ITEMID: 001-72267
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: CHAMBER
DATE: 2006
DOCNAME: CASE OF YAYAN v. TURKEY
IMPORTANCE: 4
CONCLUSION: Violation of P1-1;Just satisfaction dismissed (out of time)
JUDGES: David Thór Björgvinsson
TEXT: 4. The applicant was born in 1942 and lives in Antalya.
5. On 9 July 1997 the General Directorate of National Airports expropriated a plot of land belonging to the applicant. A committee of experts assessed the value of the plot and the relevant amount was paid to him when the expropriation took place.
6. Following the applicant’s request for increased compensation, on 20 March 1998 the Antalya Civil Court of First-instance awarded him additional compensation plus interest at the statutory rate.
7. On 16 June 1998 the Court of Cassation quashed the judgment.
8. On 20 December 1999 the Antalya Civil Court of First-instance awarded the applicant an additional compensation of 3,184,691,136 Turkish liras (TRL) plus interest at the statutory rate applicable at the date of the court’s decision running from 18 December 1997, the date on which the title deed to the land had been transferred to the General Directorate of National Airports.
9. On 4 April 2000 the Court of Cassation upheld the judgment of the Firstinstance court.
10. On 18 May 2000 the Court of Cassation rejected the parties’ request for rectification.
11. On 20 July 2000 the General Directorate of National Airports paid the amount of TRL 7,636,830,000 to the applicant.
12. After the application was communicated to the Government, the applicant was requested to submit his observations on the merits of the case and also her just satisfaction claims until 23 March 2005. However, he failed to submit them within the required time-limit. He did not request any extension of time, either.
13. By registered letter of 27 May 2005 the applicant was informed that the Court had not received his observations and just satisfaction claims and that the Court might strike a case out of its list of cases where the circumstances lead to the conclusion that the applicant did not intend to pursue the application.
14. On 8 August 2005 the applicant submitted his observations containing his just satisfaction claims.
15. The relevant domestic law and practice are set out in the Aka v. Turkey judgment of 23 September 1998 (Reports of Judgments and Decisions 1998-VI, pp. 2674-76, §§ 17-25).


ITEMID: 001-22479
LANGUAGEISOCODE: ENG
RESPONDENT: HRV
BRANCH: ADMISSIBILITY
DATE: 2002
DOCNAME: STUDIO G-3 ZAGREB v. CROATIA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Christos Rozakis
TEXT: The applicant, Studio G-3 Zagreb, is a company from Zagreb. It is represented before the Court by Mr Boris Kozjak, a lawyer practising in Virovitica.
On 7 July 1993 the applicant company was sued before the Zagreb Municipal Court. The plaintiff, O.M., sought payment for her lawyer’s fees.
On 2 November 1993 the Zagreb Municipal Court awarded the claim.
On 14 April 1994 the applicant company appealed against the judgment.
On 11 April 1995 the Zagreb County Court upheld the first instance judgment.
On 20 June 1995 the applicant company filed a request for revision on points of law before the Supreme Court.
On 9 November 2000 amendments to the Constitution were enacted that, inter alia, introduced a guarantee of fair trial.
On 26 June 2001 the Supreme Court rejected the request.
Section 26 of the Constitution, enacted on 9 November 2000 provides, inter alia, that in determination of his civil rights and obligations everyone is entitled to a fair hearing by a tribunal.
Section 28 § 1 provides that every person, who considers that any of his constitutional rights has been violated by a decision of a judicial or administrative body or any other body invested with public authority, may lodge a constitutional complaint with the Constitutional Court.


ITEMID: 001-102816
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: COMMITTEE
DATE: 2011
DOCNAME: CASE OF KARTASHEV v. RUSSIA
IMPORTANCE: 4
CONCLUSION: Violation of Art. 6-1
JUDGES: Anatoly Kovler;George Nicolaou;Sverre Erik Jebens
TEXT: 4. The applicant was born in 1955 and lives in Kostroma.
5. On 20 January 1999 the applicant lodged an action before the Sverdlovskiy District Court of Kostroma (“the District Court”) against the Kostroma Regional Military Commissariat seeking compensation for damage caused to his health.
6. The first hearing scheduled for 17 March 1999 did not take place due to the parties' failure to appear.
7. On 14 May and 3 June 1999 the applicant informed the court that he would not be available for a short period of time and requested that any scheduled hearings be postponed.
8. On 29 June 1999 the applicant amended his claims, following which the hearing was adjourned to obtain additional evidence. Upon arrival of the respondent's comments on the claim, on 16 September 1999 the hearing was again adjourned to collect evidence.
9. On 20 September 1999 the court granted the applicant's request for assistance in obtaining certain documents from his former military unit and sent an inquiry.
10. On 3 May 2000 the court postponed the hearing pending the applicant's convalescence.
11. On 20 June 2000 the applicant again amended the claims, following which the hearing was adjourned to obtain evidence from certain State bodies.
12. On 16 February 2001 the court granted the respondent's motion for adjournment of the proceedings pending the outcome of an inquiry at the Constitutional Court of Russia that concerned compliance of relevant legal provisions with the Constitution. On 23 October 2001 the Kostroma Regional Court (“the Regional Court”) dismissed the applicant's application for supervisory review of the above decision.
13. The Government submitted that the Constitutional Court had ruled on the relevant issues on 19 June 2002 and 25 March 2003.
14. The proceedings were resumed on 14 April 2005. Following the parties' failure to appear at two hearings, on 29 April 2005 the court left the claims without consideration. On 21 June 2005 this decision was quashed for lack of proper notification of the parties, and the proceedings were resumed.
15. The proceedings were stayed from 6 July to 17 November 2005 pending the outcome of another inquiry with the Constitutional Court of Russia, which was resolved on 7 October 2005.
16. After resumption of the proceedings the parties did not appear at two hearings, and on 28 December 2005 the court again left the claims without consideration.
17. In April and May 2006 the applicant requested that the above decision be quashed and amended his claims. The proceedings resumed on 19 May 2006.
18. Between 22 June and 31 August 2006 three hearings were adjourned at the initiative of the respondent and for the public prosecutor's default in appearance. The applicant in the meantime supplemented his claims and motioned for examination of the case in his absence.
19. On 14 September 2006 the District Court granted the applicant's claims in part awarding him 1,008,083 Russian roubles (RUB) in damages and RUB 14,049 in monthly payments of disability pension.
20. On 29 November 2006 the Regional Court overturned the judgment for errors of fact and ordered a new hearing. The appeal court also issued a decision in respect of the president of the District Court to reprimand him for breaches of procedural law and excessively long examination of the case. In particular, the appeal court pointed out that the applicant, or both parties, had not been duly notified of the hearings of 17 March 1999, 14 and 21 April, 17 November and 28 December 2005. It also noted the large interval between the hearings held in September 1999 and May 2000.
21. In December 2006 and February 2007 the applicant motioned for examination of the case in his absence.
22. On 25 December 2006 the court adjourned the hearing to allow the respondent to obtain certain evidence.
23. On 1 March 2007 the District Court again granted the claims in part, awarding the applicant RUB 1,475,149 in damages and RUB 19,858 as monthly payments.
24. On 4 June 2007 the Regional Court upheld the judgment on appeal after correcting an arithmetical error.
25. Federal Law № 68-ФЗ of 30 April 2010 (in force as of 4 May 2010) provides that in case of a violation of the right to trial within a reasonable time or of the right to enforcement of a final judgment, the Russian citizens are entitled to seek compensation of the non-pecuniary damage. Federal Law № 69-ФЗ adopted on the same day introduced the pertinent changes in the Russian legislation.
26. Section 6.2 of the Federal Law № 68-ФЗ provides that everyone who has a pending application before the European Court of Human Rights concerning a complaint of the nature described in the law has six months to bring the complaint to the domestic courts.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-101739
LANGUAGEISOCODE: ENG
RESPONDENT: BEL
BRANCH: GRANDCHAMBER
DATE: 2010
DOCNAME: CASE OF TAXQUET v. BELGIUM
IMPORTANCE: 1
CONCLUSION: Violation of Art 6-1;Non-pecuniary damage - award
JUDGES: András Sajó;Anatoly Kovler;Christos Rozakis;Elisabet Fura;Françoise Tulkens;Ireneu Cabral Barreto;Isabelle Berro-Lefèvre;Jean-Paul Costa;Josep Casadevall;Luis López Guerra;Mirjana Lazarova Trajkovska;Nicolas Bratza;Nona Tsotsoria;Päivi Hirvelä;Peer Lorenzen;Sverre Erik Jebens;Vladimiro Zagrebelsky;Zdravka Kalaydjieva
TEXT: 9. The applicant was born in 1957 and lives in Angleur.
10. On 17 October 2003 the applicant appeared before the Liège Assize Court, together with seven co-defendants, on charges of murdering an honorary minister (ministre d’Etat), A.C., and attempting to murder the latter’s partner, M.-H.J. According to the wording of the indictment, they were charged with the following offences, committed in Liège on 18 July 1991:
“as principals or joint principals,
either through having perpetrated the offences or having directly cooperated in their perpetration,
or through having, by any act whatsoever, lent such assistance to their perpetration that without it the offences could not have been committed,
or through having, by gifts, promises, threats, abuse of authority or power, scheming or contrivance, directly incited another to commit the offences,
or through having, by means of speeches in a public place or assembly, or by means of any written or printed matter, image or emblem displayed, distributed or sold, offered for sale or exhibited in a place where it could be seen by the public, directly incited another to commit the offences,
1. having knowingly and intentionally killed [A.C.], with the additional circumstance that the killing was premeditated, an offence classified by law as premeditated murder [assassinat];
2. having attempted, knowingly, intentionally and with premeditation, to kill [M.H.J.], the intent to commit the offence having been manifested by conduct which objectively constituted the first step towards perpetration of the offence and which was halted or failed to attain the aim pursued only as a result of circumstances outside the control of the perpetrators, an offence classified by law as attempted premeditated murder.”
11. Only one of the co-defendants filed a statement of defence. The applicant alleged that it was impossible for him to do so since he had no knowledge of the evidence against him.
12. The indictment of 12 August 2003 stated, inter alia, that in June 1996 a person described by the applicant as an anonymous witness had passed on certain information to the investigators. A record of 3 September 1996 noted the informer’s wish to remain anonymous, based on fears for his safety “in view of the importance of his information and the media outcry that has always surrounded the [A.C.] case”. The person was never interviewed by the investigating judge. He had given the investigators information obtained in confidence from a person whose identity he refused to disclose. During the trial in the Assize Court, questions were put to the investigators on the initiative of several of the defendants about the informer’s identity. The investigators stated that their informer was not one of the defendants and had not personally witnessed the alleged offences. According to the information supplied, which was set out in fifteen points, A.C.’s murder had been planned by six people, including the applicant and another leading politician. The passage incriminating the applicant stated:
“V. der B. and Taxquet were said to have been particularly insistent about the urgent need to kill [A.C.] before the ‘91 holidays as he had promised to make some significant disclosures after the summer break.”
13. On account of the numerous applications made during the trial, the Assize Court delivered thirteen interlocutory judgments:
(i) judgment of 17 October 2003 noting the absence of certain defendants and directing that they were to be tried in absentia;
(ii) judgment of 20 October 2003 on an application to have a confrontation between witnesses declared null and void;
(iii) judgment of 27 October 2003 concerning the examination of witnesses without one of the co-defendants being present;
(iv) judgment of 3 November 2003 on the examination of a witness in camera;
(v) judgment of 6 November 2003 setting aside the order for a codefendant to be tried in absentia;
(vi) judgment of 13 November 2003 refusing an application by the prosecution for a hearing to be held in camera;
(vii) judgment of 19 November 2003 on the examination of certain witnesses in camera;
(viii) judgment of 18 December 2003 on an application by a codefendant for the examination of certain witnesses;
(ix) judgment of 18 December 2003 on the use of recordings of a confrontation between witnesses;
(x) judgment of 18 December 2003 on an application by the civil parties for the examination of witnesses who had failed to appear and the reexamination of other witnesses;
(xi) judgment of 18 December 2003 on an application by a co-defendant for the examination or re-examination of the anonymous witness;
(xii) judgment of 18 December 2003 on the applicant’s submissions as to the examination of witnesses who had failed to appear and the reexamination of other witnesses;
(xiii) judgment of 18 December 2003 on an application by the applicant for the examination or re-examination of the anonymous witness.
14. In the last-mentioned judgment, concerning the application for an investigating judge to hear or rehear evidence from the person who had anonymously supplied information noted down by two non-commissioned gendarmerie officers, the Assize Court held:
“This information, obtained anonymously by members of the police force, has no probative value as such. Accordingly, in the present case it simply constituted information capable of giving fresh impetus or a new slant to the investigation and enabling lawful evidence to be gathered independently.
When examined as witnesses at the trial, [the two non-commissioned gendarmerie officers] stated that their informer was not one of the defendants and had not personally witnessed any of the acts he described; he had merely relayed information he claimed to have received in confidence from a person whose identity he refused to disclose.
They also noted that some of the information supplied by their informer, relating in particular to other politicians mentioned in the submissions by counsel for Richard Taxquet ..., could not be corroborated by any evidence, despite their inquiries.
...
In the investigators’ view, the process of drawing up an official record of information given to them by an anonymous informer did not in itself constitute any infringement of the defence rights of the persons named by the informer. That step solely involved the disclosure, with a view to its analysis and verification, of information that might be of interest to the investigation and might assist in clarifying the facts. Viewed in isolation from any objective data that might subsequently confirm it, this information did not constitute evidence of the acts allegedly carried out by the persons whose identity was mentioned by the informer.
...
Lastly ... it is not possible to speak of a re-examination, seeing that it does not appear from the case file or the oral proceedings that [the person described as an anonymous witness] gave evidence under oath to an investigating judge.
With regard to the application for an examination of that person, firstly, the court is unaware of his identity and, secondly, regardless of the considerations referred to by the judicial investigating bodies in that connection, such an examination does not appear useful for establishing the truth and would delay the proceedings needlessly without giving cause to hope for more certain results.”
15. The jury was asked to answer thirty-two questions put to it by the President of the Assize Court. Four of them concerned the applicant and were worded as follows:
“Question 25 – PRINCIPAL COUNT
Is the accused Richard Taxquet, who is present in court, guilty,
as principal or joint principal,
– either through having perpetrated the offence or having directly cooperated in its perpetration,
– or through having, by any act whatsoever, lent such assistance to its perpetration that without it the offence could not have been committed,
– or through having, by gifts, promises, threats, abuse of authority or power, scheming or contrivance, directly incited another to commit the offence,
– or through having, by means of speeches in a public place or assembly, or by means of any written or printed matter, image or emblem displayed, distributed or sold, offered for sale or exhibited in a place where it could be seen by the public, directly incited another to commit the offence,
of having knowingly and intentionally killed [A.C.] in Liège on 18 July 1991?
Question 26 – AGGRAVATING CIRCUMSTANCE
Was the intentional homicide referred to in the previous question premeditated?
Question 27 – PRINCIPAL COUNT
Is the accused Richard Taxquet, who is present in court, guilty,
as principal or joint principal,
– either through having perpetrated the offence or having directly cooperated in its perpetration,
– or through having, by any act whatsoever, lent such assistance to its perpetration that without it the offence could not have been committed,
– or through having, by gifts, promises, threats, abuse of authority or power, scheming or contrivance, directly incited another to commit the offence,
– or through having, by means of speeches in a public place or assembly, or by means of any written or printed matter, image or emblem displayed, distributed or sold, offered for sale or exhibited in a place where it could be seen by the public, directly incited another to commit the offence,
of having attempted knowingly and intentionally to kill [M.-H.J.] in Liège on 18 July 1991, the intent to commit the offence having been manifested by conduct which objectively constituted the first step towards perpetration of the offence and which was halted or failed to attain the aim pursued only as a result of circumstances outside the control of the perpetrator?
Question 28 – AGGRAVATING CIRCUMSTANCE
Was the attempted intentional homicide referred to in the previous question premeditated?”
16. The jury answered “yes” to all four questions.
17. On 7 January 2004 the Assize Court sentenced the applicant to twenty years’ imprisonment.
18. The applicant appealed on points of law against his conviction of 7 January 2004 by the Assize Court and all the interlocutory judgments given by that court.
19. In a judgment of 16 June 2004, the Court of Cassation dismissed the appeal. It held, in particular, as follows:
(i) the belated appearance of a co-defendant could not infringe the appellants’ defence rights as they had been able to challenge freely both the statements made by that defendant during the preliminary investigation and relayed at the trial by the persons to whom they had been given, and the statements made directly by the defendant before the jury;
(ii) the Assize Court had rightly ordered that two witnesses should be examined in camera, fearing that they might not be able to express themselves freely if the hearing were public, which would hinder the proper administration of justice;
(iii) in refusing, on the ground that such a step might delay the proceedings needlessly, to show the film of the confrontation between some of the defendants and certain Tunisian nationals against whom charges had been brought, the Assize Court had not breached the rights of the defence or the principle that hearings must be conducted orally, since the refusal had been based on the fact that those taking part in the confrontation, having appeared at the trial, had been directly confronted with the defendants;
(iv) in directing that the proceedings should continue on the ground that the examination of certain witnesses who had failed to appear in court (having been properly summoned) was not necessary for establishing the truth, and in holding that a further appearance by certain other witnesses “would be likely to prolong the proceedings needlessly without giving cause to hope for more certain results”, the Assize Court had not breached Article 6 of the Convention and the principle that hearings must be conducted orally;
(v) since the presumption of innocence related above all to the attitude of the judges determining a criminal charge, comments by an investigator and reports in the press, even if inaccurate, malevolent or amounting to a criminal offence, could not in themselves cause the trial to breach Article 6 §§ 1 and 2 of the Convention;
(vi) it could not be inferred from the jurors’ alleged inexperience, the speed with which they deliberated or the lack of reasons given for their verdict that they were incapable of impartial adjudication in a case that had attracted considerable press coverage;
(vii) the procedure for appointing members of the jury and the fact that they reached their verdict as to guilt without having discussed the issue with the court did not mean that the Assize Court was not an independent and impartial tribunal established by law within the meaning of Article 6 § 1 of the Convention or that the presumption of the accused’s innocence could not be lawfully rebutted in that court;
(viii) neither Article 6 nor Article 13 of the Convention guaranteed the right of appeal;
(ix) neither Article 6 §§ 1 and 3 (b) of the Convention nor Article 14 § 3 (b) of the International Covenant on Civil and Political Rights, nor Article 149 of the Constitution, even when taken in conjunction with the above-mentioned treaty provisions, placed any obligation on a jury to give reasons for its answers;
(x) the ground of appeal relating to Article 6 § 3 (b) of the Convention (inability to confer freely with his lawyer as a result of his detention the day before the start of the trial) was inadmissible as it did not appear from the evidence in the file that the applicant had alleged before the Assize Court that there had been a violation of the right to have adequate facilities for the preparation of his defence;
(xi) Articles 10 and 11 of the Constitution, Article 26 of the International Covenant on Civil and Political Rights and Article 14 of the Convention did not lay down a requirement for reasons to be given for a verdict as to guilt, or the right of appeal or the right to appear before courts made up solely of professional judges; the discretion of the lay jury, which, moreover, was circumscribed by Articles 351, 352, 364 and 364 bis of the Code of Criminal Procedure, did not give rise to an arbitrary difference in treatment for the purposes of Article 14 of the Convention between those being tried by assize courts and those being tried by other criminal courts.
20. As to the ground of appeal contending that the appellants’ conviction had been decisively or incidentally based on the statements of an anonymous informer, the Court of Cassation stated:
“In so far as they challenge the observation that the Assize Court was unaware of the identity of the person whose examination was being requested and could therefore not order it, these grounds of appeal, being directed against an obiter dictum, are immaterial.
On that account, they are inadmissible.
As to the remaining arguments, the presence in the criminal case file of a record containing information from an unidentified source does not require the trial court, as a condition for the validity or admissibility of the prosecution, to ensure that the informer is identified and examined in accordance with the procedure set forth in Articles 189 bis and 315 bis of the Code of Criminal Procedure. Those provisions leave it open to the trial court to appoint an investigating judge to that end if such a step appears useful for establishing the truth.
The judgments take the view, on the basis of a factual assessment which this court is not empowered to overrule, that the examination sought would delay the proceedings needlessly without giving cause to hope for more certain results.
The judgments also observe that the information obtained anonymously did not correspond to the evidence obtained lawfully and independently against the defendants.
It does not appear from the Assize Court’s reply to the appellants’ submissions that the trial court contested their right to rebut the evidence produced at the trial.
On that account, these grounds of appeal cannot be allowed.
As to the remaining argument, Article 6 § 3 (d) of the Convention ... is not breached by the mere fact that the trial court considered it unnecessary or impossible to order the cross-examination of the anonymous informer whose disclosures provided helpful guidance for the investigation.
On that account, these grounds of appeal have no basis in law.”
21. In the Questions à la Une programme broadcast by Radio-Télévision Belge Francophone (the State broadcaster for the French-speaking part of Belgium) in early 2006, one of the applicant’s co-defendants, S.N., stated that he had been the anonymous informer and had acted as a “middleman” on behalf of another co-defendant, D.C., whose accusations he had relayed. During the same programme, the identity of the anonymous witness was confirmed by the Minister of Justice who had been in post at the time of the events. S.N. said that he had received the sum of 3,000,000 Belgian francs (BEF) (74,368.06 euros (EUR)) from the Belgian State as a “middleman’s commission”. D.C. had allegedly received BEF 5,000,000 (EUR 123,946.76).
22. Following the 1789 French Revolution, the jury featured in the 1791 French Constitution and the 1808 Code of Criminal Procedure. At that time, Belgium was part of French territory. When it was separated from France and attached to Holland, the jury was abolished but assize courts continued to exist. When Belgium gained independence, the institution of the jury was enshrined in the Constitution of 7 February 1831, Article 98 of which provided: “The jury shall be constituted for all serious crimes and for political and press offences.” The institution was envisaged by the framers of the Constitution as the touchstone of the authenticity of any democratic demand. The jury was seen above all as a political affirmation of the freedom won by the people, the symbol of the people’s sovereignty. It was instituted by the decree of 19 July 1831; membership was initially based on function (jury capacitaire) and subsequently, from 1869, on property (jury censitaire). By virtue of a Law of 21 December 1930, a new reform made the composition of the jury more democratic and representative of all social classes, the result being the twelve-member lay jury that still exists today.
23. Article 150 of the Consolidated Constitution of 17 February 1994 provides: “The jury shall be constituted for all serious crimes and for political and press offences, except for press offences motivated by racism or xenophobia” (text as amended on 7 May 1999).
24. Furthermore, Article 149 provides: “All judgments shall contain reasons; they shall be delivered in public.”
25. Proceedings in assize courts in Belgium afford a number of safeguards, particularly as regards the defence rights of the accused.
26. Article 241 of the Code of Criminal Procedure (“the CCP”) requires the Principal Public Prosecutor to draw up an indictment indicating the nature of the offence forming the basis of the charge, and any circumstances that may cause the sentence to be increased or reduced. Pursuant to Article 313 of the CCP, the Principal Public Prosecutor must read out the indictment and the defendant or his counsel the statement of defence. Article 337 states that the questions put to the jury must derive from the indictment (which itself must be consistent with the judgment committing the accused for trial – Article 271 of the CCP) and must comply with certain formal requirements; for example, questions that are complex or concern points of law are prohibited.
27. At the close of the oral proceedings, questions are put to the jury in order to establish the factors likely to lead to the precise determination of whether or not the accused is guilty as charged. The president of the Assize Court is empowered to put questions to the jury on all the circumstances which might have an influence on the facts which served as the basis for the indictment, provided that these circumstances were discussed during the oral proceedings. The principal question concerns the constituent elements of the offence, while there must be a separate question in respect of each count. Separate questions regarding other facts, such as aggravating circumstances or the existence of any justification or mitigating factor, may also be put. The prosecution and the accused can challenge the questions and have the opportunity to ask the president to put one or more additional questions to the jury. In the event of a dispute regarding the questions, the Assize Court must decide by a reasoned judgment.
28. Article 341 provides that, after asking the questions, the president hands them to the jury; at the same time, he hands over the indictment, the reports establishing the offence and the documents in the file other than the written witness statements.
29. In accordance with Article 342, once the questions have been put to and handed to the members of the jury, they retire to deliberate in private. The foreman is either the first member of the jury drawn by lot or is appointed by the jury with his or her consent. Before the deliberations begin, the foreman reads out the following instruction, which is also displayed in large type in the most visible place in the deliberation room:
“The law does not ask jurors to account for how they reached their personal conviction; it does not lay down rules on which they are to place particular reliance as to the completeness and sufficiency of evidence; it requires them to ask themselves questions, in silence and contemplation, and to discern, in the sincerity of their conscience, what impression has been made on their rational faculties by the evidence against the defendant and the submissions of the defence. The law does not tell them: ‘You will hold every fact attested by this number of witnesses to be true’; nor does it tell them: ‘You will not regard as sufficiently established any evidence that does not derive from this report, these exhibits, this number of witnesses or this many clues’; it simply asks them this one question, which encompasses the full scope of their duties: ‘Are you inwardly convinced?’”
30. Article 343 authorises members of the jury to leave the deliberation room only when they have arrived at their verdict.
31. Lastly, Article 352 provides that if the judges are unanimously persuaded that the jurors, while complying with the procedural requirements, have made a substantive error, the court must stay the proceedings and adjourn the case until the following session for consideration by a new jury, which cannot include any of the original members. However, according to information supplied by the Government, this option has been used on only three occasions.
32. The Chamber judgment of 13 January 2009 has had repercussions on the case-law of the Belgian courts.
33. In judgment no. 2505 (P.09.0547.F) of 10 June 2009, the Court of Cassation held:
“As to the ground of appeal, raised proprio motu, alleging a violation of Article 6 § 1 of the Convention for the Protection of Human Rights and Fundamental Freedoms:
According to a judgment of 13 January 2009 of the European Court of Human Rights in [Taxquet v. Belgium, no. 926/05], the right to a fair trial guaranteed by Article 6 § 1 of the Convention implies, where the Assize Court is concerned, that the decision on a criminal charge should highlight the considerations that have persuaded the jury of the accused’s guilt or innocence and should indicate the precise reasons why each of the questions has been answered in the affirmative or the negative.
On account of the binding effect of interpretation now attaching to that judgment and the prevalence over domestic law of the international legal rule deriving from a treaty ratified by Belgium, the court is compelled to reject the application of Articles 342 and 348 of the Code of Criminal Procedure in so far as they lay down the rule, now criticised by the European Court, that the jury’s verdict does not contain reasons.
It appears from the documents to which the court may have regard, in particular the indictment, that during the preliminary investigation the appellant, who was prosecuted for murder as the principal or joint principal, provided explanations, as to the acts of which he was accused, which were rebutted by a witness whose identity was kept secret under Articles 86 bis and 86 ter of the Code of Criminal Procedure.
In submissions filed with the Assize Court at the hearing on 18 February 2009 the appellant requested that the verdict contain reasons so that, in the event of his conviction, he could understand the grounds that had persuaded the jury to find him guilty, and so that the Court of Cassation could review the lawfulness of the verdict.
With regard to the charge of murder against the appellant, the jury was asked to answer a principal question about his involvement in committing intentional homicide, an additional question on the statutory defence of provocation and two questions, in the alternative, on the offence provided for in Article 401 of the Criminal Code. The jury answered the first question in the affirmative and the second in the negative, leaving the other questions unanswered.
The judgment appealed against sentenced the appellant to eighteen years’ imprisonment for murder, on the basis of the verdict expressed solely by answers in the affirmative or the negative to the questions put in accordance with the law. The judgment states that there is no need to give any further reasons for the finding of guilt, on the ground that the precision of the questions adequately offsets the brevity of the decision.
However, the bare statement that the appellant is guilty of murder and that there are no mitigating factors does not disclose the precise reasons why the charge, which the appellant denied, was found to have been made out, and does not enable this court to review, inter alia, whether the conviction was based to a decisive extent on the deposition by an anonymous witness incriminating the accused or was supported by other corroborating evidence in accordance with Article 341, paragraph 3, of the Code of Criminal Procedure.
While conforming to Belgian law, which does not require jurors to account for how they reached their personal conviction, the decision is contrary to Article 6 of the Convention in so far as that provision may be construed as meaning that the right to a fair trial encompasses a statement of reasons for the verdict.”
34. Other judgments to similar effect have subsequently been delivered.
35. In Belgium, even before the Chamber judgment in the Taxquet case, a Bill of 25 September 2008 that sought, among other things, to allow the president of the Assize Court to be present during the jury’s deliberations in order to assist its members was considered by the Senate. The proposed version of Article 350 of the CCP stated that the Assize Court should give reasons for its decision as to guilt, but was not required to address the parties’ submissions.
36. The Assize Court Reform Act of 21 December 2009, which was published in the Moniteur belge on 11 January 2010 and came into force on 21 January 2010, has introduced a requirement for the Assize Court to state the main reasons for its verdict. The relevant provisions of the CCP now read as follows:
“Once the questions have been put and handed to the jurors, they shall retire to the deliberation room to deliberate.
The foreman is either the first member of the jury drawn by lot or is appointed by the jury with his or her consent.
Before the deliberations begin, the foreman shall read out the following instruction, which shall also be displayed in large type in the most visible place in the deliberation room: ‘The law provides that the accused may be convicted only if it is apparent from the evidence admitted that he is guilty beyond reasonable doubt of the offence with which he is charged.’”
“The members of the jury may leave the deliberation room only when they have reached their verdict.
No one may enter while they are deliberating, for any reason whatsoever, without the written authority of the president. The president may enter the room only if he is called by the foreman, in particular to answer questions of law, and is accompanied by his fellow judges, the accused and his counsel, the civil party and his counsel, the prosecution and the registrar. A reference to the incident shall be made in the record.
...”
“The court and the members of the jury shall then immediately retire to the deliberation room.
Without having to address all the submissions filed, they shall formulate the principal reasons for their decision.
The decision shall be signed by the president, the foreman of the jury and the registrar.”
37. The relevant Articles of the Criminal Code provide as follows:
“A criminal attempt is made out where the intent to commit a serious crime [crime] or other major offence [délit] has been manifested by conduct which objectively constituted the first step towards perpetration of the offence in question and which was halted or failed to attain the aim pursued only as a result of circumstances outside the control of the perpetrator.”
“The following shall be punished as perpetrators of a serious crime or other major offence:
Those who have perpetrated the offence or have directly cooperated in its perpetration;
Those who have, by any act whatsoever, lent such assistance to its perpetration that without it the offence could not have been committed;
Those who have, by gifts, promises, threats, abuse of authority or power, scheming or contrivance, directly incited another to commit the offence;
Those who have, by means of speeches in a public place or assembly, or by means of any written or printed matter, image or emblem displayed, distributed or sold, offered for sale or exhibited in a place where it can be seen by the public, directly incited another to commit the offence, without prejudice to the penalties provided for by the law against those who incite others to commit offences, even where such incitement has no effect.”
“The following shall be punished as accessories to a serious crime or other major offence:
Those who have given instructions for its commission;
Those who have procured weapons, implements or any other means used to commit the offence, knowing that they were intended for that purpose;
Those who have, save in the case provided for in paragraph 3 of Article 66, knowingly aided or abetted the principal or principals in acts preparatory to or facilitating the commission of the offence or in its completion.”
“Homicide committed with intent to kill shall be classified as murder [meurtre]. It shall be punishable (by twenty to thirty years’ imprisonment).”
“Murder committed with premeditation shall be classified as premeditated murder [assassinat]. It shall be punishable (by life imprisonment).”
38. The Law of 1 April 2007 (which was published in the Moniteur belge on 9 May 2007 and came into force on 1 December 2007) entitles convicted persons to seek the reopening of their trial following a finding by the European Court of Human Rights of a violation of the Convention.
39. Article 442 bis of the CCP provides:
“If a final judgment of the European Court of Human Rights has found that there has been a breach of the European Convention for the Protection of Human Rights and Fundamental Freedoms or the Protocols thereto (hereinafter ‘the European Convention’), an application may be made for the reopening – in respect of criminal matters alone – of the proceedings that resulted in the applicant’s conviction in the case before the European Court of Human Rights or in the conviction of another person for the same offence on the basis of the same evidence.”
40. Article 442 ter of the CCP provides:
“The following shall be entitled to apply for the reopening of the proceedings:
(1) the convicted person;
(2) if the convicted person has died, has been deprived of legal capacity or has been declared untraceable, the person’s spouse, lawful cohabitee, descendants, brothers and sisters;
(3) the Principal Public Prosecutor at the Court of Cassation, of his own motion or at the instigation of the Minister of Justice.”
41. Article 442 quinquies of the CCP provides:
“Where it appears from consideration of the application either that the impugned decision is in breach of the European Convention on the merits or that the violation found is the result of procedural errors or shortcomings of such gravity as to cast serious doubt on the outcome of the proceedings in issue, the Court of Cassation shall order the reopening of the proceedings, provided that the convicted person or the entitled persons under Article 442 ter, point (2), continue to suffer very serious adverse consequences which cannot be redressed other than by reopening the trial.”
42. Following the Court’s judgment in Da Luz Domingues Ferreira v. Belgium (no. 50049/99, 24 May 2007), the Court of Cassation, in a judgment of 9 April 2008, ordered the reopening of the proceedings and withdrew the judgment it had delivered on 6 January 1999 (Journal des tribunaux, 2008, p. 403).
43. It is clear that there are many different models of lay adjudication in the member States of the Council of Europe. There are variations reflecting cultural and historical particularities even among countries that have opted for the “traditional” trial-by-jury model, the defining feature of which is that professional judges are unable to take part in the jurors’ deliberations on the verdict.
44. The member States may be divided into three categories: those without any form of jury trial or any model of lay adjudication in criminal matters; those using a collaborative court model of lay adjudicators sitting and deliberating alongside professional judges in criminal matters; and those which have opted for the “traditional” jury model in criminal matters.
45. Among the models examined, fourteen Council of Europe member States have never had a jury system or any other form of lay adjudication in criminal matters or have abolished it: Albania, Andorra, Armenia, Azerbaijan, Bosnia and Herzegovina, Cyprus, Latvia, Lithuania, Luxembourg, Moldova, the Netherlands, Romania, San Marino and Turkey. In these States criminal courts are composed exclusively of professional judges.
46. The member States with a collaborative system are Bulgaria, Croatia, the Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Iceland, Italy, Liechtenstein, Monaco, Montenegro, Norway (in most cases), Poland, Portugal, Serbia, Slovakia, Slovenia, Sweden, “the former Yugoslav Republic of Macedonia” and Ukraine. The collaborative system, which can also be employed alongside the traditional jury model, is characterised by the fact that the professional judges and the jurors collectively determine all questions of law and fact, the issue of guilt and the sentence.
47. The ten Council of Europe member States that have opted for a traditional jury system are Austria, Belgium, Georgia, Ireland, Malta, Norway (only in serious appeal cases), the Russian Federation, Spain, Switzerland (the Canton of Geneva until 1 January 2011), and the United Kingdom (England, Wales, Scotland and Northern Ireland).
48. In its traditional form, trial by jury involves a combination of a number of jurors sitting with one or more professional judges. The number of jurors varies according to the country and the subject matter of the proceedings. The number of professional judges varies from country to country. In Ireland, Malta, Russia, Spain, Switzerland and the United Kingdom the court and jury are presided over by a single judge. In Austria, Belgium and Norway the court consists of three professional judges together with the jury. The professional judges cannot take part in the jury’s deliberations on the question of guilt, which falls within the exclusive competence of the jury.
49. In a number of countries the jurors are presented with a list of specific questions before they retire to deliberate on the facts of the case. Seven States – Austria, Belgium, Ireland, Norway, Russia, Spain and Switzerland – follow this practice.
50. In Ireland, England and Wales, at the conclusion of the evidence, the judge sums up the case to the jurors. He reminds them of the evidence they have heard. In doing so, the judge may give directions about the proper approach to take in respect of certain evidence. He also provides the jurors with information and explanations about the applicable legal rules. In that context, the judge clarifies the elements of the offence and sets out the chain of reasoning that should be followed in order to reach a verdict based on the jury’s findings of fact.
51. In Norway the judge directs the jurors on each legal issue raised and explains the rules they should follow when they retire to deliberate on the verdict. At the end of the trial, he also sums up the evidence to the jury or draws its attention to evidence of importance.
52. In Austria the jurors’ verdict is reached on the basis of a detailed questionnaire which sets out the main elements of the various charges and contains questions requiring a “yes” or “no” answer.
53. In principle, juries deliberate in private, without the presiding judge(s) being present. Indeed, the secrecy of the jury’s deliberations is a firmly established principle in many countries.
54. In Belgium a professional judge may be invited to the deliberation room to provide the jury with clarifications on a specific question, without being able to express a view or to vote on the issue of guilt. In Norway the jury may summon the presiding judge, but if the jury considers that it needs further clarifications as to the questions to be answered, the legal principles applicable or the procedure to be followed, or that the questions should be amended or new questions put, it must return to the courtroom, so that the matter can be raised in the presence of the parties.
55. In the Canton of Geneva the presiding judge attends the jury’s deliberations to provide assistance, but cannot give an opinion on the issue of guilt. A registrar is also present to make a record of the decisions taken and the reasons given.
56. The general rule appears to be that reasons are not given for verdicts reached by a traditional jury. This is the case for all the countries concerned, except Spain and Switzerland (Canton of Geneva).
57. In Spain the jury’s verdict is made up of five distinct parts. The first lists the facts held to be established, the second lists the facts held to be not established, the third contains the jury’s declaration as to whether the accused is guilty or not guilty, and the fourth provides a succinct statement of reasons for the verdict, indicating the evidence on which it is based and the reasons why particular facts have been held to be established or not. A fifth part contains a record of all the events that took place during the discussions, avoiding any identification that might infringe the secrecy of the deliberations.
58. Until 1991 the authorities of the Canton of Geneva considered that the jury satisfied the requirement of a reasoned decision by answering “yes” or “no” to the precise questions put to it. However, in a decision of 17 December 1991 the Federal Court found such replies to be insufficient and required juries in the canton to give reasons for their verdicts in future. In 1992 Articles 298 and 308 of the Geneva Code of Criminal Procedure were amended to require the jury to state reasons for its choices should it consider that this was necessary for an understanding of its verdict or its decision. Article 327 of the Code of Criminal Procedure requires the jury to state “the reasons for taking into account or disregarding the main items of evidence and the legal reasons for the jury’s verdict and the decision by the court and the jury as to the sentence or the imposition of any measure”.
59. Within the States that have opted for a traditional jury system, an appeal against the jury’s verdict is available in Georgia, Ireland, Malta, Spain, Sweden and the United Kingdom, whereas no appeal is available in Austria, Belgium, Norway, Russia and Switzerland (Canton of Geneva). In Austria, convicted persons may appeal to the Court of Appeal against the sentence only; they may also file a plea of nullity with the Supreme Court.
60. In Belgium, since the events in issue in the present case, the Law of 21 December 2009, which came into force on 21 January 2010 (see paragraph 36 above), has amended the procedure in the Assize Court, notably by requiring it to state the main reasons for the verdict reached by the jury, in order to clarify its meaning.


ITEMID: 001-69978
LANGUAGEISOCODE: ENG
RESPONDENT: POL
BRANCH: CHAMBER
DATE: 2005
DOCNAME: CASE OF CZARNECKI v. POLAND
IMPORTANCE: 4
CONCLUSION: Violation of Art. 5-3;Non-pecuniary damage - financial award
JUDGES: David Thór Björgvinsson
TEXT: 4. The applicant was born in 1965 and lives in Lublin, Poland.
5. On 3 January 1996 the applicant was arrested by the police. On 5 January 1996 the Lublin District Prosecutor charged the applicant with homicide and larceny and remanded him in custody. The prosecutor considered that the applicant's detention was necessary because there existed the danger of pressure being brought to bear on witnesses. In addition, the charges laid against the applicant carried a significant danger to society at large.
6. On 22 February 1996 the applicant applied for release but on 23 February 1996 the prosecutor dismissed it.
7. On 13 November 1996 the applicant was indicted before the Lublin Regional Court (Sąd Wojewódzki).
8. On 27 October, 8 and 10 December 1997 and 15 January and 25 February 1998 the Lublin Regional Court held hearings in the applicant's case. During those hearings the court extended the applicant's pretrial detention.
9. On 31 March 1998 the Lublin Regional Court delivered a judgment in which it convicted the applicant as charged and sentenced him to twelve years' imprisonment.
10. The applicant appealed against his conviction and on 13 August 1998 the Lublin Court of Appeal (Sąd Apelacyjny) quashed his conviction and remitted the case to the Lublin Regional Court.
11. On 15 September and 17 December 1998 the trial court held hearings. On 15 December 1998 the court again prolonged the applicant's detention relying on strong suspicion that the applicant committed the crime and on the gravity of charges.
12. On 23 March 1999 the Lublin Regional Court extended the applicant's detention. The applicant appealed against this decision but his appeal was dismissed on 14 April 1999 by the Lublin Court of Appeal. The appellate court gave the following reasons for its decision:
“Marek Czarnecki is charged with murder for which Article 148 § 1 of the Criminal Code provides a prison term exceeding 8 years. Therefore, according to Article 258 § 2 of the Code of Criminal Procedure the pre-trial detention can be justified by the heavy sentence: in those circumstances it is not necessary to give other grounds for the continued pre-trial detention such as the risk of flight or obstructing the proper course of proceedings.
Furthermore, one cannot agree with the accused's submission that the evidence collected in his case does not make it probable that he committed the crime. The Court of Appeal quashed his conviction because there were errors in the proceedings before the court of first instance as a result of which it was impossible to make it 100% certain that the accused had committed the crime. The absolute certainty, which is necessary for a conviction, should be distinguished from a probability that the crime was committed.
The court is of the view that the evidence collected in the case shows that there is a significant probability that the accused committed the crime with which he is charged. Accordingly, the requirement of Article 249 § 1 of the Code of Criminal Procedure is fulfilled.
As there are no reasons for release from the pre-trial detention (259 § 1 of the Code of Criminal Procedure) it was necessary to decide as in the operative part.”
13. The applicant appealed against the decision of 14 April 1999 but his appeal was rejected on 10 May 1999 by the President of the Lublin Court of Appeal because it was not provided by the law. The applicant filed a further appeal to the Supreme Court (Sąd Najwyższy) but on 18 August 1999 it rejected his appeal for the same reason.
14. The applicant made a fresh application for release but it was dismissed on 14 September 1999 by the Lublin Regional Court. The court gave the following reasons for its decision:
“Marek Czarnecki is charged with the commission of a crime described in Article 148 § 1 of the Criminal Code. In his application he points to the prolonged criminal proceedings against him and the necessity to provide care for his parents.
The Regional Court is of the view that both arguments submitted by the accused should be dismissed. It is not the Regional Court's fault that the court proceedings are prolonged. Recently, it was the accused himself who torpedoed the proceedings which were to take place during the last hearing.
As for the difficult situation of the accused's parents, it is not that tragic since the accused's brother has recently moved out of their flat and he would not have done it if the situation had been worrying.
It should further be stated that a charge concerning the commission of a crime and a possible heavy prison sentence in themselves constitute grounds for pretrial detention.
Taking the above into consideration the Regional Court has not found any grounds for changing the preventive measure.”
15. On 28 September 1999 the Lublin Regional Court extended the applicant's detention until 30 December 1999. The Court gave the following reasons for its decision:
“Marek Czarnecki is charged with the commission of a crime which carries a prison sentence exceeding 8 years. The evidence collected in the case shows that there is a significant probability that the accused has committed the crime with which he is charged. Taking the above into consideration and the lack of the grounds listed in Article 259 § 1 of the Code of Criminal Procedure, as well as the necessity to secure the proper conduct of the court proceedings it was decided as in the operative part.”
16. In 1999 the trial court held several hearings at which it heard witnesses.
17. On 25 April, 12 September and 28 December 2000 as well as on 25 March, 29 May and 7 August 2001 the Lublin Regional Court further prolonged the applicant's detention repeating reasons for the detention previously given.
18. The applicant's numerous appeals and applications for release were unsuccessful.
19. It appears that at the hearing held on 10 September 2001 the prosecutor dropped the charges of homicide against the applicant.
20. On 10 September 2001 the Lublin Regional Court gave judgment. It acquitted the applicant of homicide, convicted him of larceny and sentenced him to one year and six months' imprisonment. On the same date the applicant was released from the detention.
21. Between 27 February and 18 May 1997 the applicant served a prison sentence resulting from a conviction in another case.
22. The Code of Criminal Procedure 1969, which remained in force until 1 September 1998, listed as preventive measures, inter alia, detention on remand, bail and police supervision. Article 209 of the Code, which set out general grounds justifying the imposition of preventive measures, provided as follows:
“Preventive measures may be imposed in order to secure the proper course of proceedings if the evidence against the accused sufficiently justifies the opinion that he has committed a criminal offence.”
23. Furthermore, the Code of Criminal Procedure allowed authorities a margin of discretion as to whether to continue the enforcement of preventive measures. Detention on remand was regarded as the most severe preventive measure. Article 213 of the Code provided as follows:
“A preventive measure shall be immediately quashed or changed if the grounds therefore have ceased to exist or if new circumstances have arisen, which justify quashing a given measure or replacing it with one that is either more or less severe.”
Article 225 of the Code provided:
“Detention on remand shall be imposed only when it is mandatory; this measure shall not be imposed if bail or police supervision, or both of these measures, are considered adequate.”
Article 217 § 1 of the Code, in the version after 1 January 1996, provided insofar as relevant:
“Detention on remand may be imposed if:
(1) there is a reasonable risk that an accused will abscond or go into hiding, in particular when his identity cannot be established or he has no permanent abode [in Poland]; or
(2) there is a reasonable risk that an accused will attempt to induce witnesses to give false testimony or to obstruct the proper conduct of proceedings by any other unlawful means; or
Paragraph 2 of Article 217 then read:
“If an accused has been charged with a serious offence or an intentional offence [for the commission of which he may be] liable to a sentence of a statutory maximum of at least eight years' imprisonment, or if a court of first instance has sentenced him to at least three years' imprisonment, the need to continue detention in order to secure the proper conduct of proceedings may be based upon the likelihood that a heavy penalty will be imposed.”
Article 218 provided:
“If there are no special reasons to the contrary, detention on remand should be lifted, in particular, if:
(1)o it may seriously jeopardise the life or health of the accused; or
(2) oit would entail excessively burdensome effects for the accused or his family.”
24. Until 4 August 1996, when the Code of Criminal Procedure was amended, Polish law did not set out any statutory time-limits concerning detention on remand in court proceedings but only in respect of the investigative stage.
Article 222 of the Code of Criminal Procedure, as applicable after 4 August 1996, provided insofar as relevant:
“3. The whole period of detention on remand until the date on which the court of first instance gives judgment may not exceed one year and six months in cases concerning offences. In cases concerning serious offences [offences for the commission of which a person was liable to a sentence of a statutory minimum of at least 3 years' imprisonment] this period may not exceed two years.
4. In particularly justified cases the Supreme Court may, on an application made by the court competent to deal with the case, ... prolong detention on remand for a further fixed period exceeding the time-limits set in paragraphs 2 and 3, when it is necessary in connection with a suspension of the proceedings, a prolonged psychiatric observation of the accused, when evidence needs to be obtained from abroad or when the accused has deliberately obstructed the termination of the proceedings in the terms referred to in paragraph 3.”
Subsequently, paragraph 4 was extended to include also “other significant circumstances, which could not be overcome by the organs conducting the proceedings”.
25. The Code of Criminal Procedure of 1997, which entered into force on 1 September 1998, defines detention on remand as one of the socalled “preventive measures” (środki zapobiegawcze). The other measures are bail (poręczenie majątkowe), police supervision (dozór policji), guarantee by a responsible person (poręczenie osoby godnej zaufania), guarantee by a social entity (poręczenie społeczne), temporary ban on engaging in a given activity (zawieszenie oskarżonego w określonej działalności) and prohibition to leave the country (zakaz opuszczania kraju).
Article 249 § 1 sets out the general grounds for imposition of the preventive measures. That provision reads:
“Preventive measures may be imposed in order to ensure the proper conduct of proceedings and, exceptionally, also in order to prevent an accused's committing another, serious offence; they may be imposed only if evidence gathered shows a significant probability that an accused has committed an offence.”
26. Article 258 lists grounds for detention on remand. It provides, in so far as relevant:
“1. Detention on remand may be imposed if:
(1) there is a reasonable risk that an accused will abscond or go into hiding, in particular when his identity cannot be established or when he has no permanent abode [in Poland];
(2) there is a justified fear that an accused will attempt to induce [witnesses or co-defendants] to give false testimony or to obstruct the proper course of proceedings by any other unlawful means;
2. If an accused has been charged with a serious offence or an offence for the commission of which he may be liable to a statutory maximum sentence of at least 8 years' imprisonment, or if a court of first instance has sentenced him to at least 3 years' imprisonment, the need to continue detention to ensure the proper conduct of proceedings may be based on the likelihood that a severe penalty will be imposed.”
27. The Code sets out the margin of discretion as to the continuation of a specific preventive measure. Article 257 reads, in so far as relevant:
“1. Detention on remand shall not be imposed if another preventive measure is sufficient.”
Article 259, in its relevant part, reads:
“1. If there are no special reasons to the contrary, detention on remand shall be lifted, in particular if depriving an accused of his liberty would:
(1) seriously jeopardise his life or health; or
(2) entail excessively harsh consequences for the accused or his family.”
28. The 1997 Code not only sets out maximum statutory time-limits for detention on remand but also, in Article 252 § 2, lays down that the relevant court – within those time-limits – must in each detention decision determine the exact time for which detention shall continue.
Article 263 sets out time-limits for detention. In the version applicable up to 20 July 2000 it provided:
“1. Imposing detention in the course of an investigation, the court shall determine its term for a period not exceeding 3 months.
camnot be terminated within the term referred to in paragraph 1, the court of first instance competent to deal with the case may – if need be and on the application made by the [relevant] prosecutor – prolong detention for a period [or periods] which as a whole may not exceed 12 months.
3. The whole period of detention on remand until the date on which the first conviction at first instance is imposed may not exceed 2 years.
4. Only the Supreme Court may, on application made by the court before which the case is pending or, at the investigation stage, on application made by the Prosecutor General, prolong detention on remand for a further fixed period exceeding the periods referred to in paragraphs 2 and 3, when it is necessary in connection with a stay of the proceedings, a prolonged psychiatric observation of the accused, a prolonged preparation of an expert report, when evidence needs to be obtained in a particularly complex case or from abroad, when the accused has deliberately prolonged the proceedings, as well as on account of other significant obstacles that could not be overcome.”
On 20 July 2000 paragraph 4 was amended and since then the competence to prolong detention beyond the time-limits set out in paragraphs 2 and 3 has been vested with the court of appeal within whose jurisdiction the offence in question has been committed.
VIOLATED_ARTICLES: 5
VIOLATED_PARAGRAPHS: 5-3


ITEMID: 001-106156
LANGUAGEISOCODE: ENG
RESPONDENT: HRV
BRANCH: ADMISSIBILITY
DATE: 2011
DOCNAME: KOVAC v. CROATIA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Anatoly Kovler;George Nicolaou;Julia Laffranque;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska;Peer Lorenzen
TEXT: The applicant, Ms Ljerka Kovač, is a Croatian national who was born in 1941 and lives in Varaždin. She was represented before the Court by Mr M. Fosin, an advocate practising in Varaždin. The Croatian Government (“the Government”) were represented by their Agent, Ms Š. Stažnik.
The facts of the case, as submitted by the parties, may be summarised as follows.
On 5 January 1998 the applicant concluded a loan agreement whereby she as a lender lent a sum of 5,000 German marks (DEM) to company A. in return for monthly interest at 2%. The company also agreed to return the money, together with the accrued interest, upon the applicant’s demand.
In August 1998 the applicant brought a civil action in the Varaždin Municipal Court (Općinski sud u Varaždinu) against company A., seeking repayment of the loan. In October 1998 the court ruled in her favour and ordered the company to pay her 17,600 Croatian kunas (HRK) together with the accrued statutory default interest. However, the applicant was unable to enforce that judgment because company A. had no assets. In March 2001 the Varaždin Commercial Court (Trgovački sud u Varaždinu) instituted summary liquidation proceedings against company A.
Meanwhile, in July 1999 the applicant, together with thirty-eight other plaintiffs (who also deposited their savings with company A.), brought a civil action in the Varaždin Municipal Court against the directors (and only shareholders) of the company A., Mr B.D. and Mrs N.D., seeking pecuniary damages. In July 2006 the court ruled for the plaintiffs. In particular, it ordered B.D. and N.D. to pay the applicant 2,556.46 euros (EUR).
In December 2000 the Varaždin Municipal State Attorney indicted B.D. and N.D., before the Varaždin Municipal Court on several counts of fraud and a number of other criminal offences. They were eventually found guilty as charged and sentenced to four years and four months’ and four years and two months’ imprisonment, respectively. The applicant participated in those proceedings as an injured party (oštećenik).
On 7 January 2002 the applicant was assaulted in the street by Mr B.D., who punched her once in the face, as a result of which she sustained injuries (a bruised nose and cracked nose cartilage).
On 10 June 2002 the applicant submitted a motion to indict (optužni prijedlog) B.D., accusing him of inflicting minor bodily injury, to the Varaždin Municipal Court.
On 12 July 2005 the Municipal Court found B.D. guilty and sentenced him to thirty-five days’ imprisonment.
On 3 October 2005 the applicant appealed against the first-instance judgment. In her appeal she wrote, inter alia:
“From the very beginning of these proceedings the bias of Judge M. was obvious, which I will explain in my appeal.
... in the judgment Judge M. gave credence to the statement of the accused because his statement was ‘logical and convincing’. ... Such a view on the part of the judge I can only qualify as an obvious bias.
...
Only then did I realise why the judge was simply [giving vent to her instincts and] harassing my witnesses [when examining them] regarding the injury the accused B.D. had inflicted on me by punching me.
...
That statement was given by my husband S.M. on 26 April 2005 ... and all this is the result of him being provoked by the judge.
...
On 26 April 2005 the main hearing started anew because of a deliberate lapse of the two-month time-limit. ... B.D. ... suggests that the witness [B.G.] be summoned and examined at the hearing. Of course this proposal from B.D. was accepted, even though the judge knew why B.D. had not attended the hearing when B.G. and S.M. had testified, but B.D. has a statutory right to dictate the pace of the court proceedings. ... When my husband had to testify again on 26 April 2005 he was so upset that he ... exaggerated my injuries in order to express his rage [as regards] such conduct – the protraction of these criminal proceedings. Is it then really surprising that there are so many unsolved cases if for such simple criminal proceedings five or maybe even more hearings have to be scheduled? Anyway, by then I already had the impression that the judge had already reached a decision, so I was not surprised when on 27 September 2005 I received the judgment as it stands. The fact that my husband was obviously upset was noticed by other lenders [observers, namely, individuals who had lent money to B.D.’s company] who were present in the courtroom and followed the trial ..., who were appalled by such conduct of the proceedings, in which the judge’s bias could not be hidden.
...
The finding of the judge ... in which she gives credence to the statement of the accused, because his statement is ‘logical and convincing’ ... is regrettable but even more biased. What is important is that the accused gained the trust of the court.
...
In ... the judgment the judge again incorrectly states that ‘the plaintiff, S.M. and B.G. are all investors in the company of the injured party’ (instead of ‘the injured party’ it should be ‘the accused’). First of all Mr G. and I are lenders, which is very different from investors, and the judge should know that difference, given her job description.
...
In the ... judgment the evident bias of the judge is visible because it cannot be said that she is inexperienced or incompetent when she assesses my behaviour towards the accused with bias ...
...
The accused B.D. is lucky that he found understanding and protection in the judge. How wisely cited my husband’s statement was in the judgment and its intention, but the judge did not indicate when this statement had been given because my husband had had to testify twice ...
...
It is visible that in that part of the judgment the judge again ruled with certain intent against me ...
...
I am asking the Varaždin County Court to assign my appeal to the members of the panel who did not decide on the appeal of married couple D. on 17 February 2003 in the criminal proceedings no. K-475/00, and these are judges Z.P., D.K. and M.O., because their protection of married couple D. and bias in delivering the judgment was obvious. As I was present at the [hearing], I witnessed that myself.
...
Having regard to these protracted court proceedings, the unwarranted scheduling of five hearings and the biased judgment, which in a way justifies the act of physical violence of the accused against me, as well as the deliberate failure to record his statement that he was not sorry for having punched me, it is not surprising that, because of certain judges, other citizens and I think the judiciary is corrupt ... it is no wonder that in our country the legal order does not function and that every day crime and violence are burgeoning.”
On 8 November 2005 the Varaždin County Court (Županijski sud u Varaždinu) dismissed the applicant’s appeal and upheld the first-instance judgment.
After it had completed the preliminary examination of the applicant’s appeal of 3 October 2005 in the above criminal proceedings, on 8 November 2005 the panel of the Varaždin County Court, composed of judges I.M., S.M. and S.V.P., issued a decision whereby it fined the applicant 5,000 Croatian kunas (HRK) for contempt of court. The decision, which was served on the applicant on 22 November 2005 read, in its relevant part, as follows:
“I. Pursuant to section 73(1) of the Criminal Procedure Act ... the private prosecutor Ljerka Kovač ... is hereby fined 5,000 [Croatian] kunas for insulting the court in her appeal lodged against the judgment of the Varaždin Municipal Court of 12 July 2005 ...
II. The private prosecutor Ljerka Kovač shall pay the above fine within six months of this decision becoming final.
III. If the private prosecutor does not pay the above fine of HRK 5,000 in full or in part within six months of this decision becoming final, the fine shall, on the basis of section 157 of the Criminal Procedure Act, be converted into a prison sentence, which shall be imposed by applying the provisions of the Criminal Code, mutatis mutandis.
Reasons
Apart from the accused B.D., the private prosecutor Ljerka Kovač also lodged an appeal against the judgment of the Varaždin Municipal Court of 12 July 2005...
While deciding on the appeal of the private prosecutor ... on 8 November 2005, this [court] found that the private prosecutor in her appeal against the above-mentioned judgment of the Varaždin Municipal Court had insulted the court. Since the provision of section 73 of the Criminal Procedure Act is mandatory as it provides that ‘the court shall impose a fine of up to 20,000 [Croatian] kunas ...’ – which means that the court is obliged to fine a person if he or she insults the court in his or her written submissions – this [court], finding that the private prosecutor had insulted the court, fined [her] as indicated in the operative provisions of this decision.
Namely, in her appeal the private prosecutor makes, inter alia, [the following] insulting incriminations: ‘From the very beginning of the proceedings the bias of Judge M. was obvious.’ ... ‘Such an attitude on the part of the judge I can only qualify as an obvious bias.’ ... ‘Only then did I realise why the judge was simply harassing my witnesses.’ ... ‘All this is a result of my husband being provoked by the judge.’ ... ‘Because of the deliberate lapse of the two-month time-limit.’ ‘...Mr D. has a statutory right to dictate the pace of the court proceedings’ ... ‘expressed his rage [as regards] such conduct – protraction of these criminal proceedings’ ... ‘Anyway, by then I already had the impression that the judge had already reached a decision, so I was not surprised when on 27 September 2005 I received the judgment as it stands.’ ... ‘I am appalled by such conduct of the proceedings in which the bias of the judge could not be hidden.’ ... ‘The finding of the judge ... is regrettable but even more biased.’ ... ‘The only important thing is that the accused gained the trust of the court.’ ... ‘The judge should know that difference given her job description.’ ... ‘The evident bias of the judge is visible because it cannot be said that she is inexperienced or incompetent when she assesses my behaviour.’ ... ‘The accused B.D. is lucky that he found understanding and protection in the judge.’ ... ‘How wisely cited was the statement of my husband in the judgment and its intention’ ... ‘The judge again ruled with a certain intent against me.’ ... ‘I am asking the Varaždin County Court to assign my appeal to the members of the panel who did not decide on the appeal of married couple D. on 17 February 2003 in the criminal proceedings no. K-475/00, and these are judges Z.P., D.K. and M.O., because their protection of married couple D. and bias in delivering the judgment was obvious. As I was present at the [hearing], I witnessed that myself.’ ... ‘Deliberate failure to record his statement.’... ‘It is not surprising that, because of certain judges, other citizens and I think the judiciary is corrupt.’... ‘it is no wonder that in our country the legal order does not function and that every day crime and violence are burgeoning.’
This [court] finds that the above-mentioned words [made bold for emphasis] from the private prosecutor’s appeal are insulting in their content and contain insulting allusions ... questioning the professional qualities of Judge M. of the Varaždin Municipal Court as well as the judges Z.P., D.K. and M.O. of the County Court, whose withdrawal the private prosecutor in fact requested in her appeal as [they were], in [her] view, obviously biased ...
In this [court’s] view, the appeal of the private prosecutor is insulting and demeaning as a whole, which is particularly exemplified in the above-cited passages from her appeal, where [she] displays blatant arrogance towards the judges and judiciary in general. Her belittling attitude and desire to give lessons to everyone is apparent. She seeks to demean the judges, which is particularly exemplified when the private prosecutor dares to say that Judge M. was harassing her witnesses ... that the public was appalled by the way in which the judge conducted the proceedings, that the finding of the judge was regrettable but even more biased, that the judge should have known what investment is, that the judge was neither inexperienced nor incompetent when she assessed the behaviour of the private prosecutor towards the accused with bias. Therefore, in this [court’s] view, there is no doubt that the private prosecutor in her appeal insults and belittles the court by the above-mentioned incriminations. This is the case especially since the above-mentioned allegations are not necessary for the elucidation of the arguments raised in the appeal, as the incriminations in question also contain insulting allusions concerning the professional qualities of Judge M. and other judges of this court, through which the private prosecutor objectively tarnishes the reputation of the court.
Having regard to the list of incriminations in the private prosecutor’s appeal, by which she insults the judges and singles some [of them] out while expressing her opinions as regards the bias and corruption of certain judges and the judiciary as a whole, there is no doubt that this [court] was obliged, within the meaning of section 73(1) of the Criminal Procedure Act, to fine [her].
The above fine appears adequate given the incriminations in the appeal and their number and severity. The private prosecutor will be able to pay this fine ... even though she refused to indicate the amount of her pension. However, it is evident [from the case file] that she owns a flat, so her refusal to indicate the amount of her pension – which she is otherwise obliged [to do] – only shows her arrogance and demeaning attitude towards certain judges and the court as a whole.
This [court], however, [established] that her pension amounts to HRK 3,900, and took [it] into account when determining the amount of the fine. The court therefore considers that she will be able to pay the fine of HRK 5,000 within the six-month time-limit. [It is to be noted] that if the above fine is not paid in full or in part within [that] time-limit, it will be converted into an appropriate prison sentence on the basis of section 157 of the Criminal Procedure Act by applying the provisions of the Criminal Code, mutatis mutandis.”
On 25 November 2005 the applicant lodged an appeal against that decision, arguing, inter alia, that the remarks made in her appeal of 3 October 2005 had been taken out of context and that their aim had not been to insult, but to undermine the lawfulness of the appealed first-instance judgment of 12 July 2005. By making those remarks she had been expressing her opinion and had had reason to believe that it was valid. However, she had been fined only because she had dared to doubt the impartiality of Judge M. and to complain about judges who were considered to be infallible.
On 22 December 2005 the Supreme Court (Vrhovni sud Republike Hrvatske) dismissed the applicant’s appeal and upheld the first-instance decision. The Supreme Court’s decision, which was served on the applicant on 3 April 2006 read, in its relevant part, as follows:
“The [Varaždin County Court] correctly found that the private prosecutor Ljerka Kovač, in her appeal lodged against the judgment of the Varaždin Municipal Court of 12 July 2005, expressed disrespect for judicial office and thereby insulted the court.
Namely, the fact is that by the remarks made in the appeal at issue, which are highlighted in the contested decision, the court is being insulted and belittled. [This is so] because those incriminating remarks were obviously not necessary for the elucidation of the grounds for the appeal. By their content [they] represent demeaning and insulting allusions and expressions, which groundlessly question the professional qualities of judges, insult the court as a whole, show arrogance in respect of judges and the judiciary in general and thereby objectively tarnish the reputation of the court.
As the court is, on the basis of the mandatory statutory provision of section 73(1) of the Criminal Procedure Act, obliged to impose a fine when it finds that the conditions set forth in that provision have been met, the imposition of a fine on the private prosecutor – as a measure to secure [procedural] discipline of the parties – in order to prevent her possible such or similar behaviour in the future – was well-founded.
Therefore, the private prosecutor’s appeal in which she does not actually deny having made insulting remarks, is unfounded.
Contrary to the arguments raised in the appeal, the amount of the imposed fine of HRK 5,000 [Croatian] kunas, which under section 73(1) of the Criminal Procedure Act, may be up to HRK 20,000, is appropriate to the number, gravity and severity of the insults, the income and the general behaviour of the private prosecutor so far, where regard should be had to the fact ... that the fine was ordered to be paid within six months.”
On 9 May 2006 the applicant lodged a constitutional complaint under section 62 of the Constitutional Court Act against the Supreme Court’s decision. On 26 June 2006 the Constitutional Court declared the applicant’s constitutional complaint inadmissible and served its decision on her on 15 July 2006. It held that the impugned decision did not concern the merits of the case and, as such, was not susceptible to constitutional review.
The applicant paid the fine on 19 September 2006.
The relevant part of the 1999 Constitutional Act on the Constitutional Court of the Republic of Croatia (Ustavni zakon o Ustavnom sudu Republike Hrvatske, Official Gazette no. 99/1999 of 29 September 1999 – “the Constitutional Court Act”), as amended by the 2002 Amendments (Ustavni zakon o izmjenama i dopunama Ustavnog zakona o Ustavnom sudu Republike Hrvatske, Official Gazette no. 29/2002 of 22 March 2002), which entered into force on 15 March 2002, reads as follows:
“1. Any person may lodge a constitutional complaint with the Constitutional Court if he or she deems that the decision of a state authority, local or regional selfgovernment, or a legal person vested with public authority, concerning his or her rights or obligations, or about a suspicion or an accusation of his or her having committed a criminal offence, has violated his or her human rights or fundamental freedoms, or right to local or regional self-government, guaranteed by the Constitution (hereinafter: constitutional rights)...
2. If another legal remedy is allowed against the violation of the constitutional rights [complained of], the constitutional complaint may be lodged only after this remedy has been exhausted.
3. In matters in which an administrative action or, in civil and non-contentious proceedings, an appeal on points of law [revizija] are allowed, remedies shall be considered to have been exhausted only after the decision on these legal remedies has been given.”
The Criminal Procedure Act of 1997 (Zakon o kaznenom postupku, Official Gazette of the Republic of Croatia nos. 110/1997, 27/1998 (corrigendum), 58/1999, 112/1999, 58/2002, 143/2002 (corrigendum), 62/2003 (consolidated text) and 115/2006), in its relevant part, provided as follows:
“1. The court shall impose a fine of up to 20,000 [Croatian] kunas on defence counsel, a legal representative, legal guardian, injured party or private or subsidiary prosecutor, witness or expert who insults the court or another participant in the proceedings [either] orally or in his or her written submissions. The decision as regards the fine to be imposed shall be rendered by the investigating judge or the panel before which the insulting remark was made or, if such a remark was made in a written submission, the decision shall be rendered by the court which has to decide on that submission. An appeal lies against this decision. ...
2. The fine imposed pursuant to paragraph 1 of this section shall have no effect on the prosecution or the imposition of a [criminal] sanction for the criminal offence committed by the insult.”
“When a fine imposed in accordance with the provisions of this Act is not paid in full or in part within the fixed time-limit, the court may convert it into a prison sentence which shall be imposed by applying the provisions of the Criminal Code, mutatis mutandis.”
Article 52 § 3 of the Criminal Code (Kazneni zakon, Official Gazette no. 110/97, with subsequent amendments) reads as follows:
“A fine shall be converted into a prison sentence so that one daily income is converted into one day of imprisonment, where the maximum duration of imprisonment into which the fine was converted shall not exceed twelve months.”
According to the practice of the domestic courts, before taking a decision to convert the fine into a prison sentence, a court has to summon and hear the person fined. An appeal always lies against such a decision (see, for example, the Supreme Court decision no. Kž 443/08-3 of 21 May 2008).


ITEMID: 001-103354
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: CHAMBER
DATE: 2011
DOCNAME: CASE OF SOLTYSYAK v. RUSSIA
IMPORTANCE: 3
CONCLUSION: Remainder inadmissible;Violation of P4-2;Non-pecuniary damage - award
JUDGES: Anatoly Kovler;Christos Rozakis;Dean Spielmann;George Nicolaou;Giorgio Malinverni;Sverre Erik Jebens
TEXT: 6. The applicant was born in 1958. He lived at the Baikonur space launch site in Kazakhstan which is rented by, and under the administration of, the Russian Federation and is under joint Kazakh-Russian jurisdiction.
7. From December 1983 to January 2004 the applicant served as a military officer in the Soviet (later Russian) Army at the Baikonur site. On 8 April 1986 he received security clearance and was granted access to information concerning rocket test launches, including the military unit responsible, launch parameters and test results, which were classified as top secret.
8. On 1 September 1999 the applicant signed a standard contract concerning access to State secrets, which provided in the relevant part as follows:
“Pursuant to the State Secrets Act and other normative regulations concerning the protection of State secrets, of which I am aware, I take upon myself an obligation to keep confidential any information constitutive of State secrets and accept a temporary restriction on my rights which may affect:
the right to go abroad for a period of five years ...”
9. By an order of 21 May 2004, the applicant retired from the military upon reaching the age limit. His service travel document was taken away from him and destroyed.
10. On 24 November 2004 the applicant asked the passports and visas service of the Baikonur police department to issue him with a travel passport (заграничный паспорт).
11. On 11 May 2005 the passports and visas service sent him a notice which stated that his right to leave the Russian Federation had been temporarily suspended until August 2009 “on the basis of recommendation no. 9/196 of 16 February 2005 and the decision of the command of military unit 11284”. According to the information submitted by the Government, the applicant was last exposed to secret information on 16 December 2003 and the restriction on his right to travel was due to expire on 16 December 2008.
12. The applicant complained to a court. He submitted that, lacking a travel document, he was unable to return to Russia from Kazakhstan or go to the Kaliningrad Region, which is the Russian exclave between Poland and Lithuania on the Baltic Sea.
13. On 24 May 2005 the Military Court of the 26th Garrison rejected the applicant's complaint. It found that the refusal to issue a travel passport had been lawful because the applicant had previously had knowledge of State secrets during his service in the military. Access to State secrets had not been granted to him against his will, and he had received a pay rise on that ground. Furthermore, the applicant did not need a travel document to return to Russia or to go to the Kaliningrad Region, his identity document (общегражданский паспорт) was sufficient for these purposes.
14. On 1 July 2005 the Third Circuit Military Court upheld, on an appeal by the applicant, the judgment of 24 May 2005.
15. The applicant sued the military commander of the Russian Space Forces, claiming that he should have received full title to his service flat on his retirement.
16. On 5 October 2004 the Military Court of the 26th Garrison dismissed the action as having no grounds in domestic law. On 10 December 2004 the Third Circuit Military Court upheld the judgment on appeal.
17. Section 2 provides that the right of a Russian citizen to leave the Russian Federation may only be restricted on the grounds of, and in accordance with, the procedure set out in the Act. Section 15(1) provides that the right of a Russian national to leave the Russian Federation may be temporarily restricted if he or she has had access to especially important or top-secret information classified as a State secret and has signed an employment contract providing for a temporary restriction on his or her right to leave the Russian Federation. In such cases the restriction is valid until the date set out in the contract, but for no longer than five years from the date the person last had access to especially important or top-secret information. The Interagency Commission for the Protection of State Secrets can extend this period up to a maximum of ten years.
18. The granting of access to State secrets presupposes the consent of the person concerned to partial and temporary restrictions on his or her rights in accordance with section 24 of the Act (section 21).
19. The rights of persons who have been granted access to State secrets may be restricted. The restrictions may affect their right to travel abroad during the period stipulated in the work contract, their right to disseminate information about State secrets and their right to respect for their private life (section 24).
20. The relevant part of Opinion no. 193 (1996) on Russia's request for membership of the Council of Europe, adopted by the Parliamentary Assembly on 25 January 1996 (7th Sitting), reads as follows:
“10. The Parliamentary Assembly notes that the Russian Federation shares fully its understanding and interpretation of commitments entered into ... and intends:
...
xv. to cease to restrict – with immediate effect – international travel of persons aware of state secrets, with the exception of those restrictions which are generally accepted in Council of Europe member States ...”
21. The laws of the founding members of the Council of Europe have not restricted the right of their nationals to go abroad for private purposes since the inception of the organisation. The Schengen Agreement, which was originally signed on 14 June 1985 by five States and has, to date, been implemented by twenty-five States, has removed border posts and checks in much of the Western part of Europe and abolished any outstanding restrictions on European travel.
22. Many other Contracting States, including, in particular, the former Socialist countries, repealed restrictions on international travel by persons having knowledge of “State secrets”, a common legacy of the Socialist regime, during the process of democratic transition (for example, Estonia, Georgia, Hungary, Latvia, Lithuania and Poland). Among the Council of Europe States, with the exception of Russia, Azerbaijan was the last to abolish such a restriction in December 2005. Nevertheless, three member States (Armenia, Azerbaijan and Ukraine) provide for temporary restrictions on permanent emigration – but not on international travel for private purposes – for persons who have had access to State secrets.
23. Article 12 of the International Covenant on Civil and Political Rights (“ICCPR”), to which the Russian Federation is a party, defines the right to freedom of movement in the following terms:
“1. Everyone lawfully within the territory of a State shall, within that territory, have the right to liberty of movement and freedom to choose his residence.
2. Everyone shall be free to leave any country, including his own.
3. The above-mentioned rights shall not be subject to any restrictions except those which are provided by law, are necessary to protect national security, public order (ordre public), public health or morals or the rights and freedoms of others, and are consistent with the other rights recognized in the present Covenant.”
24. General Comment No. 27: Freedom of movement (Article 12), adopted by the Human Rights Committee under Article 40 § 4 of the ICCPR on 2 November 1999 (CCPR/C/21/Rev.1/Add.9), reads as follows:
“1. Liberty of movement is an indispensable condition for the free development of a person ...
2. The permissible limitations which may be imposed on the rights protected under article 12 must not nullify the principle of liberty of movement, and are governed by the requirement of necessity provided for in article 12, paragraph 3, and by the need for consistency with the other rights recognized in the Covenant.
...
8. Freedom to leave the territory of a State may not be made dependent on any specific purpose or on the period of time the individual chooses to stay outside the country. Thus travelling abroad is covered, as well as departure for permanent emigration ...
...
9. ... Since international travel usually requires appropriate documents, in particular a passport, the right to leave a country must include the right to obtain the necessary travel documents. The issuing of passports is normally incumbent on the State of nationality of the individual. The refusal by a State to issue a passport or prolong its validity for a national residing abroad may deprive this person of the right to leave the country of residence and to travel elsewhere ...
...
11. Article 12, paragraph 3, provides for exceptional circumstances in which rights under paragraphs 1 and 2 may be restricted ...
...
14. Article 12, paragraph 3, clearly indicates that it is not sufficient that the restrictions serve the permissible purposes; they must also be necessary to protect them. Restrictive measures must conform to the principle of proportionality; they must be appropriate to achieve their protective function; they must be the least intrusive instrument amongst those which might achieve the desired result; and they must be proportionate to the interest to be protected.
...
16. States have often failed to show that the application of their laws restricting the rights enshrined in article 12, paragraphs 1 and 2, are in conformity with all requirements referred to in article 12, paragraph 3. The application of restrictions in any individual case must be based on clear legal grounds and meet the test of necessity and the requirements of proportionality. These conditions would not be met, for example, if an individual were prevented from leaving a country merely on the ground that he or she is the holder of State secrets ...”