ITEMID: 001-100548
LANGUAGEISOCODE: ENG
RESPONDENT: MDA
BRANCH: CHAMBER
DATE: 2010
DOCNAME: CASE OF POPA v. MOLDOVA
IMPORTANCE: 4
CONCLUSION: Violation of Art. 3;Violation of Art. 13
JUDGES: Giovanni Bonello;Ján Šikuta;Lech Garlicki;Mihai Poalelungi;Nebojša Vučinić;Nicolas Bratza
TEXT: 4. The applicant was born in 1976 and lives in Chişinău. The facts of the case are disputed by the parties. Their respective accounts may be summarised as follows.
5. The applicant submitted that at 9 p.m. on 27 July 2004 she and her sister were stopped on the street by a police officer (“AC”) who ordered them to accompany him to a District Police Station. When they refused to comply with AC’s request, he forcibly took them to the police station and, according to the applicant, at one point he pushed her while she was on a flight of stairs at the police station. The applicant submitted that while she was at the police station she was beaten severely by three drunk men in plain clothes. In particular, she claimed that the three men pushed her from her chair, hit her head against a steam radiator, tried to strangle her and punched and kicked her in the head and body. She claimed that all these acts took place in the presence of police officers. The applicant and her sister were later driven to the Rîşcani Police Station and held in custody until she was brought before a judge the following morning. During this period she was not examined by a doctor.
6. The Government contested the applicant’s account of the events surrounding her arrest on 27 July 2004. In doing so they relied on statements provided by AC, the applicant’s brother-in-law, another police officer (“R”), and a civilian who was present at the police station when the applicant arrived. The Government submitted that on the evening of 27 July 2004 the applicant had been celebrating her birthday at her sister’s home. She got into a physical fight with her sister’s husband. It is not clear from the statements whether the applicant’s brother-in-law went to the police station to report the applicant’s behaviour or whether AC was walking past the applicant’s sister’s home when he noticed the fighting. Nevertheless, the statements of AC and the applicant’s brother-in-law both indicated that when AC arrived at the scene, the applicant was assaulting her brother-in-law and would not calm down. In particular, the applicant’s brother-in-law told the prosecutor that the applicant had pushed him to the ground and was hitting him with her fists.
7. AC confirmed in his statement to the prosecutor that when he arrived at the scene the applicant insulted him and her brother-in-law. After he cautioned her, she began to hit and kick her brother-in-law. The applicant’s brother-in-law also stated that:
“Tanea [the applicant] picked a fight with AC and was pulling his epaulettes with a view to tearing them off, called him “a rotten cop”, told him that she was living with a former prisoner and that he would eliminate him.”
8. AC therefore asked the applicant, her sister and her brother-in-law to accompany him to the station. In his statement to the prosecutor he conceded that he had to use some force to bring the applicant there. In his evidence given to the District Court he stated that he grabbed the applicant by the hand but did not use any other form of physical force. At the police station the applicant continued to be aggressive towards AC. The applicant’s brother-in law stated that:
“At the police station, Chilat Angela and the sister in law Tatiana were continuing to make noise, calling the policemen “rotten cops” and other explicit words.”
9. A civilian who happened to be at the police station when the applicant, her sister and her sister’s husband arrived, stated that:
“The people [the police officer] brought with him were inebriated, were shouting, insulting the policeman, pulling him by his clothes and threatening him with being fired from the police.”
10. None of the witnesses indicate that the applicant had any visible injuries when she arrived at the police station.
11. The Government stated that after the police officer had drawn up a report documenting the applicant’s misdemeanour, she was transported to a public drugs clinic so that her blood alcohol level could be tested. The Government submitted a report from the clinic which confirmed that the applicant was intoxicated.
12. On 28 July 2004 the Rîşcani District Court found that the applicant had been drunk and disorderly and was guilty of the administrative offences of insulting a police officer and disobeying the lawful orders of a police officer. The court fined her 18 Moldovan lei (MDL) (1.24 euros (EUR) at the time).
13. On 28 July 2004 the applicant was examined by a forensic doctor. She told the doctor that she had been beaten by three unknown men. On 2 August 2004 she was examined by a neurologist. The final medical report of 28 July 2004, as amended on 2 August 2004, stated, inter alia, that:
“[The applicant’s] head concussion, multiple contusions of the soft tissues of the head, multiple bruises of 1x1 cm up to 7x5 cm on her arms, legs, right hemiabdomen, a scratch of 2x1 cm on her back, have been inflicted by blows with a blunt object, possibly at the indicated time and lead to a short-term health disorder /over 6, but not more than 21 days/ and are qualified as light bodily injuries.”
14. On 5 August 2004 the applicant appealed against the judgment of 28 July 2004. She pleaded her innocence and denied that she had been drunk. The applicant described the circumstances of her ill-treatment and attached a copy of the medical report of 28 July 2004.
15. On 11 August 2004 the Chişinău Court of Appeal upheld her appeal, quashed the judgment of the Rîşcani District Court on the ground of procedural mistakes and ordered a re-trial by the first-instance court.
16. On 8 December 2004 the Rîşcani District Court found the applicant guilty of insulting a police officer and fined her MDL 18. She appealed.
17. By a final judgment of 29 December 2004 the Chişinău Court of Appeal dismissed her appeal.
18. In the meantime, on 3 August 2004 the applicant had lodged a complaint with the Prosecutor’s Office. In the complaint she stated that on 27 July 2004 she had been beaten by three unknown men in the presence of police officers. She attached the medical report of 28 July 2004 and described in detail the circumstances of her case, providing the names of the two police officers who had been present during her ill-treatment.
19. Following the applicant’s complaint, the prosecutor of the Rîşcani Prosecutor’s Office interviewed her brother-in-law, AC, R and the civilian who had been present at the police station when the applicant arrived. On 30 September 2004 the prosecutor informed the applicant that AC had acted in accordance with the law and that her complaint had been dismissed on 28 September 2004 on the ground that there was a lack of “constitutive elements” of an offence.
20. On 7 October 2004 the applicant appealed to the Rîşcani District Court against the decision of the Prosecutor’s Office of 28 September 2004. She stated, inter alia, that the prosecutor had omitted to examine the witnesses’ statements which had been enclosed with the case file and the medical report of 28 July 2004. The applicant also submitted that she had been beaten by AC, R and another police officer (“C”) and that her ill-treatment had been witnessed by her nephew (“N”) and two other women (“OC” and “RC”).
21. The Rîşcani District Court considered the applicant’s submissions at an oral hearing. In the course of the hearing the applicant, her sister, and AC gave oral evidence. In her evidence to the court, the applicant’s sister stated that both she and the applicant had been beaten by three unknown men in plain clothes and that the events had been witnessed by police officers and by her son, N. In a final judgment of 14 February 2005 the Rîşcani District Court dismissed the applicant’s appeal. It found that the decision of 28 September 2004 had been lawful and that there were no legal grounds for its annulment.
22. The relevant provisions of the Criminal Code read as follows:
Section 328
“An abuse of power, committed by an official, which exceeds the rights and duties provided by law and causes considerable damage to the rights of physical persons ... accompanied by acts of violence or by acts of torture and humiliation of the victim shall be punishable by imprisonment of three to ten years and by a prohibition on carrying out certain activities for a period of up to five years.”
23. The relevant provisions of the Code of Criminal Procedure read as follows:
Section 313
“(1) If a party does not agree with the result of the examination of his or her complaint by the prosecutor, he or she shall complain to the investigation judge ... .
(2) The parties have the right to lodge an appeal with the investigation judge ... against a refusal to institute criminal proceedings ... .
(3) The complaint shall be addressed to the investigation judge ... within ten days.
(4) The complaint shall be examined within ten days ... .
(5) Provided that the complaint is substantiated, the investigation judge shall issue a decision ordering the prosecutor to remedy the violations of human rights and freedoms and, if appropriate, shall annul the [prosecutor’s decision].
(6) The decision of the investigation judge is irrevocable.”
24. The relevant provisions of the Civil Code read as follows:
Section 1398
“Anyone who acts illegally and culpably in respect of another person, shall repair the pecuniary and ... the non-pecuniary damage caused by his or her actions or omissions....”
VIOLATED_ARTICLES: 13
3


ITEMID: 001-107327
LANGUAGEISOCODE: ENG
RESPONDENT: HRV
BRANCH: CHAMBER
DATE: 2011
DOCNAME: CASE OF V.D. v. CROATIA
IMPORTANCE: 4
CONCLUSION: Violation of Art. 3 (substantive aspect);Violation of Art. 3 (procedural aspect)
JUDGES: Anatoly Kovler;Elisabeth Steiner;Julia Laffranque;Khanlar Hajiyev;Mirjana Lazarova Trajkovska;Peer Lorenzen
TEXT: 4. The applicant was born in 1960 and lives in Z.
5. The applicant is suffering from schizophrenia.
6. On 31 August 2006 the Z. no. 4 Police Station lodged a criminal complaint with the Z. County State Attorney’s Office (Županijsko državno odvjetništvo u Z.) against the applicant. The relevant part of the complaint reads:
“On 11 August 2006 after a physical conflict with an unknown person at about 12.20 p.m. in front of an apartment building in Z., ... the suspect D.V. went into the lift of that building with his mother M.D. and son I.D. to go to a flat on the third floor, owned by his mother, and said to his son: ‘Everybody downstairs is shouting ‘Call the police.’ The police will come now, and it is better that I kill you rather than the police, they will kill me and then we will lie dead next to each other!’. When they entered the flat the suspect D.V. began to carry out his threat and grabbed his son I. by the neck and started to squeeze it, in order to strangle him. The suspect’s mother pushed him away and he fell against the refrigerator ... while the boy ran to another part of the flat.
After a telephone call, at 12.14 p.m. officers of the Z. no. 4 Police Station, S.P. and V.B., went to the scene ...where they waited for the ambulance ... and then entered the flat. Police officers S.P. and V.B. approached the suspect who made an attempt to assault S.P. with both hands and bit him on the left arm ... after which both officers put the suspect in an elbow lock, pushed him on to the floor and handcuffed him. However, the suspect continued to resist by trying to kick the officers, but they overcame him and he was taken by ambulance to the Hospital ‘Z.’ ... where he was placed in the closed section of the psychiatric ward.”
7. The investigation in respect of the applicant on the charge of attempted murder of his son was opened on 6 September 2006 in the Z. County Court (Županijski sud u Z.).
8. On 3 October 2006 an investigating judge of the Z. County Court heard evidence from police officer V.B. The relevant part of the written record reads:
“... on the date in question in August 2006 I joined the policemen who had already arrived at a flat at 10 Š. Street. The first information I received as a police officer was that there had been a fight in front of the building, but I do not know who was involved in it, and that the fight had continued inside the flat.
When I entered the flat there were two policemen there. I saw the accused sitting on a sofa, visibly upset. His parents were next to him. When the ambulance arrived he refused to go with them and when a doctor told him to stand up, he attempted to hit my colleague S.P. who blocked the blow, but the accused then bit him on the arm, drawing blood, and let go of him only when he was pushed on to the floor.
This was the first time I had intervened at that address. The whole incident lasted for quite a long time, because we first spent about twenty minutes talking to him.
To a question from the Deputy Z. County State Attorney I can say that, apart from those previously mentioned there was one younger person, probably the accused’s wife, and a child at the scene. His wife screamed for help and said that he had gone mad.
To a question from the defence lawyer I cannot answer whether I noticed traces of any injuries on the accused that day. He is a particularly strong person, he banged his head on the ground and the bed and I did not notice traces of any injuries on him after the intervention. Well, I have just remembered that he bled from his mouth because he banged his head all the time; he continued to act crazily even after [he had received] an injection of tranquillisers and despite being tied up. We, the police officers, were not alone with him at any time ...”
9. On the same day the investigating judge heard evidence from police officer S.P. The relevant part of the written record reads:
“... on the date in question I came for an intervention about a mentally ill person who had to be taken for hospitalisation and who lives in Š. Street no. 10 in Z.. When I arrived to the flat I found his parents, a young man and I think also some children in one room, but I did not focus my attention on that, as well as four of my colleagues from the police station.
I talked with the accused for at least twenty-five minutes during which time he stood up from a sofa, sat down, wanted to have his blood pressure checked and was dressed only in his underwear. From my previous experience I knew that I had to treat him gently. After that a doctor together with a team of the medical emergency services arrived and he had to be persuaded to go with them. Just then he stood up and when I touched him on the shoulder he pushed me and I held his right arm. He resisted me but we managed to push him on to the floor when he bit me on the left arm. The bite was through my shirt. I bled only a little because he did not bite off [any flesh]. A colleague helped me then to overcome him.
... the accused sustained a mild haematoma when we pushed him on to the floor, I believe.
To a question from the Z. County Deputy State Attorney I can say that the accused bit his tongue.
To a question from the defence lawyer I can say that when I entered the flat the accused was not injured. ...”
10. On 5 October 2006 the investigating judge heard evidence from T.V., the applicant’s common-law wife. The relevant part of the written record reads;
“... His father brought a hospitalisation order from a doctor, which I put into my backpack and when we were standing in front of the apartment building where V.’s parents live, he told me that he did not wish to go to a hospital and ... managed to take the backpack from me. We were both pulling at the backpack and the next moment, probably thinking that he wanted to hit me, some people from a nearby bar started to insult him telling him that he was a fool and to let me go and then a scuffle ensued between those people and V. V.’s shirt was torn. ...
After that the grandmother went into the flat with V. and the boy; I do not know where V.’s father was at the time. I stayed out of the building ... The police arrived after five to ten minutes. During that time I waited outside and I called an ambulance. When the police arrived I went into the building with them and was approaching the door of the flat when V.’s father came out carrying the boy ... and telling me that the grandmother feared that he was going to strangle him. ...
After that I went to another room and played music on a computer to distract the child’s attention from the noise. I did not see what happened then. I waited for the arrival of the ambulance and the police and I heard awful screaming from V. ...”
11. On the same day the investigating judge heard evidence from the applicant’s father, Ve.D. The relevant part of the written record reads:
“... I approached the window and I saw V. and his wife, both pulling at a backpack. I decided to go downstairs and when I came out I saw a group of people from a nearby bar, probably thinking that V. was trying to take her backpack and not knowing that they were spouses, intervening in their conflict. V. made a move with his hand towards them and they towards him, and they pushed each other. V.’s shirt was torn. I intervened and separated them.
... When I came back to the flat I found V. there with my wife and the boy. ...
V. sat on a sofa in the small room and the boy was there. The police arrived after two to three minutes and I did not see V. do anything to the child.
To a question from the judge I can say that the grandmother did not tell me that V. had done anything to the child. I left the room where V. was for a short while so it is possible that I did not see everything that happened. That means that I was not in the room when the policemen tied V. up. ... When the policemen arrived, V. told them that they were his friends but I did not see him bite one of them. There were four policemen and later on I saw that one of them had been bitten but I did not see at what exact moment it happened. It is difficult for me to say how long they stayed in the flat. While they were in the flat, a doctor arrived with an ambulance. She gave V. an injection of tranquillisers.
During the intervention V. bit his tongue. I think that was because of the pain he suffered from being kicked by the police officers when they intervened. When the police arrived V. was on the sofa and after that he was on the floor, which is where I saw him when I went into the room. The floor was covered in blood.”
12. On the same day the investigating judge heard evidence from the applicant’s mother, M.D. The relevant part of the written record reads:
“... I saw through the window the two of them [the applicant and his wife] on the grass in front of the building, pulling at her backpack ... Some customers in a nearby bar were watching the incident. They probably did not know that they were spouses but thought that V. was attacking a passer-by and they approached them to help T. V. and these people pushed each other and my husband separated them. After that I went out with my grandson and approached my son who took me by one hand and my grandson by another. We went back to the building and went into the lift, V. was telling us to hurry up because the police would come and strangle us. He took the boy by the back of the neck with his hand, hurrying him to enter, in fear of the police. At that moment we were in the hall. I was shaking with fear that V. would do something to one of us. We stayed in the flat like that for a short while. V. sat on a sofa and the boy went into our bedroom to watch television. Immediately after that someone rang the bell and I saw the policemen. Four policemen arrived and one of them had a large wooden rod.
When the policemen entered my son told them that they were his friends. Whether he swore at them after that I do not know but I saw that all of them jumped at him. In a moment he was handcuffed and his legs were tied. After that one of the policemen ordered me to leave the room and I went to the hall where my husband was, so I did not see my son bite one of the policemen. After that I heard terrible screams from my son. I could not listen to that so I went into the room and saw my son lying on the wooden floor covered in blood. I saw that he was injured because he was bleeding from the mouth. His left eye was injured. That is what I saw and I suppose that the policemen were kicking V. because he had injuries to his legs, but I did not see them do it.”
13. On 27 November 2006 charges of attempted murder were brought in the Z. County Court against the applicant. At a hearing held on 28 March 2007 a forensic expert gave her evidence. The relevant part of the written record reads:
“The medical documentation ... shows that the defendant V.D. sustained injuries in the form of bruises to his head on 11 August 2006, laceration of the tongue and haemorrhage of both eyes. I also saw photographs of V.D. taken at the R. Hospital ... The medical documentation and the photographs show that V.D. had sustained haemorrhaging in both eyes, more pronounced in the left eye. Such an injury is typically caused by blows with a hard object and force of low to medium intensity, and in this area it is usually caused by punches (blows with a fist). ... These injuries were caused with at least two separate uses of force. The tongue laceration was caused by him biting it himself and amounts to a bodily injury. It is not possible to establish why he bit his tongue. The medical documentation also describes lacerations of his chest and upper right leg. ... Such injuries are typically caused by dragging an object sideways along the surface of the skin or by blows from the side, but the conclusion that they were caused by being rubbed against an obstacle or surface cannot be ruled out.
To a question from defence counsel I can say that I cannot rule out kicking as the cause of the haemorrhage of both eyes I cannot rule out the injuries being caused in this way to V.D. while he was lying on the floor.
Some of the injuries, such as the lacerations, could have been caused by falling down and hitting the wooden floor, but I am absolutely certain that the injuries to the eye area could not have been caused in this way.
...”
14. On the same day the applicant was found guilty of the attempted murder of his son and attempting to prevent an official from carrying out his duties. Because he was mentally ill, compulsory admission to a psychiatric institution for a period of six months was ordered.
15. On 5 January 2007 the applicant’s parents lodged a criminal complaint with the Z. Municipal State Attorney’s Office (Općinsko državno odvjetništvo u Z.) against two police officers, S.P. and V.B., alleging that on 11 August 2006 they had caused grave bodily injuries to the applicant. The complaint stated that on that day the applicant came to visit his parents, with T.V. and their son I.D. After the applicant had had a minor argument with T.V. and their son in front of the apartment building where his parents lived, someone had called the police.
16. Four police officers had arrived at the applicant’s mother’s flat and handcuffed the applicant and then tied his legs, all in the presence of the applicant’s parents. The mother had been in the same room, while the father had been standing in the hallway. The police officers had then ordered the mother to leave the room, closed the door and beaten the applicant. The mother had heard the applicant screaming, had gone into the room and seen the applicant lying on the floor bleeding from his mouth and eye area. He had been kicked in the head and his eyes were bulging.
17. An ambulance had arrived at the scene and transported the applicant to a hospital.
18. The medical documentation of 11 August 2006, drawn up at the Surgical Clinic of the Medical University in Z., shows that the applicant had a head contusion, tongue laceration, haematoma around both eyes, haemorrhage of both eyes and lesions on the neck and right shoulder.
19. The witness statements given before the investigating judge in the criminal proceedings against the applicant were included in the case file (see above, §§ 8-12).
20. On 24 April 2007 the Z. Municipal State Attorney’s Office dismissed the criminal complaint on the ground that the injuries the applicant had sustained were self-inflicted; he had bitten his tongue and banged his head on the floor. The decision firstly reiterated the facts from the police report of 31 August 2006 (see above, paragraph 7). The relevant part of the decision reads:
“A report drawn up by the General Criminal Department of the Criminal Police Division of the Z. Police Department, shows that police officers S.P and V.B. were sent to the scene ... in order to assist a medical team in securing the compulsory hospitalisation of V. When they approached him he assaulted S.P. and bit him on the left arm, after which S.P. and V.B. pushed him to the floor and tied him up. However, he continued pushing with his legs, trying to kick the officers. While he was being pushed to the floor and tied up, because of his confused state V.D. repeatedly banged his head on the floor and bit his tongue, which caused multiple lacerations of his tongue and haematoma of the face and head. ...
During the preliminary inquiry T.V, M.D. and V.D. were interviewed and the medical documentation concerning I.D., S.P. and V.D. was consulted.
T.V., the common-law wife of V.D. ... said that ... during the night of 10 and 11 August 2006 he had become aggressive, would not let her and their son I. sleep, had pulled out telephone wires, insulted her, had mood swings, and banged the door. The next day his behaviour had continued to be bizarre and he had been angry for no reason and had had hallucinations, so she had tried to talk to him to calm him down but had not succeeded. When they were standing in front of the apartment building where his mother lived, V. had grabbed her backpack and pulled at it, scratching her face, which was seen by some passers-by, who tried to stop him. He had started a fight with them, throwing punches, and had taken his clothes off and run down the street. At one moment she had seen him throwing their son’s things out of the window and heard his mother shouting ‘Help!’ from the window and calling the police. When the police had arrived she had gone into the flat with them and had seen V.’s mother holding the boy in her arms; he was naked and bleeding from the leg. She had not seen V., but had heard a police officer calling other police officers for help because V., whose hands and legs had been tied and who had been given three injections, had not calmed down.
M.D., the mother of V.D., said that ... after V. and T. had been pushing each other in front of the building, she, V. and the boy . ... had gone into the flat, where V. had grabbed his son by the neck and started strangling him. She had pushed him hard, and he had fallen against the refrigerator, which made him let go of the boy. After the police had arrived she had heard her son screaming and had seen him bite a policeman on the shoulder, after which they overcame him, handcuffed him and took him to hospital.
The father of V.D., Ve.D., was not present when the events described above took place, but said that after the police officers had arrived at their flat they had started using force against his son, handcuffed him and soon after that the ambulance had also arrived. V. had resisted them and they could not have given him an injection and only after the police officers had tied him up did the doctor manage to give him two injections of tranquillisers. ...
The medical documentation in the case file shows that on the occasion in question I.D. had sustained bodily injuries caused by attempted strangulation.
The same medical documentation shows that S.P. was injured by a bite from V.D.
It also shows that V.D. sustained bodily injuries during the incident and that he is suffering from mental illness.
... a judgment by the Z. County Court finding that V.D. had ... committed the acts amounting to the criminal offence of attempted murder of a child and an attempt to prevent an official from carrying out his duties ... was also consulted.
Assessment of the above shows that on 11 August 2006 V.D., owing to permanent mental illness, schizoid-affective psychosis of mixed type, committed the criminal offence of attempted aggravated murder in respect of his minor child I.D., an act he was prevented from carrying out by the prompt reaction of the Z. Police Department officers. In view of his grave mental illness, the undisputed fact that he was resisting legal arrest by pushing with his legs and arms, trying to hit the police officers, biting his tongue and banging his head on the floor, I consider that the injuries he had sustained were self inflicted, or inflicted by lawful use of force.
In view of the above, it has been established that the use of force by the police officers was justified and lawful in accordance with Article 32 of the Criminal Code and that they did not commit the alleged offence or any other criminal offence liable to State prosecution.”
21. On 21 May 2007 the applicants’ parents lodged an indictment in the Z. Municipal Court against two of the police officers, S.P. and V.B., alleging that on 11 August 2006 they had caused grave bodily injuries to the applicant. They alleged that four police officers had come to their flat following a call by an unknown person. When they arrived at the flat the applicant was sitting on a sofa. When one of the police officers started speaking to him the applicant stood up. The police officers immediately started beating him. All four police officers very quickly pushed the applicant on to the sofa, cuffed his hands behind his back and then tied his legs together. Both parents were present. However, once the applicant had been tied up, the police officers ordered the parents to leave the room and closed the door. The parents heard the applicant screaming and crying and after some time the mother opened the door of the room and saw the applicant lying on the floor, bleeding from his mouth and eyes, eyes bulging and with blood all over him.
22. The medical examination had revealed that the applicant had bitten his tongue and had bruises to the eyes, torso, abdomen and hands. Part of his tongue was later removed.
23. The parents argued that these injuries could not have been self-inflicted, because if what the police had said was true, that the applicant had banged his head on the floor, then he would have had injuries primarily to his nose and forehead and not his eyes. Furthermore, banging his head against the floor could not explain the numerous haematomas on his torso, hands and abdomen.
24. The injuries had caused the applicant permanent health damage; the sight in his left eye was reduced, he could not speak properly and had trouble swallowing food. His hands were partly numb.
25. The parents also submitted their list of evidence, including medical documentation and photographs of the applicant taken soon after the incident showing his injuries, and requested that witnesses be heard and also that a medical expert report be drawn up to explain how the injuries were caused.
26. On 27 July 2007 counsel for the applicant submitted a fresh indictment, which complied in form and content with the statutory requirements under the Code of Criminal Procedure. In substance, he reiterated the allegations from the previous indictment.
27. On 3 March 2008 the Z. Municipal Criminal Court (Općinski kazneni sud u Z.) ordered an investigating judge to take the following investigative actions: interview the two police officers; interview the victim; interview the applicant’s parents; obtain a forensic expert report to establish how the injuries were caused and their gravity; take other evidence if necessary.
28. A hearing scheduled for 15 July 2008 before an investigating judge of the Z. County Court (istražni sudac Županijskog suda u Z.) was adjourned until 28 July 2008 because the indicted policemen wished to be legally represented.
29. At a hearing held on 24 September 2008 V.B. stated that on 11 August 2006 he and his colleague, S.P., had intervened at the applicant’s mother’s flat. They had seen the applicant speaking incomprehensibly and then biting S.P. on the arm. In order to restrain him, the police officers used a take-down technique and positioned the applicant face down on the floor. He continued to resist and they tied a sheet around his ankles. The applicant had then banged his head against the floor and bitten his tongue. Then the ambulance had arrived.
30. S.P. remained silent.
31. On 10 March 2009 the Z. County Court dismissed the indictment submitted by the applicant and his parents as ill-founded. It held that the applicant’s injuries had been self-inflicted and that the policemen had not used unnecessary force. The relevant part of the decision reads:
“... the victim’s wife T.V. and his father V.D. gave concordant statements and confirmed that the victim had resisted arrest and that the police officers had tied him up and that he had received an injection of tranquillisers after which he had been transferred to a hospital, while his mother said that the police officers had beaten the victim more than was necessary.
...
The evidence established, and in particular the defence presented by the second suspect, do not show that there is a reasonable suspicion that the actions of the first and second defendants amounted to a criminal offence from Article 99 2 of the Criminal Code. This panel considers that the first and second suspect did not hit the victim during his arrest to the extent that they caused him grave bodily injury but their use of force was lawful and justified, and they did not put at risk or infringe his physical integrity. This panel concludes that ... the victim ... owing to his mental illness, resisted lawful arrest by pushing with his legs and arms, attempted to bite a police officer and banged his head on the floor, and thus caused himself injuries which resulted in a haematoma on his face; he also bit his tongue, which was later removed owing to necrosis of tissue...
32. On 9 April 2009 the applicant’s parents lodged an appeal.
33. On 10 June 2009 the Supreme Court (Vrhovni sud Republike Hrvatske) upheld the first-instance decision. The relevant part of the decision reads:
“... on the basis of all documents in the case file, the Supreme Court ... finds that the conclusion of the first-instance court contained in the impugned decision that the facts did not reveal a reasonable suspicion that the suspects S.P. and V.B., acting in the described manner ..., committed the criminal offence of inflicting grave bodily injury from Article 99 § 2 of the Criminal Code is correct.
The case file ... reveals that on 11 August 2006 the suspects S.P. and V.B., in their capacity as officers of Z. no. 6 Police Station, after physical conflict between the victim and unknown persons in front of the apartment building where his mother lives, were helping a medical team with the compulsory hospitalisation of the victim, after he had grabbed his minor child by the neck and started strangling him, but had been prevented by his mother, who pushed him, whereupon he fell against the refrigerator and let go of the child. During the attempt to take him to hospital, the victim assaulted S.P. and bit him on the left arm. Then the suspects, in order to break his resistance, put him in an elbow lock, pushed him on to the floor and handcuffed him. During that ... the victim, owing to his confused state caused by his mental illness, repeatedly banged his head on the floor and bit his tongue, which caused him lacerations to the his tongue and haematomas on the face and head.
...
In view of the above, the Supreme Court ... finds that the first-instance court correctly, on the basis of the case file, assessed that the available evidence did not indicate that there was a reasonable suspicion that the suspects had committed the criminal offence of inflicting grave bodily injury under Article 99 § 2 of the Criminal Code. The case file does not show that the suspects inflicted grave bodily harm on the victim and caused permanent injury to an important organ and caused permanent disfigurement, which are crucial elements of the criminal offence of inflicting grave bodily harm ... The case file shows that all the grave bodily injuries were self-inflicted by the victim ...”
34. In respect of a constitutional complaint lodged by the applicant’s parents on 16 September 2009 the Constitutional Court (Ustavni sud Republike Hrvatske) on 15 December 2009 declined to examine the case.
35. On 3 August 2007 a counsel for the applicant submitted a criminal complaint against the two other policemen, D.K. and T.S., who had also allegedly been involved in beating up the applicant.
36. On 13 August 2007 the Z. Municipal State Attorney’s Office dismissed the criminal complaint, on the grounds that the injuries the applicant had sustained were self-inflicted and that he had resisted the police intervention by biting his tongue and banging his head on the floor.
37. On 30 August 2007 the applicant filed an indictment in the Z. Municipal Court against D.K. and T.S., alleging that on 11 August 2006 they had caused him grave bodily injuries by hitting and kicking him on the head, back, torso and legs. Until 9 April 2010, when the applicant’s counsel enquired about the progress of the proceedings, no action had been taken in respect of the applicant’s indictment.
38. On 17 November 2010 a judge of the Z. Municipal Court forwarded the case file to the Z. County Court for an investigation to be carried out.
39. At a hearing held on 13 December 2010 before an investigating judge of the Z. County Court both D.K. and T.S. remained silent. The proceedings appear to be pending.
40. The relevant articles of the Croatian Constitution (Ustav Republike Hrvatske) provide as follows:
“No one shall be subjected to any form of ill-treatment ...”
41. The relevant parts of the Criminal Code (Kazneni zakon, Official Gazette no. 110/1997) provide:
“(1) Criminal proceedings in respect of criminal offences shall be instituted by the State Attorney’s Office in the interest of the Republic of Croatia and its citizens.
(2) In exceptional circumstances the law may provide for criminal proceedings in respect of certain criminal offences to be instituted on the basis of a private prosecution or for the State Attorney’s Office to institute criminal proceedings following [a private] application.”
“No criminal offence is committed when an official, on the basis of his or her authority vested in him or her by a statute applies force in accordance with the law.”
“Whoever inflicts bodily injury on another or impairs another’s health shall be sentenced to imprisonment for a term of no less than three months and not exceeding three years.”
“A public official, or another person acting at the instigation or with the explicit or tacit acquiescence of a public official, who inflicts on another person pain or grave suffering, whether physical or mental, for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, shall be sentenced to imprisonment for a term of one to eight years.”
42. The relevant part of the Code of Criminal Procedure (Official Gazette nos. 62/2003 – Zakon o kaznenom postupku) provides as follows:
“(1) Criminal proceedings shall be instituted and conducted at the request of a qualified prosecutor only. ...
(2) In respect of criminal offences subject to public prosecution the qualified prosecutor shall be the State Attorney and in respect of criminal offences to be prosecuted privately the qualified prosecutor shall be a private prosecutor.
(3) Unless otherwise provided by law, the State Attorney shall undertake a criminal prosecution where there is a reasonable suspicion that an identified person has committed a criminal offence subject to public prosecution and where there are no legal impediments to the prosecution of that person.
(4) Where the State Attorney finds that there are no grounds to institute or conduct criminal proceedings, the injured party as a subsidiary prosecutor may take his place under the conditions prescribed by this Act.”
Articles 47 to 61 regulate the rights and duties of private prosecutors and of injured parties acting as subsidiary prosecutors. The Criminal Code distinguishes between these two roles. A private prosecutor (privatni tužitelj) is an injured party who brings a private prosecution in respect of criminal offences for which such prosecution is expressly prescribed by the Criminal Code (these are offences of a lesser degree). The injured party as a subsidiary prosecutor (oštećeni kao tužitelj) takes over criminal proceedings in respect of criminal offences subject to public prosecution where the relevant prosecuting authorities, for whatever reason, have decided not to prosecute. Pursuant to Article 47, where a prosecution is brought privately the charge must be lodged with the relevant authority within three months of the date the person bringing the prosecution learns of the offence and the identity of the perpetrator.
“(1) A request to prosecute shall be lodged with the relevant State Attorney’s Office and a private prosecution with the appropriate court.
(2) Where the injured party has lodged a criminal complaint ... he or she shall be considered to have thereby lodged a request to prosecute.
(3) Where the injured party has lodged a criminal complaint or a request to prosecute but the [competent authorities] establish that the criminal offence in question should be prosecuted on the basis of a private prosecution, the criminal complaint or the request to prosecute shall be treated as a timely private prosecution if it has been submitted within the time-limit prescribed for [bringing] a private prosecution...”
Pursuant to Article 55(1), the State Attorney is under a duty to inform the injured party within eight days of a decision not to prosecute and of that party’s right to take over the proceedings, as well as to instruct that party on the steps to be taken.
“(1) A criminal complaint shall be lodged with the relevant State Attorney in writing or orally.
...”
VIOLATED_ARTICLES: 3


ITEMID: 001-90194
LANGUAGEISOCODE: ENG
RESPONDENT: DNK
BRANCH: CHAMBER
DATE: 2008
DOCNAME: CASE OF HASSLUND v. DENMARK
IMPORTANCE: 4
CONCLUSION: Violation of Article 6 - Right to a fair trial
JUDGES: Karel Jungwiert;Mirjana Lazarova Trajkovska;Peer Lorenzen;Rait Maruste;Renate Jaeger;Volodymyr Butkevych;Zdravka Kalaydjieva
TEXT: 4. The applicant was born in 1973 and lives in Les Salles Sur Verdon, France.
5. At the beginning of the 1990s a new concept called “tax asset stripping cases” (selskabstømmersager) came into existence in Denmark. It covered a criminal activity by which the persons involved committed aggravated debtor fraud by buying up and selling numerous inactive, solvent private limited companies within a short period and, for the sake of their own profit, “stripping” the companies of assets, including deposits earmarked for payment of corporation tax. The persons involved were usually intricately interconnected and collaborated in their economic criminal activities, which concerned very large amounts of money. According to surveys made by the customs and tax authorities, approximately one thousand six hundred companies with a total tax debt exceeding two billion Danish kroner (DKK) were stripped in the period from the late 1980s until 1994. Following a number of legislative amendments, the trade in inactive, solvent companies largely ceased in the summer of 1993.
6. In 1994, the applicant learnt via a local newspaper that he was the subject of an investigation, as was a private limited stockbrokers company, of which he was part owner.
7. By letter of 9 June 1994 he informed the police that he was available for an interview, if required. By letter of 14 June 1994 the police confirmed that they were in the process of investigation and informed the applicant that they would talk to him at a later stage.
8. From November 1994 to September 1995, six discovery orders were issued against two banks, four search warrants were issued and numerous interviews were held.
9. On 19 September 1995 the applicant was arrested and charged, inter alia, with aggravated debtor fraud. On the same day he was detained in solitary confinement, which was prolonged at regular intervals until he was released on 22 December 1995.
10. On the latter date, an oral hearing took place before the Copenhagen City Court (Københavns Byret - hereafter “the City Court”), during which the prosecution stated that the investigation was concluded and that the indictment could be expected at the beginning of 1996.
11. From January 1996 to June 1998 various investigative steps were taken, notably relating to five co-accused in the case, for example searches in Denmark, Switzerland and Sweden, numerous interviews in Denmark and abroad, international letters of request, a request to Interpol, fifteen discovery orders and an order prohibiting the disclosure of the applicant’s name. Moreover, on 19 March 1997 a request for an accountant’s report was made and material for that purpose was obtained, including statements of account, cheque vouchers and so on.
12. On 25 June 1998, the indictment was submitted to the City Court according to which the applicant (and five co-accused: A, B, N, M and R) were charged of “tax asset stripping” committed jointly. The applicant was charged with fifteen counts out of a total of fifty-nine committed between March 1992 and May 1993. His responsibility related to an amount of DKK 9,890,000 (approximately 1,300,000 euros (EUR)) out of the total amount of tax evaded in the case which came to approximately EUR 19,000,000.
13. Between 14 August 1998 and 10 March 1999, fifteen pre-trial hearings were held and the draft of the accountant’s reports was submitted. On the former date, the case was set down for trial on 15 March 1999.
14. Between 15 March 1999 and 31 January 2001, a total of 119 hearings were held. The applicant, the five co-accused and more than seventy witnesses were heard, including state-registered public accountants. Statements of accounts and a considerable amount of other documentary evidence were also produced. The court records comprised 1,330 pages. The closing speeches were held over ten days in November 2000 and January 2001.
15. By a judgment of 6 April 2001, which ran to 220 pages, the City Court convicted the applicant in accordance with the indictment, but on one count he was acquitted. The co-accused were also convicted. The applicant was sentenced to two years’ imprisonment. In addition, an amount of DKK 2,200,000 was seized, and he was deprived for an indefinite period of his right to establish a private limited company or a company or an association requiring public approval, or to become a manager and/or member of a director’s board of such companies.
16. The City Court dismissed the applicant’s claim that the length of the proceedings had been at variance with Article 6 of the Convention, stating the following:
“The City Court finds no reason to criticise the prosecution’s decision to join the criminal proceedings against the [applicant and the five coaccused]. Accordingly, and having regard to the mutual connection between the cases and their character, the City Court finds no violation of Article 6 of the Convention, although there were longer periods of inactivity during one part of the case, while investigation was going on in another part of the case. In this connection [the City Court] notes that the complexity of the acts carried out by [the applicant and the five co-accused] partly when buying and “stripping” the companies for assets, partly when writing off projects abroad, necessitated an investigation of an extraordinary scope. In the City Court’s opinion there were no longer periods, whether before the police, the prosecution or the City Court, during which no part of the case proceeded. It must be emphasised that due to the nature and scope of the charges, the cases against [M] and [the co-accused B and R] could not proceed before the cases against [the applicant, N and A] [had been heard]. [Finally], in view of the character and complexity of the case, [the City Court] considers that the total length of the proceedings did not in itself constitute a breach of the said provision of the Convention.”
17. On 15 May 2001 the applicant and the five co-accused appealed against the judgment to the High Court of Eastern Denmark (Østre Landsret - “the High Court”).
18. After that date, twelve preparatory hearings were held, including one on 13 September 2001 during which the trial was scheduled with numerous fixed dates to commence on 24 September 2002. Counsel for the applicant and the co-defendants jointly replied that they only had very limited possibilities to appear during the autumn of 2002.
19. Thus, although the trial commenced on 24 September 2002, most of the hearings took place in 2003 and 2004. A total of about 90 hearings were held in the case. In February and March 2004 the appeal hearings had to be postponed because the applicant fell ill. For the same reason the High Court changed the order of some of the hearings. The Court records comprised 861 pages. The closing speeches were held over ten days in April, May, and June 2004.
20. On 28 September 2004 the High Court upheld the City Court’s judgment. As regards the length of the proceedings, it stated:
“In the assessment of whether the proceedings have been concluded within a reasonable time, the starting point ... concerning the [applicant] was on 19 September 1995, when he was charged ...
[The High Court] upholds the City Court’s judgment and its reasoning with regard to the question of whether Article 6 of the Convention has been violated ...
The appeal proceedings were scheduled and carried out without any unreasonable delay. On 13 September 2001 the trial was scheduled to take place on fixed dates as from 12 August 2002. A number of hearing dates in the autumn 2002 and the beginning of 2003 had to be cancelled because some counsel were occupied [with other cases], for which reason the [present] case was delayed. To avoid any further delay caused by impossibilities to appear, the trial, which commenced on 24 September 2002, proceeded in a proper, but not completely suitable order.”
21. In the period from 7 to 12 October 2004, the applicant and the codefendants requested that the Leave to Appeal Board (Procesbevillingsnævnet) grant them leave to appeal to the Supreme Court (Højesteret). Three of the defendants stated in their petitions that they would submit supplementary comments, which were received on 17 December 2004. In January 2005 the cases were sent to the prosecution, which gave its opinion on 29 March 2005. The applicant and the codefendants gave their comments in reply and at a meeting on 5 August 2005 the Leave to Appeal Board decided to refuse the requests. Letters of refusal were not sent out, however, as on 9 August 2005 counsel for one of the co-defendants stated that he wanted to submit supplementary comments in the light of a recent judgment in a similar case.
22. Thereafter, due to an error, nothing happened in the case until 2 May 2006, when the police telephoned the Leave to Appeal Board and drew attention to the case. Subsequently, on his request, counsel for the relevant co-defendant who had wanted to submit supplementary comments did so on 2 and 13 June 2006. The applicant and the co-defendant were informed on 21 June 2006 that their requests for leave to appeal to the Supreme Court had been refused.
VIOLATED_ARTICLES: 6


ITEMID: 001-80897
LANGUAGEISOCODE: ENG
RESPONDENT: FRA
BRANCH: CHAMBER
DATE: 2007
DOCNAME: CASE OF PARTI NATIONALISTE BASQUE - ORGANISATION REGIONALE D'IPARRALDE v. FRANCE
IMPORTANCE: 1
CONCLUSION: No violation of Art. 11 or 11+10;Not necessary to examine P1-3
JUDGES: Anatoly Kovler;Christos Rozakis;Elisabeth Steiner;Françoise Tulkens;Jean-Paul Costa;Loukis Loucaides
TEXT: 4. The applicant party is established as an association registered on the basis of the Associations Act of 1 July 1901. Its name in Basque is Euzko Alderdi Jeltzalea – Iparraldeko Erakundea (Basque Nationalist Party – Iparralde Regional Organisation), and its registered office is in Bayonne (France). “Iparralde” is the Basque designation for part of south-western France.
Its constitution of 19 August 1996 states that it is “formed as a regional branch of the EAJ-PNB in the provinces of Laburdi (Labourd), Benafarroa (Lower Navarre) and Zuberoa (Soule)” and adopts “the national ideology of the EAJ-PNB” and “the traditional principles and modus operandi of the EAJ-PNB to the extent that they are compatible with the present Constitution”. The EAJ-PNV (Euzko Alderdi Jeltzalea – Partido Nacionalista Vasco; the French abbreviation is EAJ-PNB) is a political party established under Spanish law whose aim is to defend and promote Basque nationalism.
5. The applicant party states that its activities are the same as those of any political party: it devises political programmes, puts forward candidates for elections and takes part in election campaigns.
6. In order to be able to receive funds, in particular financial contributions from the EAJ-PNV, the applicant party formed a funding association in accordance with section 11 of the Political Life (Financial Transparency) Act of 11 March 1988. On 16 September 1998 it applied to the National Commission on Election Campaign Accounts and Political Funding (Commission nationale des comptes de campagnes et des financements politiques – “the CCFP”) under section 11-1 of the same Act for authorisation of the funding association.
On 22 January 1999 the CCFP rejected the application, giving the following reasons in its decision:
“...
[The CCFP] has been asked to authorise the funding association for the Parti nationaliste basque as that political organisation’s funding association within the meaning of section 11 of the Act of 11 March 1988 as amended.
It was noted in the Commission’s opinion published in the Official Gazette of 18 November 1998 ... and was acknowledged by the [applicant] party’s chairman in his letter of 20 January 1999 that the party receives funds from the Spanish Basque Nationalist Party.
Section 11-4 of Law no. 88-227 of 11 March 1988, as amended by section 16-1 of Law no. 95-65 of 19 January 1995, prohibits the funding of a political party by any foreign legal entity [personne morale].
The Parti nationaliste basque receives financial support from the Spanish Basque Nationalist Party, whose official recognition under Spanish law does not in any way remove its status as a foreign legal entity.
Accordingly, this unlawful source of funding, which accounts for most of the resources of the Parti nationaliste basque, precludes the party from having a funding association authorised in accordance with the law.
...”
7. On 22 June 1999 the applicant party applied to the CCFP to reconsider its decision. The application was refused on 2 July 1999 in a decision worded as follows:
“...
As to the [alleged] absence of a ban on the financing of a French political party by a foreign political party:
Having compared the provisions of Article L. 52-8 of the Elections Code, applicable to election campaigns, and section 16-1 of the Act of 19 January 1995, the applicant contends that section 16-1 ... simply states that only a political party can fund another political party and that, contrary to the position regarding election campaigns, no provision of any statute or regulations expressly prohibits the funding of a political party by another political party established under the law of a foreign country.
This argument disregards the fifth subsection of section 11-4 of the Act of 11 March 1988, as amended by the Acts of 15 January 1990 and 19 January 1995, which provides: ‘No funding association or financial agent may receive direct or indirect contributions or material assistance from a foreign State or a foreign legal entity.’
Pursuant to section 11 of the Act of 11 March 1988, the intervention of a funding association or financial agent is compulsory for the receipt of funds.
It thus follows from these two provisions, read together, that a party cannot receive funds from a political party that is a foreign legal entity.
As to the [alleged] infringement of the Community principle of the free movement of capital and [alleged] incompatibility with developments in national electoral law:
These two principles conflict with express provisions of French law.
Firstly, the free movement of capital does not prevent local law from regulating certain aspects of this principle.
Secondly, the transnational representativeness of parties does not necessarily presuppose financial support from abroad and, contrary to what the applicant argues, the prohibition of such support does not in any way impair the full exercise of the right to vote and to stand for election. ...”
8. On 3 September 1999 the applicant party applied for judicial review of that decision to the Conseil d’Etat, which dismissed the application on 8 December 2000 in a judgment worded as follows:
“...
Section 11 of the Political Life (Financial Transparency) Act (Law no. 88-227 of 11 March 1988), in the wording resulting from Law no. 90-55 of 15 January 1990, provides that political parties and their territorial and specialist organisations ‘collect funds through the intermediary [of an agent] duly designated by them, which may be either a funding association or an individual’. Section 11-1, inserted into the Act of 11 March 1988 by the Act of 15 January 1990, provides that ‘authorisation to act as a political party’s funding association shall be given by the National Commission on Election Campaign Accounts and Political Funding’. It follows from the first subsection of section 11-6, inserted into the Act of 11 March 1988 by the Act of 15 January 1990, that the granting of authorisation is subject to the funding association’s compliance with the requirements of sections 11-1 and 11-4 of the Act. Among the requirements concerned are those set forth in the penultimate subsection of section 11-4, which provides: ‘No funding association or financial agent of a political party may receive direct or indirect contributions or material assistance from a foreign State or a foreign legal entity.’
...
Substantive legality
The applicant group argues that the Commission erred in its application of section 11-4 of the Act of 11 March 1988 and that, should the Commission’s interpretation be held to prevail, the statutory provisions cited in support of its decision should be struck down as being contrary to the Constitution and incompatible with France’s international obligations.
As to the alleged erroneous application of section 11-4 of the Act of 11 March 1988:
... the penultimate subsection of section 11-4 of the Act of 11 March 1988 prohibits funding associations from receiving financial contributions ‘from a foreign State or a foreign legal entity’. Foreign political parties, which belong to the category of foreign legal entities, fall within the purview of that prohibition. The amendments resulting from the Act of 19 January 1995 to the second subsection of section 11-4 with the effect, firstly, of prohibiting a legal entity from funding a party or a political group and, secondly, of excluding ‘political parties and groups’ from this prohibition on account of the role conferred on them by Article 4 of the Constitution of 4 October 1958 had neither the purpose nor the effect of exempting foreign political parties from the prohibition on the funding of a French political party by any foreign legal entity. Consequently, the applicant group has no basis for arguing that the impugned decision was based on an erroneous application of the provisions of the penultimate subsection of section 11-4 of the Act of 11 March 1988 in conjunction with the second subsection of that section.
As to the alleged breach of Article 11 of the Declaration of the Rights of Man and of the Citizen:
It is not for the Conseil d’Etat, acting in its judicial capacity, to assess whether the law is compatible with the Constitution. Accordingly, the argument that section 11-4 of the Act of 11 March 1988 contravenes Article 11 of the Declaration of the Rights of Man and of the Citizen, to which the Preamble to the Constitution refers, fails.
As to the alleged incompatibility of the law with France’s international obligations:
As regards the Convention for the Protection of Human Rights and Fundamental Freedoms:
The applicant group relies on the Convention for the Protection of Human Rights and Fundamental Freedoms, Article 10, paragraph 1, of which secures freedom of expression to everyone ‘without interference by public authority and regardless of borders’ and Article 14 of which provides that the enjoyment of the rights and freedoms set forth in the Convention is to be secured ‘without [discrimination] on any ground such as ... national ... origin ...’.
Even accepting, as the applicant group argues, that the rules on the conditions for funding political parties have a bearing on the right to freedom of expression within the meaning of paragraph 1 of Article 10 of the Convention, which includes, as well as the freedom to hold opinions, ‘the freedom to receive and impart information and ideas’, paragraph 2 of the same Article nonetheless provides that ‘[t]he exercise of these freedoms, since it carries with it duties and responsibilities’, may be subject to such ‘restrictions ... as are prescribed by law and are necessary in a democratic society’ to the extent that they satisfy one or other of the requirements set forth in that paragraph, among which is ‘the prevention of disorder’.
Political groups and parties falling within the purview of Article 4 of the Constitution of the French Republic are intended to contribute to the exercise of suffrage in the implementation of national sovereignty. In prohibiting foreign States and foreign legal entities from funding national political parties, the legislature sought to preclude the possibility of creating a relationship of dependency which would be detrimental to the expression of national sovereignty. The aim thus pursued is linked to the ‘prevention of disorder’ within the meaning of paragraph 2 of Article 10 of the Convention. On account of both the justification of this measure and the fact that the right to freedom of expression is affected only indirectly by the rules governing the funding of political parties, and in view of the margin of appreciation which Article 10, paragraph 2, affords the national legislature, the provisions of section 11-4 of the Act of 11 March 1988 are not incompatible either with the requirements of Article 10 of the Convention, or indeed with those of Article 14.
As regards Community law:
The applicant group argues that since the resources obtained by the funding association whose authorisation has been refused stem from a political party with its registered office in a member State of the European Community, the provisions of the penultimate subsection of section 11-4 of the Act of 11 March 1988, in so far as they apply to a situation governed by Community law, are incompatible with a number of provisions of the Treaty establishing the European Community.
...
Thirdly, even supposing that the rules governing the funding of political parties may, in certain respects, have a bearing on the free movement of capital between member States as guaranteed by Article 56 of the EC Treaty, that Article, as Article 58 clearly indicates, does not affect the right of member States to ‘take measures which are justified on grounds of ... public security’. Regard being had both to the aim it pursues and to the limited impact it has on the free movement of capital, the prohibition set forth in the penultimate subsection of section 11-4 of the Act of 11 March 1988 is to be counted among the measures that may be taken by a member State under Article 58 of the Treaty. Accordingly, the submission that the Act is incompatible with Article 56 must be dismissed.
Fourthly, the provisions of section 11-4 of the Act of 11 March 1988, which, as stated above, are intended to avoid creating any relationship of dependency between political parties in the performance of their function and a foreign State or a foreign legal entity, are likewise not incompatible with the provisions of Article 191 of the Treaty, which appear in a part of the Treaty dealing with the Community institutions and more specifically the European Parliament, and which read: ‘Political parties at European level are important as a factor for integration within the Union. They contribute to forming a European awareness and to expressing the political will of the citizens of the Union.’ Accordingly, and even supposing that Article 191 creates any rights in respect of private individuals, this submission must fail. ...”
9. The first paragraph of Article 4 of the Constitution of 4 October 1958 provides:
“Political parties and groups shall contribute to the exercise of suffrage. They shall be formed and carry on their activities freely. They shall respect the principles of national sovereignty and democracy.”
Section 7 of the Political Life (Financial Transparency) Act (Law no. 88227 of 11 March 1988) reaffirms that “political parties and groups shall be formed and shall carry on their activities freely”, adding that they have legal personality and are entitled to take part in court proceedings and to acquire movable and immovable property, by way of gift or for consideration, and that they “may perform any actions consistent with their purpose, including establishing and running newspapers and training institutions in accordance with the statutory provisions in force”.
10. The financing of politics in general and political parties in particular is governed by law (main source: technical files on the Senate’s website, www.senat.fr).
11. In addition to the operating costs they have to meet in the same way as any other association, political parties incur significant expenditure during election campaigns. They have two main sources of funds: private funding, which is generally modest, and State funding, which nowadays accounts for a decisive share.
12. Like any association, political parties may charge membership fees. In practice, however, these account for only a very small proportion of their resources.
13. The Act of 11 March 1988 (as amended) gives them the further possibility of receiving donations from individuals (donations from other legal entities are in principle prohibited); however, voluntary contributions from individuals are traditionally modest.
The following provisions of the Act of 11 March 1988 (as amended) are relevant to the present case:
“Political parties and the territorial or specialist organisations they may designate for this purpose shall collect funds through the intermediary of an agent duly designated by them, which may be either a funding association or an individual.”
“Authorisation of a political party’s funding association shall be granted by the National Commission on Election Campaign Accounts and Political Funding referred to in Article L. 52-14 of the Elections Code, provided that the sole object of the association is the funding of a political party and that its articles of association comply with the provisions of the following subsections of this section. The authorisation shall be published in the Official Gazette.
The articles of an association authorised to act as a political party’s funding association must include:
(1) the delimitation of the geographical area within which the association is to carry on its activities; and
(2) an undertaking to open a single bank or post-office account into which all donations received for the funding of a political party are to be deposited.”
“The political party shall declare in writing to the prefecture of the département in which its registered office is situated the name of the individual it has chosen as its financial agent. The declaration must be accompanied by the express consent of the person designated and must specify the geographical area within which the financial agent is to perform his or her duties.
The financial agent must open a single bank or post-office account into which all donations received for the funding of the political party are to be deposited.”
“Donations made by duly identified individuals to one or more associations authorised as funding associations or to one or more financial agents of the same political party may not exceed 7,500 euros per annum.
Other legal entities, with the exception of political parties or groups, may not contribute to the funding of political parties or groups, either by making donations in any form to their funding associations or financial agents or by providing them with property, services or other direct or indirect benefits for less than the usual price.
The funding association or financial agent shall provide the donor with a receipt. A decree issued after consultation of the Conseil d’Etat shall lay down the conditions for drawing up and using such receipts. This decree shall also determine the procedure whereby receipts issued for donations by individuals of amounts lower than or equal to 3,000 euros shall not mention the name of the receiving party or group.
All donations of more than 150 euros to a funding association or financial agent of a political party must be made by cheque.
No funding association or financial agent of a political party may receive direct or indirect contributions or material assistance from a foreign State or a foreign legal entity.
Notices and documents issued by the funding association or financial agent to third parties for the purpose of soliciting donations must indicate, as appropriate, the name of the association and the date of its authorisation or the name of the agent and the date of the declaration to the prefecture, and also the political party or group for which the sums collected are intended.”
“Anyone who makes or accepts donations in breach of the provisions of the preceding section shall be liable to a fine of 3,750 euros or one year’s imprisonment or both.”
“The authorisation of any association that has failed to comply with the requirements laid down in sections 11-1 and 11-4 of this Act shall be revoked.
In that event, or where the summary statement mentioned in section 11-1 is found not to have been transmitted, the votes obtained in the geographical area of the association’s activity by the political party or group which requested its authorisation shall be discounted, for the following year, from the total referred to in the first subsection of section 9 above.”
“No political party or group which has obtained authorisation for a funding association or has appointed a financial agent may receive donations from duly identified persons other than through the intermediary of such association or agent. In the event of a breach of this requirement, the provisions of the last subsection of section 11-7 shall apply.”
14. Every year, appropriations are set aside in the Budget Bill for political parties and groups; one half is allocated according to their results in the last election to the National Assembly and the other half according to their representation in Parliament (section 8 of the Act of 11 March 1988 as amended). The first portion of these subsidies is distributed among parties and groups which put forward candidates who each obtained at least 1% of the votes cast in at least fifty constituencies in the most recent election to the National Assembly, or which put forward candidates solely in one or more overseas départements or in St Pierre and Miquelon, Mayotte, New Caledonia, French Polynesia or Wallis and Futuna who obtained at least 1% of the votes cast in all constituencies in which they stood. The second portion is distributed among parties and groups eligible for the first portion, in proportion to the number of members of parliament belonging to or attached to them (section 9 of the Act of 11 March 1988 as amended).
State subsidies are now the main source of political parties’ funding (80,264,408 euros (EUR) was distributed among more than forty parties or groups in 2002).
In addition, the State grants parties resources which may be regarded as indirect funding. Outside election campaign periods, political organisations represented by parliamentary groups in the National Assembly or the Senate are entitled to “air time”, allowing them to broadcast on public radio stations and television channels; they are also granted certain tax concessions (reduced-rate corporation tax) on some of their own income (for example, from leasing out their buildings and undeveloped land).
15. Except in the case of the election of département councillors in cantons with fewer than 9,000 inhabitants or municipal councillors in municipalities with fewer than 9,000 inhabitants, all candidates intending to receive donations for the organisation of their campaigns are required to do so through a financial agent, who is the sole person entitled to collect funds to cover campaign costs and the payment of expenses (except for those borne by a political party or group). Donations from individuals are capped at EUR 4,600 per candidate per campaign. Contributions from other legal entities, with the exception of political parties and groups, and from foreign States or foreign legal entities are prohibited (Articles L. 52-4 and L. 528 of the Elections Code). Election expenditure is subject to a ceiling according to the number of inhabitants in the constituency concerned (Article L. 52-11 of the Elections Code). The financial agent must keep campaign accounts recording all receipts and expenditure relating to the election campaign. The accounts must be certified by an accountant and submitted to the scrutiny of the National Commission on Election Campaign Accounts and Political Funding, which approves or rejects them. If the accounts are approved, the State reimburses candidates who obtain at least 5% of the votes cast in the first round in the form of a lump sum of up to 50% of the maximum permitted expenditure in the constituency in question, within the limits of the amounts actually spent (see, in particular, Article L. 52-11-1 of the Elections Code).
The State bears the costs associated with “official election material”, defined as the cost of paper, printing of ballot papers, circulars, posters and official billposting fees (these costs are reimbursed on the basis of an official scale to candidates obtaining at least 5% of the votes cast).
16. At its 46th plenary meeting (9-10 March 2001), the Venice Commission adopted guidelines on the financing of political parties (document CDL-INF (2001) 8), the relevant parts of which read:
“The Venice Commission:
Being engaged in the promotion of fundamental principles of democracy, of the rule of law and the protection of human rights, and in the context of improving democratic security for all;
Noting with concern problems relating to the illicit financing of political parties recently uncovered in a number of Council of Europe member States;
Taking into account the essential role of political parties within democracy and considering that freedom of association, including that of political association, is a fundamental freedom protected by the European Convention on Human Rights and is one of the cornerstones of genuine democracy, such as that envisaged by the Statute of the Council of Europe;
Paying particular attention to State practice in the area of financing of political parties;
Recognising the need to further promote standards in this area on the basis of the values of European legal heritage;
Has adopted the following guidelines:
1. For the purpose of these guidelines, a political party is an association of persons one of the aims of which is to participate in the management of public affairs by the presentation of candidates to free and democratic elections.
2. Such political parties may seek out and receive funds by means of public or private financing.
A. Regular Financing
a. Public Financing
3. Public financing must be aimed at each party represented in Parliament.
4. In order, however, to ensure the equality of opportunities for the different political forces, public financing could also be extended to political bodies representing a significant section of the electoral body and presenting candidates for election. The level of financing could be fixed by legislator on a periodic basis, according to objective criteria.
Tax exemptions can be granted for operations strictly connected to the parties’ political activity.
5. The financing of political parties through public funds should be on condition that the accounts of political parties shall be subject to control by specific public organs (for example by a Court of Audit). States shall promote a policy of financial transparency of political parties that benefit from public financing.
b. Private Financing
6. Political parties may receive private financial donations. Donations from foreign States or enterprises must however be prohibited. This prohibition should not prevent financial donations from nationals living abroad.
Other limitations may also be envisaged. Such may consist notably of:
a. a maximum level for each contribution;
b. a prohibition of contributions from enterprises of an industrial, or commercial nature or from religious organisations;
c. prior control of contributions by members of parties who wish to stand as candidates in elections by public organs specialised in electoral matters.
7. The transparency of private financing of each party should be guaranteed. In achieving this aim, each party should make public each year the annual accounts of the previous year, which should incorporate a list of all donations other than membership fees. All donations exceeding an amount fixed by the legislator must be recorded and made public.
...”
17. On 22 May 2001 the Parliamentary Assembly of the Council of Europe adopted Recommendation 1516 (2001) on the financing of political parties, the relevant parts of which read:
“...
7. The Assembly believes that the rules on financing political parties and on electoral campaigns must be based on the following principles: a reasonable balance between public and private funding, fair criteria for the distribution of State contributions to parties, strict rules concerning private donations, a threshold on parties’ expenditures linked to election campaigns, complete transparency of accounts, the establishment of an independent audit authority and meaningful sanctions for those who violate the rules.
8. Accordingly, the Assembly considers that:
A. As regards sources of finance
i. States should encourage citizens’ participation in the activities of political parties, including their financial support to parties. It should be accepted that membership fees, traditional and non-controversial sources of finance, are not sufficient to face the ever increasing expense of political competition.
ii. Political parties should receive financial contributions from the State budget in order to prevent dependence on private donors and to guarantee equality of chances between political parties. State financial contributions should, on the one hand, be calculated in ratio to the political support which the parties enjoy, evaluated on objective criteria such as the number of votes cast or the number of parliamentary seats won, and on the other hand enable new parties to enter the political arena and to compete under fair conditions with the more well-established parties.
iii. State support should not exceed the level strictly necessary to achieve the above objectives, since excessive reliance on State funding can lead to the weakening of links between parties and their electorate.
iv. Besides their financial contributions, States may contribute indirectly to financing political parties based on law, for example by covering the costs of postage and of meeting rooms, by supporting party media, youth organisations and research institutes; and also by granting tax incentives.
v. Together with State funding, private funding is an essential source of finance for political parties. As private financing, in particular donations, creates opportunities for influence and corruption, the following rules should apply:
a. a ban on donations from State enterprises, enterprises under State control, or firms which provide goods or services to the public administration sector;
b. a ban on donations from companies domiciliated in offshore centres;
c. strict limitations on donations from legal entities;
d. a legal limit on the maximum sum of donations;
e. a ban on donations by religious institutions.
...”
18. In Recommendation Rec(2003)4 of 8 April 2003 on common rules against corruption in the funding of political parties and electoral campaigns, the Committee of Ministers of the Council of Europe recommended that the governments of member States “specifically limit, prohibit or otherwise regulate donations from foreign donors” (Article 7).
NON_VIOLATED_ARTICLES: 11


ITEMID: 001-67055
LANGUAGEISOCODE: ENG
RESPONDENT: CZE
BRANCH: ADMISSIBILITY
DATE: 2004
DOCNAME: KOŘÍNEK and OTHERS v. THE CZECH REPUBLIC
IMPORTANCE: 4
CONCLUSION: Inadmissible
TEXT: The applicants, Mr Karel Kořínek, born in 1929, Ms Jindřiška Kořínková, born in 1929, Mr Marek Kořínek, born in 1956, Mr Hanuš Kořínek, born in 1960, Mr Aleš Kořínek born in 1964, and Ms Renata Zamazalová, born in 1966, are Czech nationals, and live in Prostějov, except for Ms Renata Zamazalová who lives in Ostrov nad Ohří. They are represented before the Court by Mr V. Petru, a lawyer practising in Praha 6.
The applicant's lawyer informed the Court, by letter of 10 September 2003, that the first applicant had died on 25 February 2003. The lawyer did not specify whether legal successors wished to pursue the proceedings. However, the other applicants, members of the same family, requested an increase in any award of just satisfaction as a result of the first applicant's death. The Court interprets the latter as a request to continue the proceedings in respect of the first applicant.
:
I. The proceedings for compensation for the third applicant's persecution during the former communist regime.
On 25 April 1991 the third applicant received compensation under Act No. 58/1969 for his unlawful conviction and detention during the former communist regime.
On 6 May 1993 the Vyškov District Court (okresní soud) rejected the third applicant's civil action of June 1991 against the State, claiming damages for moral injury allegedly caused by his conviction, detention and the delayed removal of his conviction from the criminal records.
On 27 December 1993 the Brno Regional Court (krajský soud) quashed this judgment and returned it to the District Court, which on 8 June 1994 again dismissed the third applicant's action, holding that there was no causal link between the alleged moral injury and his conviction, or the delayed amendment to the criminal records.
On 19 July 1995 the Regional Court upheld this judgment.
On 9 January 1997 the Constitutional Court (Ústavní soud) dismissed the third applicant's constitutional appeal.
On 24 June 1997 the third applicant lodged application no. 37788/97 with the former European Commission of Human Rights, in which he complained under Articles 5 § 5 and 14 of the Convention about inadequate compensation for his persecution during the former communist regime. He also complained that the court proceedings were unfair. On 22 October 1998 this application was dismissed by a Committee of three members of the Commission as being manifestly ill-founded.

II. The proceedings for damages caused by a violation of the applicants' personal rights and by an unlawful court decision.
On 12 August 1992 the applicants lodged a claim with the Prostějov District Court (okresní soud) for damages caused by a violation of their personal rights and an unlawful court decision.
On 5 March 1993 the District Court referred the matter to the Brno Municipal Court (městský soud), which on 4 May 1993 separated that part of the action relating to the damage caused by a violation of personal rights, which it transferred to the Brno Regional Court (krajský soud).
On 24 November 1993 the Brno Municipal Court heard the applicants, except for the sixth applicant who was to be heard by the Karlovy Vary District Court (okresní soud).
On 4 September 1996 the applicants specified their claims for damages caused by a violation of their personal rights, which the Regional Court subsequently separated into several proceedings, in order to deal with the individual claims of each applicant.
On 17 March 1997 and 29 June 2000 the president of the Regional Court apologized for delays in the proceedings, in response to the applicants' complaints of 11 February 1997 and 4 March 2000.
On 19 December 1999 the applicants specified their action lodged with the Municipal Court. However, that court interpreted this as a withdrawal of the claims of the third, fourth, fifth and sixth applicants, and so it discontinued the proceedings in respect of these claims on 3 August 2000.
On 10 October 2000 the Municipal Court requested the first and second applicants to specify their action.
On 15 February 2001 the Municipal Court discontinued the proceedings in respect of the claims of the first and second applicants for their failure to specify the action.
In the meantime, on 29 September 2000 the Regional Court had held a hearing in respect of the claims for damages relating to a violation of the applicants' personal rights.
On 26 January 2004 it found that a part of the action, which had been transferred to it by the Municipal Court, related to an unlawful court decision and therefore separated this part of the action from other proceedings.
On 27 January 2004 it requested the applicants to specify their actions for the protection of personal rights and to provide evidence.
It seems that the above proceedings before the Regional and Municipal Courts are still pending.