deliberately restricted his political activities in the Nürtingen-Esslingen area and had not appeared there in public. His membership of a party with aims allegedly inimical to the Constitution was no reason for dismissing him. The Technical College and the Staff Committee had supported him and had testified to his personal and professional abilities. Finally, the probationary period was now over: the period which he had previously spent as a temporary civil servant should be added to the two years and seven months which he had spent as a probationary civil servant.
On 7 May, the Land Ministry of Education and Culture rejected his objection, mainly on account of the major role he had played in NPD activities. It also referred to the Federal Administrative Court’s ruling that mere membership of an unconstitutional party might justify a civil servant’s dismissal; that being so, it was unnecessary to establish whether the applicant had restricted his political utterances, and his professional qualifications were immaterial. Finally, probation did not end automatically under civil-service law; as he had not been established, Mr. Kosiek was still a probationer and could therefore be dismissed under section 38 of the Land Civil Servants Act.
20. On 9 June 1975, the applicant challenged the Ministry’s decision before the Stuttgart Administrative Court, claiming that no definite proof had been adduced therein that his attitudes had been inimical to the Constitution. In German case-law, membership of an organisation regarded as being inimical to the Constitution was merely a possible reason for doubting a civil servant’s constitutional loyalty, and every case had to be examined in detail. The Ministry’s overall judgment did not satisfy this requirement. The applicant had always actively upheld the free democratic system - in 1968, for example, when the University of Heidelberg had been occupied; or in 1970 in Ulm, when he had retrieved the flag of the German Democratic Republic and handed it over to the public prosecutor; or again, as a member of the Land Parliament. The same was true of his writings. He could not be held responsible for NPD statements or actions which might be regarded as inimical to the Constitution. In any case, the party approved of the free democratic system within the meaning of the Basic Law. When the Land Minister appointed him as a probationary civil servant, he knew that he had been a member of the Federal Executive Committee (since 1971), a member of the Land Executive Committee (since 1968), the Land Executive Committee’s district agent for North Baden (since 1971) and chairman of the Rhine-Neckar branch of the NPD (since 1965). It was thus illogical that his commitment to the NPD should be seen as making him personally unsuitable and justifying his dismissal. The same inconsistency was apparent in earlier statements by the Minister. In December 1972, he had repeatedly stated - in the Land Parliament, on television and in interviews with the press - that Mr. Kosiek was not opposed to the Constitution and that his four-year record in Parliament showed as much.
21. On 26 January 1977, the Stuttgart Administrative Court set aside the decisions of 8 April and 7 May 1975.
The court held that the law and general principles precluded dismissing a probationary civil servant on grounds which had been known - and should have been taken into account - when he was appointed.
The Ministry had based its decision on facts already known in 1972 which it had not regarded at the time as indicating personal unsuitability. It had been aware from the decisions of the Conference of Land Ministers of the Interior (25 February 1972), quoted in the disputed decision of May 1974, that the NPD was regarded as having aims inimical to the Constitution, and it had also known that the applicant was an influential member of the party and an NPD member of the Land Parliament.
The fact that the Ministry had nonetheless appointed Mr. Kosiek showed that it regarded his personal conduct, notwithstanding his commitment to the NPD, as affording the necessary guarantee of allegiance to the Constitution. This had been clear from the Minister’s reply to a question put to him in the Land Parliament in December 1972. Thus, when it was being determined whether the applicant had proved himself during his probation, his political conduct was relevant only in so far as it had changed in the meantime. The applicant’s continuing commitment to his party could not be judged any differently from before, as the NPD’s aims had not changed in the meantime. As for his book "Marxismus? Ein Aberglaube!", which the Ministry had not originally been aware of, it was not sufficient proof of opposition to the Constitution.
The court had beforehand called the applicant to give evidence explaining a number of passages in his book. It had sought such evidence notably in order to establish whether his theory of genetic and biological inequality in humans was based on racist views and whether Mr. Kosiek drew from it conclusions which were incompatible with the principles of equality and respect for human rights enshrined in the Basic Law.
22. The Ministry appealed against this judgment on 23 June 1977. It contended that it must be free to rectify any error made during the appointment procedure; it could not be compelled to establish a probationary civil servant who lacked one of the requisite qualifications. Moreover, it had since been found that the NPD did not accept the Basic Law but was actively opposed to it and the lawful institutions. The applicant’s new book, "Das Volk in seiner Wirklichkeit", confirmed his personal views of the Basic Law; the Koblenz Administrative Court of Appeal (see paragraph 14 above) had been right to conclude from it that he did not recognise the Federal Republic and its Constitution as positive values, but extolled National Socialism.
Mr. Kosiek contended that a book which had not appeared until 1975 could not be taken into account in the present proceedings. In any case, it did not give any grounds for doubting his allegiance to the Constitution; the Koblenz Court of Appeal had incorrectly summarised it and had totally distorted the views he had expressed in it (see paragraph 14 above). For the rest, he essentially repeated the arguments he had adduced at first instance.
23. On 28 February 1978, the Administrative Court of Appeal of the Land of Baden-Württemberg allowed the appeal and dismissed the applicant’s action. In the light especially of the case-law of the Federal Constitutional Court, particularly its judgment of 22 May 1975 (see paragraph 17 above), it ruled that the impugned decisions were lawful.
After reviewing in detail the Ministry’s arguments and evidence, the Court held that it had not been proved that the NPD was pursuing aims inimical to the Constitution, that is to say, was systematically (planvoll) and actively seeking to undermine the free democratic constitutional system, bring about its abolition or jeopardise the continued existence of the Federal Republic of Germany (Article 21 of the Basic Law). Mere membership of the NPD could not therefore be construed as a sign of doubtful allegiance. Many NPD statements nonetheless did indicate a worrying tendency, and, that being so, a political party’s constitutionally suspect (verfassungsrechtlich bedenklich) views might give grounds for ascertaining the personal views of a civil servant who was a party member. A civil servant, who was bound actively to uphold the free democratic system, might accordingly be required to dissociate himself explicitly from the objectionable views of his party.
Mr. Kosiek had failed to dispel the suspicion that he approved the NPD line. On the contrary, he had identified himself with it by his many militant activities. These, and the personal views he had expressed in his book "Das Volk in seiner Wirklichkeit", cast serious doubts on his loyalty to the Constitution. In his book, which could legitimately be taken into consideration, he had played down or indeed praised, without the least reservation or criticism, circumstances and events that had marked the Third Reich. In this respect, the Land Administrative Court of Appeal shared the views of the Koblenz Court of Appeal, which had analysed the book in detail (see paragraph 14 above). Admittedly, the applicant maintained that he had written in appreciative terms only of the first phase of the Third Reich, but this showed merely that there were at least some aspects of National Socialism of which he approved, not that he disavowed it. As early as 1933, the most important fundamental rights had been suspended, separation of powers abolished, political parties disbanded, trade unions broken up and (what marked the beginning of the persecution of the Jews) "non-Aryan" civil servants dismissed. Without any reservation or criticism the applicant judged the circumstances, events and ideas of the Third Reich preferable to the current situation. It was thus impossible to believe that he also endorsed the fundamental views and principles of the Basic Law as being a priceless asset to be protected.
The Ministry had rightly concluded that Mr. Kosiek did not give any guarantee that he would at all times uphold the free democratic constitutional system within the meaning of the Basic Law, and that he had accordingly failed to prove himself during his probation. It mattered little whether he had the necessary professional qualifications and had refrained from expressing any political views at the Technical College. Before appointing him the Minister had certainly been aware of his prominence in the NPD, but this did not make the disputed revocation of his appointment unlawful. Performance of duties as a probationary civil servant was of vital importance for determining whether a probationer could be relied on to be loyal to the Constitution. The applicant should have expected the Ministry to carry out, at the end of the probationary period, a further thorough and final assessment of matters already known to it.
24. With leave of the Court of Appeal Mr. Kosiek applied for review on points of law, but the Federal Administrative Court (Bundesverwaltungsgericht) found against him on 28 November 1980.
The Ministry’s doubts about the applicant’s loyalty to the Constitution - prompted by his active membership of the NPD - were justified. In this connection, the Court of Appeal had erred in regarding membership of a party as relevant only if the party deliberately sought to undermine or destroy the free democratic system - in other words, was liable to banning by the Constitutional Court under Article 21 of the Basic Law. It was in fact sufficient if the party pursued aims that were incompatible with that system. The NPD did; and the applicant, far from repudiating its aims, had approved of them. The Ministry’s doubts had consequently not been prompted, as the Court of Appeal had held, by statements in the applicant’s book "Das Volk in seiner Wirklichkeit" but had been corroborated and strengthened by them.
Article 5(3) of the Basic Law, which was relied on by the applicant and protected freedom of art, science, research and teaching, did not lead to any different conclusion. Academics had a large measure of professional independence but that did not absolve them from their duty of loyalty to the Constitution. Notwithstanding the first sentence of Article 5(3), they remained civil servants, and a university lecturer with the status of probationary civil servant could be dismissed for unsuitability.
The Ministry had been entitled to base its decision on Mr. Kosiek’s involvement with the NPD, notwithstanding that it had been aware of this at an earlier date, and on the content of the aforementioned book, which had been published only in 1975 and mentioned in the appeal proceedings.
Lastly, the Federal Administrative Court dismissed various procedural complaints which had been raised before it.
25. On 16 March 1981, Mr. Kosiek applied to the Federal Constitutional Court to have the judgments of the Court of Appeal and the Federal Administrative Court set aside, on the ground that they contravened various Articles of the Basic Law.
In particular, he challenged the objectivity and relevance of the evidence used against him and contended that the judgments complained of had been arbitrary. The courts which had given those judgments had made no attempt to establish whether the NPD and he had, by their statements, attacked the principles of the Basic Law. The NPD and he were not in fact pursuing aims that were incompatible with the Basic Law. The views expressed in his book were covered by freedom of expression and none of them bore on any principles of the free democratic system. Moreover, they were in line with the views of most present-day historians. The judgments in issue had accordingly infringed his right, secured in Article 3 of the Basic Law, not to be discriminated against on account of his opinions. In penalising a political opponent for holding views that were not directed against the democratic system, the authorities had disregarded his right to freedom of conscience and opinion, secured in Article 4. His dismissal and the criticisms of his book amounted to unlawful interference with his freedom of expression, contrary to Article 5(1) and (3). He had also been banned from his profession (Berufsverbot), a measure which was incompatible with Article 12, since he could no longer find a university lectureship at his age. In dismissing him, the Land, in defiance of Article 33(1), had deprived him of rights recognised by all the other Länder (except Bavaria), which did not harass NPD members. Despite his suitability, professional qualifications and efficiency, he was being arbitrarily refused access to a civil-service post, or prevented from remaining in one, contrary to Article 33(2) and (3). Lastly, his dismissal - based on circumstances which were both lawful and known at the time of his appointment - was contrary to Article 103.
26. Sitting as a panel of three judges, the Constitutional Court decided on 31 July 1981 not to entertain the constitutional complaint, on the ground that it had insufficient prospects of success.
Citing its own case-law (judgment of 22 May 1975), it recalled firstly that the duty of loyalty to the State and the Constitution was one of the traditional principles of the civil service (Article 33(5) of the Basic Law). Anyone who was not clearly prepared at all times to uphold the free democratic constitutional system was thus unfit to hold a civil-service post. Any probationary civil servant who could not be relied upon to do so must therefore be dismissed on grounds of personal unsuitability. In this connection, membership of a party whose aims were incompatible with the free democratic system was a relevant consideration.
In the particular case, examination of the judgments challenged did not disclose any breach of constitutional law. Neither the findings of fact nor the conclusions of the Court of Appeal and the Federal Administrative Court were tainted by arbitrariness. The applicant’s dismissal did not breach any of the rights he relied on.
27. As his appeal against dismissal had a suspensive effect, Mr. Kosiek was able to continue teaching at Nürtingen Technical College, but the dismissal became final after the Federal Administrative Court’s judgment of 28 November 1980. He was accordingly notified on 15 December 1980 that his employment was at an end.
NON_VIOLATED_ARTICLES: 10


ITEMID: 001-60660
LANGUAGEISOCODE: ENG
RESPONDENT: AUT
BRANCH: CHAMBER
DATE: 2002
DOCNAME: CASE OF KUCERA v. AUSTRIA
IMPORTANCE: 3
CONCLUSION: No violation of Art. 6-3-c
JUDGES: Georg Ress
TEXT: 10. The applicant was born in 1957 and is presently detained at the Krems Stein prison.
11. On 20 January 1994 the Vienna Public Prosecutor filed a bill of indictment against the applicant charging him with two counts of rape under aggravated circumstances, i.e. having caused serious injuries. The Public Prosecutor submitted that on 16 June 1993 the applicant had raped A.H., had beaten and strangled her, had forced her to swallow drugs and had threatened her with death. On 5 September 1993 he had raped E.P., had beaten and strangled her, had forced her to swallow drugs, had burned her skin with cigarettes and had cut her vagina with a knife causing a deep laceration as well as opening the abdominal cavity.
12. On 12 April 1994 the Court of Assizes (Geschworenengericht) of the Vienna Regional Court (Landesgericht) convicted the applicant of both offences of aggravated rape and sentenced him to 14 years’ imprisonment. In assessing the penalty, the court considered as mitigating circumstances the applicant’s partial confession regarding the rape of E.P. and, to some extent, that he had acted under the influence of alcohol and drugs. As aggravating circumstances, the court considered the applicant’s criminal record, the fact that he had committed two rapes and the extreme brutality which the applicant had shown when committing the offences.
13. On 27 June 1994 the applicant filed a plea of nullity (Nichtigkeitsbeschwerde) and an appeal against sentence (Berufung). In his plea of nullity the applicant complained, inter alia, that the Court of Assizes had failed to hear the requested witnesses from Poland.
14. On 18 August 1994 the Supreme Court (Oberster Gerichtshof) confirmed the Court of Assize’s judgment as regards the rape of E.P. and quashed the judgment as regards the other charge of rape and the sentence. It found that there had been sufficient information to identify the witnesses from Poland and that the Court of Assizes should have attempted to take this evidence. It remitted the case to that court.
15. On 19 September 1995 the new trial commenced before the Court of Assizes sitting with another jury and on 14 June 1996 the Court of Assizes convicted the applicant of raping A.H. and sentenced him to 14 years’ imprisonment. When fixing the sentence the court considered as mitigating circumstances the applicant’s confession regarding some of the facts concerning the charge of having raped E.P. and, to a certain extent, his intoxication. As aggravating circumstances it considered the applicant’s criminal record, that he had committed two rapes and his extreme brutality when committing the offences.
16. On 29 August 1996 the applicant filed a plea of nullity and an appeal against sentence. In his appeal against sentence the applicant submitted that the Court of Assizes had failed to give sufficient weight to the mitigating circumstances, namely his neglected education, his difficult childhood and his intoxication. The applicant did not request to attend the hearings before the Supreme Court or the Vienna Court of Appeal (Oberlandesgericht).
17. On 8 October 1996 the Supreme Court, sitting in private, rejected as inadmissible the applicant’s plea of nullity.
18. On 4 December 1996 the Vienna Court of Appeal fixed the hearing date for the applicant’s appeal against the sentence for 18 December 1996. The applicant received a notification which stated that he, being detained, could only appear through his counsel and would not be brought to the court as the conditions of Section 296 § 3 [Section 294 § 5] of the Code of Criminal Procedure (Strafprozeßordnung) were not fulfilled.
19. On 18 December 1996 the Vienna Court of Appeal, after having held a hearing in the absence of the applicant but in the presence of his defence counsel, dismissed the appeal against the sentence. As regards the weighing of mitigating and aggravating circumstances by the Court of Assizes, the Court of Appeal found that the applicant’s partial confession was merely a contribution to the establishment of the truth (Beitrag zur Wahrheitsfindung) and did not qualify as a mitigating circumstance. Further, there were additional aggravating circumstances such as the particular cruelty which the applicant had used when committing the offences, as well as their concurrent nature (Zusammentreffen strafbarer Handlungen). As regards the circumstances invoked by the applicant, the
Court of Appeal found that they could not be taken into consideration as mitigating circumstances. A neglected education and difficult childhood could not be considered as the applicant was now an adult and it could not explain his excessive use of brutality. Also no weight could be given to his intoxication because he should have known about the effects of alcohol on his person, and the experts had stated that it had no bearing on him committing the offences. Furthermore, the applicant’s offences were not a consequence of a mental defect but of frustration and increased aggression and he had not shown any consciousness of his guilt. Thus, there was no reason to reduce the sentence.
20. A first-instance judgment of an assize court may be challenged by a plea of nullity to the Supreme Court on the specific grounds enumerated in section 345 § 1 of the Code of Criminal Procedure The sentence as such may be challenged by way of an appeal against sentence to the Court of Appeal. It may concern both points of law (in particular whether mitigating or aggravating circumstances have been correctly taken into account) and factors relating to the assessment of the sentence. Where the substance of an appeal is examined, a public hearing must normally be held. Unless an appeal against sentence is filed together with a plea of nullity and the Supreme Court decides on both remedies, such a hearing is held before the Court of Appeal.
21. As regards the personal appearance of the accused at a public appeal hearing, section 294 § 5, second sentence, of the Code of Criminal Procedure provides:
“An accused who is detained shall always be summoned and an accused who is detained shall also be brought before the court if he has made a request to this effect in his appeal or counter-statement or otherwise if his personal presence appears necessary in the interests of justice.”
NON_VIOLATED_ARTICLES: 6
NON_VIOLATED_PARAGRAPHS: 6-3
NON_VIOLATED_BULLETPOINTS: 6-3-c