ITEMID: 001-58087
LANGUAGEISOCODE: ENG
RESPONDENT: AUT
BRANCH: CHAMBER
DATE: 1997
DOCNAME: CASE OF WORM v. AUSTRIA
IMPORTANCE: 3
CONCLUSION: Preliminary objection dismissed (Article 35-1 - Six month period);No violation of Article 10 - Freedom of expression -{General} (Article 10-1 - Freedom of expression)
TEXT: 6. The applicant, Mr Alfred Worm, is a journalist. He was born in 1945 and lives in Vienna.
7. At the material time the applicant was working for Profil, an Austrian periodical dealing mostly with politics. For several years, he investigated into and reported on the case of Mr Hannes Androsch, a former Vice-Chancellor and Minister of Finance, who was involved in certain criminal proceedings.
8. In 1989 Mr Androsch had been convicted by the Vienna Court of Appeal (Oberlandesgericht) of having made false statements as a witness on two occasions. The court found that he had, before a parliamentary investigating committee (Untersuchungsausschuß), wrongly stated that certain amounts of money had been put at his disposal by a Mr S., whereas in fact they had been transferred from anonymous bank accounts operated by his wife and himself. Furthermore, in the context of criminal proceedings against financial officers charged with abuse of authority, Mr Androsch had stated that several anonymous accounts were held by a Mr S., whereas in fact they were operated by his wife, his mother and himself.
9. In 1991 the Vienna Regional Criminal Court (Landesgericht für Strafsachen), sitting as a court of two professional judges and two lay judges (Schöffengericht), conducted criminal proceedings against Mr Androsch concerning charges of tax evasion. It held hearings, inter alia, on 25 and 26 May 1991.
On 8 October 1991 Mr Androsch was convicted of having evaded taxes between 1973 and 1981. He was sentenced to a fine of 1.8 million Austrian schillings (ATS).
10. On 1 July 1991 Profil had published a two-page article written by the applicant, relating to the above proceedings. It read as follows:
“ADJOURNED FOR REFLECTION
A criminal court sitting with lay judges spent two days considering Hannes Androsch's tax evasion. The atmosphere during the trial was glacial.
‘Above all, there were to be no mistakes during the proceedings. The case was to be handled with common prudence, properly and to the best of our knowledge and belief – but not with kid gloves!’ (Mr Heinz Tschernutter, tax investigator and witness, when asked what principles had governed the hearing of the Androsch case.)
On the day before the trial [the Austrian newspaper] Die Presse dropped the bombshell that was meant to shake all Austria. Lawyer Herbert Schachter was quoted as saying: ‘I’m sure that Dr Androsch will present his case in an impressive manner.’
The horizon was darkened by this impressive presentation and the earth shook as the accused worsened his lousy position by taking refuge in lapses of memory (‘I can't remember’ – ‘I don't have any detailed knowledge’) and by attempting to shift the blame onto others (‘I was represented by tax advisers in all those years’) or by playing the animal that has been maltreated (‘There is not a single large-scale business in the whole of Austria that has been subjected for years to as many inspections as I have been’).
Hannes Androsch's biggest problem is Hannes Androsch. His second biggest problem is his lawyer, Herbert Schachter. Together, defending counsel and client are invincible. If blatant scorn could change the temperature, the courtroom would be covered by a thick layer of ice.
The patient judge, Friedrich Zeilinger, enquires, ‘So, what exactly happened?’ The blasé defendant replies, ‘I would ask you to infer exactly what happened from the file. You have the documents in front of you – I haven't.’
At another point Androsch said, with a disdainful gesture towards Friedrich Matousek: ‘You, my dear Public Prosecutor ...’ in a tone as if to say ‘You wretched worm!’
Androsch underestimates the judiciary. Once again. Judge Zeilinger knows the file inside out, as was clear from each of his questions. The public prosecutor, Matousek, is able to find his way around in the dark generated by the ‘international legal adviser's’ murky financial deals, and, after all, the prosecuting authorities have been examining the flow of funds to and from Hannes Androsch for a good decade.
The accused mistook the excessively polite and markedly accommodating manner of the presiding judge for weakness. He has also known the public prosecutor for years and yet still doesn't know him properly. Matousek speaks quietly and slowly so that one can follow what he says, and acts in a spectacularly unspectacular manner. Only the arrogant interpret his lack of grand gestures as cluelessness.
Even the public prosecutor did make one mistake, however, when he cited the judgment of the Court of Appeal in the proceedings against Androsch for giving false evidence (now concluded) and referred to ‘long-term, ingenious and sophisticated linking of accounts’. The alleged tax evasion was perhaps ‘long-term’ but by no means ‘ingenious and sophisticated’.
The opposite was true: anyone venturing into the maze of Androsch's accounts containing undeclared money is amazed by the structure's simplicity. It is not only wholly lacking in sophistication but is almost astoundingly crude. Crude not because Androsch lacked intelligence but rather because it was based on the cast-iron foundation of the misplaced loyalty of officials. While Androsch was Finance Minister, until January 1981, he could rely on the zealous but unlawful obedience of a number of powerful officials. As soon as Androsch left, those officials had their hands full concealing their complicity in the cover-up. Admittedly, a whole string of other officials, by no means excessively brave but simply law-abiding, attempted again and again to ensure that the law prevailed. They foundered, however, on practicalities. The team led by the Carinthian tax investigator, Adolf Panzenböck (1982 to 1984) certainly gathered all the relevant details, but the head of one of the Vienna tax offices who had been in charge of the case for only a day and a half issued a clean bill of health. And last week, when they appeared as witnesses, the tax officials Walter Handerek, Heinz Tschernutter and Gerhard Berner, who reopened the file between 1985 and 1988, were treated by defending counsel Herbert Schachter as though they were the accused rather than Androsch.
It has been known since 1980 that Androsch evaded taxes. The legal proceedings which were adjourned on Friday furnished further proof that for years the accused escaped prosecution thanks to the zealous obedience of officials. When this was no longer possible as an independent judge was in charge of the investigations, Androsch's advisers took every opportunity to delay the proceedings. It is both symptomatic and revealing that Androsch told the trial court again and again that ‘seven inspections’ had been carried out and on each occasion had found in his favour, and that it was very unfair that just the eighth inspection should shatter the ideal world of his illusory innocence. Everyone except him is to blame for this. Androsch has in the meantime become so completely immersed in the role of the innocent victim that he cannot subjectively conceive of ever having been the guilty party.
From an objective point of view, it should be pointed out in Androsch's favour that there may be several people in Austria who in nearly two decades (from 1965 to 1983) have evaded more than 6.3 million schillings in tax without, however, being subjected to such intensive publicity. On the other hand, no Austrian Finance Minister has simultaneously operated seven accounts containing undeclared funds. And, as the public prosecutor put it, although the origin of part of the money had been established, approximately five million schillings were left from unknown sources.
It was impious of Androsch to wheel out his ‘adoptive uncle’ again at the trial. Admittedly, he argued eloquently that the ‘adoptive uncle’ was actually an ‘adoptive father’, but nonetheless the name of a dead person had been taken in vain. Androsch alarmingly implicated not only his ‘adoptive father’ Gustav Steiner but also his father-in-law Paul Schärf in these financial proceedings. Both were induced to sacrifice themselves for Androsch and to assume a responsibility for undeclared funds and fiduciary relationships which they had never had. The investigating judge Anton Zelenka and subsequently the tax authorities and other judges (Josef Zehetmayer and later the Court of Appeal) proved long ago that Androsch was lying on this point. The flow of funds into and out of the seven accounts containing money not declared to the tax authorities allows of no other interpretation than that Androsch was evading taxes. His defence in court was disgraceful; after so many years one would at least have expected properly constructed arguments. Each time Judge Zeilinger asked him a specific question he either took refuge in lapses of memory or blamed his ‘adoptive father’. He even trotted out the late Sir Arthur Stein, the explorer of the Silk Road, from whom he claims to have received a legacy.
No new submissions were made in court – either as regards the accounts containing undeclared money or as regards the funding for his villas. Anyone who had expected Androsch to tell all and, as announced in the newspapers, to reveal new facts and adduce convincing arguments in his defence was bitterly disappointed. Only in respect of the charges of ‘covert distribution of profits’ was there any legal skirmishing.
Mr Schachter told the court that Androsch was a ‘victim of politics’. ‘Crimes had been attempted’ against Androsch and his client had always had ‘opponents who had gone as far as attempting to destroy Androsch psychologically and physically’.
Bruno Kreisky and others were to blame for this.
The court kept trying very gently to bring the defendant back down to earth from his long-winded waffling. And each time he replied ‘I can't say. After all, I do have other things to do’ (i.e. than grapple with such stupid questions).
If necessary, the authorities can always be blamed for everything. In the instant case this cliché clearly did not apply to Judge Zeilinger. For two mornings he demonstrated drawing-room justice at its best. The judge forced himself to be polite even when he was clearly irritated by the defendant's bored self-assurance. On the very first day of the trial an area of psychological tension built up which the former Minister clearly misinterpreted. From time to time the 53-year-old slipped into the role of a public speaker talking politics. He paid less and less attention to the judge's questions and treated the public prosecutor with increasingly provocative contempt. He turned to look more and more often at the public in the gallery, seeking approval, and his gestures increasingly reminded one of the self-satisfied, powerful Vice-Chancellor and Finance Minister accustomed to victory.
In those circumstances serious tactical errors were made. Defence counsel interrupted the judge and Androsch succumbed to his own charm. He talked and talked, a volubility that the Kronen Zeitung mistook for ‘brilliant rhetoric’. In reality the defendant was distancing himself as much as possible from his own responsibility.
Others were to blame.
Judge Zeilinger did not lose control of the situation for a second, however. From time to time, as was apparent from his posture, he had a sharp word on the tip of his tongue, but he never actually uttered it.
The defendant sensed weakness and made full use of his own – supposed – strength; he forged a link with the public while severing the one with the court.
Judge Zeilinger had prepared for this trial keenly and diligently. By citing facts he kept forcing Androsch into corners from which he could only escape by taking refuge in memory lapses.
In many major trials the sinner has been given a fair chance to the very end. Androsch too had a fair chance last Friday; of twelve defence motions, ten were dismissed and two allowed. The court admitted evidence as to whether in the tax proceedings against Androsch any unlawful influence had been exerted or instructions issued which adversely affected the taxpayer. In the next stage of trial, in August or September (the court even took account of defence counsel's summer holidays!), officials from the Regional Tax Office and the Ministry of Finance will therefore be heard as witnesses.
There comes, however, a point in every trial after which the court expects some sign of understanding. It hopes for a trace of humility that may be appraised as a mitigating circumstance.
The defendant has shown no humility to date, not even for a second. But he now has a few weeks to consider whether it is consonant with the principles of a State based on the rule of law for a Finance Minister and his family to have at their disposal accounts containing millions in undeclared funds.
It is now for him to display greatness. The judicial system has uncovered serious matters. The court nevertheless was guided wholly by the principles of fairness up to the very last moment of the trial last Friday, when it adjourned the proceedings.
For reflection.”
11. Mr Worm was charged under section 23 of the Media Act (Mediengesetz – see paragraph 23 below) for having exercised prohibited influence on criminal proceedings (verbotene Einflußnahme auf ein Strafverfahren).
12. On 12 May 1992 the Vienna Regional Criminal Court, sitting with one judge (Einzelrichter), acquitted the applicant. It found that the text in issue was not capable of influencing the outcome of the proceedings against Mr Androsch and that it was not established that the applicant had acted with such an intention.
13. The court recalled that in 1991 Mr Androsch had been convicted of tax evasion (see paragraph 9 above). In establishing whether the impugned article was capable of influencing the result of these proceedings, the court noted that the wording and content of the article as a whole, as well as the development of the proceedings reported upon, the person of the accused, and the person of the applicant had to be taken into account. The article, unlike court reports of the scandal press, analysed the conduct of the presiding judge, the public prosecutor, defence counsel and in particular the accused, Mr Androsch, almost as a psychologist would have done.
Furthermore, the court found that it was clear for every reader, who was vaguely familiar with the issue, that the applicant, who had been working for Profil for many years, had intensively dealt with the so-called “Causa Androsch” and had frequently reported on it. It appeared from the article that the applicant assumed that the investigations carried out by the tax authorities were correct. He subjected the statements made by the accused at the trial to a critical psychological analysis. However, his way of writing and the wording used were not capable of influencing these proceedings. Even to a lay judge, the applicant's person and his activities as a journalist in the Androsch case were well known. Thus he would not expect the applicant to give a neutral account of the proceedings.
Moreover, it had not been established that the applicant had acted with the intention of influencing the outcome of the proceedings, in particular as it appeared that he was convinced that Mr Androsch would in any event be convicted.
14. On 19 October 1992 the Vienna Court of Appeal, sitting as a court of three professional judges on an appeal by the public prosecutor, held a hearing in the presence of the applicant and his counsel. Mr Worm was questioned and stated in particular that the first sentence of the incriminated passage, namely that “the flow of funds into and out of the seven accounts containing money not declared to the tax authorities allows of no other interpretation than that Androsch was evading taxes”, was a quotation from the public prosecutor's statement during the trial. The latter had also frequently made reference to Mr Androsch's conviction for having made false statements as a witness (see paragraph 8 above).
15. At the end of the hearing, the operative provisions of the judgment as well as the relevant reasons were read out. The court convicted the applicant of having exercised prohibited influence on criminal proceedings and imposed on him forty day-fines of ATS 1,200 each, that is ATS 48,000, or twenty days' imprisonment in default of payment. The publishing firm was made jointly and severally liable for payment of the fine.
16. The full text of the judgment was served on the applicant on 25 March 1993.
17. The court held, inter alia:
“The prosecution appeal is therefore well-founded. It rightly takes as its starting-point that the offence defined in section 23 of the Media Act must be classified as a potentially endangering offence [abstraktes Gefährdungsdelikt] …
In general, a potentially endangering offence is defined as conduct typically capable of bringing a dangerous situation into existence, even if in any given case no one is actually exposed to the danger concerned ...
The law regulates only the offender's conduct – in this case comment on the value of evidence – and links to it the inference that such comment is also capable of influencing the outcome of criminal proceedings. A potentially endangering offence accordingly amounts to conduct which is criminal irrespective of any result it may have [schlichtes Tätigkeitsdelikt] ...
The considerations set out in the judgment at first instance as to the extent to which the comment on Mr Androsch's defence was capable of influencing the outcome of the criminal proceedings were therefore pointless ...
The defendant's replies under examination in criminal proceedings constitute evidence ...
[The passage in issue] constitutes (unfavourable) comment on the value of the answers given by Mr Androsch, not just – as the court below held – a critical psychological analysis ...”
18. It observed that “the objective element of the offence defined in section 23 of the Media Act is constituted not only by unfavourable comment on evidence but also by favourable comment”.
19. The Court of Appeal also contested the Regional Court's assumption that everybody, including the lay judges, knew the applicant's long-standing commitment in the Androsch case and would therefore not be influenced by his article. It was in no way certain that the lay judges regularly read Profil. On the contrary, in spectacular proceedings like the ones in issue, it happened frequently that lay judges would follow the reports in papers they did not usually read. There was no doubt that, at least with regard to the lay judges, the reading of the incriminated article was capable of influencing the outcome of the criminal proceedings.
20. The court added:
“[The above finding] is all the more true in the present case because it can be inferred from the article that the accused wished to usurp the position of the judges dealing with the case.
The objective element of the offence defined in section 23 of the Media Act is accordingly made out.
As regards the subjective element, it should be observed that it is hard to understand why the court below should have concluded that there was no intention to influence the outcome of the trial when that intention was, on the contrary, quite obvious.”
21. The court further found that the applicant's expertise and involvement in the subject matter rather reinforced the impression that he had written the article with the intention of influencing the outcome of the proceedings. He had researched into the case since 1978 and had written more than a hundred articles about it. From the beginning he had been convinced that Mr Androsch had committed tax evasion. In the article in issue he had not only criticised Mr Androsch's statement but had also anticipated the outcome of the proceedings, namely the conviction of the accused.
22. The judgment ended as follows:
“Even the quotation of the answer given by Mr Heinz Tschernutter placed at the top of the article – ‘Above all, there were to be no mistakes during the proceedings. The case was to be handled with common prudence, properly and to the best of our knowledge and belief – but not with kid gloves!’ – gives the average reader the impression that the court was being advised and urged to follow the same approach, in other words not to make any mistakes and not to handle Mr Androsch with kid gloves.”
23. Section 23 of the Media Act (Mediengesetz) is entitled “Prohibited influence on criminal proceedings” (Verbotene Einflußnahme auf ein Strafverfahren) and reads as follows:
“Anyone who discusses, subsequent to the indictment ... [and] before the judgment at first instance in criminal proceedings, the probable outcome of those proceedings or the value of evidence in a way capable [geeignet] of influencing the outcome of the proceedings shall be punished by the court with up to 180 day-fines.”
24. Article 77 of the Code of Criminal Procedure reads:
“(1) Judicial decisions are made public either by being read out in court or by service of the original or a certified copy thereof.
(2) When read out, judgments must be put on record. Upon request, anyone concerned may receive a copy of the judgment.”
In practice, written copies of decisions such as the one at issue in the present case are automatically served on the persons concerned.
25. Under Austrian criminal procedural law, the time allowed for appeals begins to run from the date when the written version of the decision appealed against has been served on the party concerned (Article 79 § 2 of the Code of Criminal Procedure).
NON_VIOLATED_ARTICLES: 10
NON_VIOLATED_PARAGRAPHS: 10-1


ITEMID: 001-97969
LANGUAGEISOCODE: ENG
RESPONDENT: FIN
BRANCH: CHAMBER
DATE: 2010
DOCNAME: CASE OF SOILA v. FINLAND
IMPORTANCE: 4
CONCLUSION: Violation of Art. 10;No violation of Art. 6-1;No violation of Art. 7
JUDGES: David Thór Björgvinsson;Giovanni Bonello;Lech Garlicki;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä
TEXT: 5. The applicant was born in 1973 and lives in Helsinki. He was a journalist on the nationwide magazine 7 päivää.
6. On 4 December 1996 A., the National Conciliator (valtakunnansovittelija, riksförlikningsmannen) at the time, and B., his female friend, entered late at night A.'s home where his wife was present. The situation escalated, the police were called and the incident, which subsequently involved also A.'s grown-up children, led to A.'s arrest. Following the incident, criminal charges were brought against both A. and B. on 18 December 1996. On 16 January 1997 the Helsinki District Court (käräjäoikeus, tingsrätten) sentenced A. to a four-month conditional prison sentence for resisting arrest and for criminal damage (vahingonteko, skadegörelse), and B. to a fine for assault. On 17 January 1997 the Council of State (valtioneuvosto, statsrådet) dismissed A. from his post as National Conciliator. On 25 June 1998 the Appeal Court (hovioikeus, hovrätten) upheld the judgment with respect to B. As regards A., the case was discontinued as he had died on 14 May 1998. On 15 December 1998 the Supreme Court (korkein oikeus, högsta domstolen) refused B. leave to appeal.
7. On 6 February 1997 7 päivää magazine published two articles written by the applicant about A. and B. The first article was entitled “A. collects his female friend every day from work, the relationship continues” and it concerned A.'s and B.'s relationship. B.'s conviction as well as her workplace were mentioned as background information but the major part of the article concerned the journalist's eyewitness statements about how A. and B. spent their free time. The caption of the article stated that “A.'s female friend B. visits his home daily”. Also, several pictures of B. were published. The second article was entitled “The police laughed at the ex-national conciliator, A. arrested the journalists”. It was about A. and his behaviour in certain encounters with the media, and B.'s name was mentioned only in passing. The caption of the article stated that “A. requested executive assistance from the police in order to take his female friend secretly to his home”. Prior to these articles, B.'s identity had been revealed and her picture had been published in the media.
8. In the spring of 1997 A. and B. requested that criminal investigations be conducted against journalists who had written about the incident of 4 December 1996 and the circumstances surrounding it. On an unspecified date they made such a request with respect to the applicant, claiming that the articles published in 7 päivää had invaded B.'s privacy.
9. On 28 November 2001 the public prosecutor brought charges under Chapter 27, section 3(a), paragraph 2, of the Penal Code against the applicant as well as the editor-in-chief (see Jokitaipale and others v. Finland, no. 43349/05, 6 April 2010), in Vantaa District Court. The charges brought against the applicant clearly indicated that the applicant was charged only for having written the articles in question. He was not charged for having been responsible for the headings, pictures or in which part of the magazine the articles were to be published.
10. B. concurred with the charges brought by the public prosecutor. She pursued a compensation claim jointly and severally against the applicant, the editor-in-chief and the publishing company, which was joined to the criminal charges. Charges brought against the other journalists of the magazine as well as the editor-in-chief were examined in the same proceedings.
11. On 8 November 2002 the court, after having held an oral hearing, first decided to declare all parts of the case file secret for ten years except for the applicable legal provisions, the conclusions and the summary of the case. Additionally, B.'s identity was not to be revealed in the public parts of the case file. As to the merits of the case, the court accepted the statement of facts indicated in the charges and noted that the applicant was not responsible for the headings, pictures or in which part of the magazine the articles were to be published. It sentenced the applicant to pay twenty day-fines, amounting to 840 euros (EUR), for invasion of B.'s private life. Moreover, the applicant was ordered to pay B., jointly with the other parties to the case, EUR 4,000 plus interest for non-pecuniary damage as well as her costs and expenses.
12. The District Court found that the facts mentioned in the articles were of a kind to which the protection of private life typically applied. The Supreme Court had already found in 2002 that the national television broadcast on 23 January 1997, in which B.'s name had been mentioned twice in the context of an interview with A., had invaded her private life. B. did not hold such a position in society that the exception in Chapter 27, section 3(a), paragraph 2 of the Penal Code was applicable. The fact that she was a friend of such a person and that she had been involved in the incident that subsequently led to the dismissal of A. from his post as National Conciliator did not justify revealing her identity. Nor was B.'s conviction of a kind that would justify revealing her identity. The Penal Code provision in question did not require that intent to harm be shown but it was sufficient that the dissemination of information about the private life of a person was capable of causing him or her damage or suffering. The applicant, therefore, had had no right to reveal facts relating to B.'s private life.
13. By letter dated 9 December 2002 the applicant appealed to the Helsinki Appeal Court, requesting, inter alia, that an oral hearing be held and if not, that he be given a possibility to submit additional comments. Moreover, he claimed that the disclosure of a convicted person's name could not be considered as falling within the scope of private life, and that the District Court judge had had a fixed idea about the outcome of the case.
14. On 12 October 2004 the Appeal Court, without holding an oral hearing, upheld the District Court judgment. The court balanced the freedom of expression against the protection of private life in the light of the Court's case-law. It found that, according to the preparatory works and the national and the Court's case-law, the facts mentioned in the articles were of a kind to which the protection of private life typically applied. The Supreme Court had already found in 2002 that B. was not a public figure, and the fact that she was a friend of such a person and that she had been involved in the incident that subsequently led to the dismissal of A. from his post as National Conciliator did not justify revealing her identity. Nor was B.'s conviction of a kind that would have justified revealing her identity. The fact that B.'s identity as A.'s friend had previously been revealed in the media did not justify the subsequent invasion of her private life.
15. By letter dated 13 December 2004 the applicant applied for leave to appeal to the Supreme Court, reiterating the grounds already presented before the Appeal Court. Moreover, he claimed that the Appeal Court had not reasoned its judgment sufficiently, and that the judgment was written in a manner suggesting collective criminal liability. This conflicted with the presumption of innocence. Further, he claimed that the restrictions on freedom of expression were neither necessary nor justified in this case.
16. On 15 August 2005 the Supreme Court refused the applicant leave to appeal.
17. The relevant domestic legislation and practice are outlined in the Court's judgment in Flinkkilä and others v. Finland (no. 25576/04, §§ 19-44, 6 April 2010).
18. The relevant international materials are outlined in the Court's judgment in Flinkkilä and others v. Finland (cited above, §§ 45-47).
VIOLATED_ARTICLES: 10
NON_VIOLATED_ARTICLES: 6
7
NON_VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-22788
LANGUAGEISOCODE: ENG
RESPONDENT: CYP
BRANCH: ADMISSIBILITY
DATE: 2002
DOCNAME: KARABARDAK and OTHERS v. CYPRUS
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Gaukur Jörundsson
TEXT: The applicants are Mr Lütfi Celul Karabardak, Mrs Bahire Lütfioğlu, Mr Alper Lütfioğlu, Mr Cahit Lütfioğlu, Mr Lütfi Lütfioğlu and Mrs Aysel Altioğlu. They were born in 1933, 1933, 1958, 1956, 1961 and 1954 respectively and live in the “Turkish Republic of Northern Cyprus” (“TRNC”). They are represented before the Court by Mr Z. Necatigil and Ms S. Karabacak, lawyers practising in Turkey.
The facts of the case, as submitted by the applicants, may be summarised as follows.
The first applicant was living in Erenköy (Kokkina), Cyprus, when he was abducted on 1 January 1964 by forces under the control and/or the responsibility of the respondent Government. The second applicant is the wife of the first applicant. The other applicants are the children of the first applicant.
The applicants submit that in 1964 their village had run out of food supplies because hostilities between the two communities had prevented any form of safe transportation of food. On 1 January 1964 the first applicant, who was a driver by profession, together with his friend, Saydam Hüsnü (Baybora), took his bus and headed towards the Turkish-Cypriot town of Lefke. On the way, whilst passing through the Greek-Cypriot village of Pyrgos, he and his friend were abducted by a group of armed Greek-Cypriots, including a police officer, and taken to an unknown destination. They were never heard of again.
The persistent efforts of the relatives to ascertain the fate of the missing persons were in vain. Subsequently, on 4 April 1989, the first applicant’s case was submitted to the appropriate authority on missing persons, the United Nations Committee on Missing Persons in Cyprus (“CMP”) (case number 145).
According to the personal diary of a certain Georghiou Luca, a teacher from the Greek-Cypriot village of Mosphileri, which was found in the possession of a Turkish-Cypriot journalist, the missing persons were “executed” summarily in the Greek-Cypriot cemetery of Pyrgos village by armed Greek Cypriots named Mouzouri and Pari “on the instructions of the Headquarters” (the code-name of the then Minister of Interior, Polycarpos Georghadjis). Through the intermediary of the Turkish-Cypriot member of the CMP, the relatives submitted this additional information to the CMP in the hope of finding out what really happened to the missing persons.
According to the applicants, a number of requests were made to the CMP to conduct an effective investigation into the fate of the first applicant and his friend. However, there was no response to their requests and no hint of any effective investigation having been undertaken. The third applicant wrote to Amnesty International in London. He stated in his letter that all of their enquiries had so far borne no results and that the Greek-Cypriot Administration had persistently refused to investigate the matter. Amnesty International answered by saying that it appeared that while the CMP may have investigated quite a number of cases submitted to it, it has not been able to bring any of these investigations to a conclusion because the Committee members have been unable to come to an agreement about the Committee’s working methods.
The accidental discovery of human remains in 1996 in the Kato Pyrgos region raised a hope for the applicants. However, a scientific report drafted by an American company, following the study of a bone sample, concluded that the individuals whose remains had been found had lived between 1030 and 1240 AD.
On 2 March 2001 the Office of the Greek-Cypriot Member of the CMP sent the following letter to the CMP:
“I am referring to the human remains which were accidentally discovered four years ago in Kato Pyrgos. My letter dated 10.12.1999, as well as your letter dated 14.4.2000 on this issue, are hereby appended for any reference.
Further to a conversation you had with Mr Georgiades concerning recent developments on the matter, I wish to inform you that on two separate occasions, members of the team of the Physicians for Human Rights, assisted by our investigating officer and myself, searched the area for additional skeletal remains. All remains were subsequently taken to the laboratory of the Physicians for Human Rights in Cyprus for anthropological analysis, and for decent keeping.
Moreover, skeletal samples were sent to a laboratory in U.S. for specialised tests in order to ascertain the period that the remains were buried. The report of the laboratory concerning the remains is appended, as well as a letter by Dr W. Hagkund Director PHR Cyprus Project.
We would be most grateful if you could inform accordingly the Office of the Turkish Cypriot Member of the CMP of this development. We strongly suggest that the Turkish Cypriot family, which claimed in the press that the remains might belong to their missing father, should also be informed of the results of the scientific analysis by you too. We are at your entire disposal for any further information ...”.


ITEMID: 001-97343
LANGUAGEISOCODE: ENG
RESPONDENT: UKR
BRANCH: CHAMBER
DATE: 2010
DOCNAME: CASE OF GAVAZHUK v. UKRAINE
IMPORTANCE: 4
CONCLUSION: Violation of Art. 5-1-c
JUDGES: Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Mykhaylo Buromenskiy;Peer Lorenzen;Renate Jaeger
TEXT: 4. The applicant was born in 1971. He is currently serving a prison sentence at the Berdychiv Town Correctional Colony (Prison) No. 70, Zhytomyr Region (“the Berdychiv Colony”).
5. On 4 November 1998 the Deputy Prosecutor of Chernivtsi initiated criminal investigations into the murder of Mrs S.
6. On 30 July 1999 the applicant’s wife was arrested on suspicion of the murder of Mrs S. On 2 August 1999 she was released.
7. On 4 August 1999 the prosecutors placed Mr V. on the list of persons suspected of the crime. The investigations were suspended.
8. On 2 September 1999 the applicant was arrested following the issue of a warrant by the Head of the Investigation Unit of the Chernivtsi Town Prosecutor’s Office on suspicion of the murder of Mrs S., and the criminal investigations resumed. The applicant chose Mr Shelepa to defend him in the proceedings.
9. On 4 September 1999 the Chernivtsi Town Prosecutor remanded the applicant in custody in view of the pending criminal investigations against him. The applicant remained in detention throughout the proceedings.
10. On 7 September 1999 the applicant and Mr V. were charged with aggravated murder.
11. On 18 October 1999 the Chernivtsi Town Prosecutor extended the maximum period of the applicant’s pre-trial detention to three months.
12. On 23 November 1999 the investigations were completed and the applicant, together with his lawyer, was given access to the case file.
13. On 20 December 1999 the applicant and his lawyer completed their study of the case file.
14. On 28 January 2000 the prosecutors referred the case together with the indictment, containing charges of aggravated murder and theft, to the Chernivtsi Regional Court (“the Chernivsti Court”). The latter received the case file on 4 February 2000.
15. On 25 February 2000 the court remitted the case for additional investigation as it was incomplete. It also ordered the applicant to remain in detention. On 6 March 2000 the prosecutors received the case file.
16. On 9 March 2000 the prosecutors resumed the pre-trial investigations.
17. On 13 March 2000 the Chernivtsi Regional Prosecutor extended the maximum period of the applicant’s detention to five months on the ground that it was not possible to complete the investigation.
18. On 15 May 2000 the investigations were completed and the applicant, together with his lawyer, was given access to the case file. On 5 June 2000 the latter finished consulting the file.
19. On 22 June 2000 the prosecutors referred the case to the Chernivtsi Court.
20. On 30 June 2000 the court received the case file and on 19 September 2000 it remitted the case for additional investigation. The court refused to change the applicant’s preventive measure.
21. On 26 September 2000 the prosecutors received the case file.
22. On 10 October 2000 the Chernivtsi Regional Prosecutor extended the maximum period of the applicant’s detention to six months.
23. On 25 October 2000 the Deputy Prosecutor General of Ukraine extended the maximum period of the applicant’s detention to nine months.
24. On 28 November 2000 the investigations were completed and the applicant, together with his lawyer, was given access to the case file. On the same day they completed their study of the case file.
25. On 22 December 2000 the case was referred to the Chernivtsi Court.
26. On 12 January 2001 the Deputy Prosecutor of the Chernivtsi Region withdrew the case from the court and resumed the investigations.
27. On 18 January 2001 the applicant was informed that the investigations were complete and that he was charged with concealment of crime.
28. On 26 January 2001 the applicant and his lawyer were given access to the case file. On the same day they completed consulting the case file.
29. On 1 February 2001 the case was referred to the Chernivtsi Court.
30. On 5 February 2001 the court received the case file.
31. On 14 March 2001 the court remitted the case for additional investigation. The applicant was ordered to remain in detention.
32. On 19 March 2001 the prosecutors received the case file.
33. On 29 March 2001 the applicant was informed that the investigations were complete, and was given a copy of the indictment, in which he was charged with aggravated murder and robbery. Between 29 March and 2 April 2001 the applicant and his lawyer consulted the case file.
34. On 6 April 2001 the case was referred to the Chernivtsi Court. On 9 April 2001 the court received the case file.
35. On 17 April 2001 the prosecutors withdrew the case and resumed the investigations. On the same day they issued an indictment, containing the same charges and based on the same facts as the indictment of 29 March 2001.
36. On 16 May 2001 the applicant was informed that the investigations were complete and he was given a copy of the indictment of 17 April 2001. On the same day the applicant was provided with another lawyer, Mr B., whom the prosecutors gave access to the case file.
37. According to the applicant, he had agreed to have another lawyer, as the prosecutors told him that Mr Shelepa had not been able to participate in the proceedings due to his illness. From mid-April to 5 May 2001 Mr Shelepa was having medical treatment in a hospital in Kyiv. The latter was not informed that the investigations were complete on 16 May 2001.
38. On the same day the applicant and his new lawyer finished consulting the case file and on 18 May 2001 the case was referred to the Chernivtsi Court, the latter having received it on 24 May 2001.
39. On 29 May 2001 Mr Shelepa was again admitted to participate in the proceedings.
40. In the course of the investigations, in particular on 11 June and 28 November 2000, and 30 March 2001 the applicant’s lawyer made three requests to the prosecutors that the proceedings against the applicant be discontinued for absence of elements of a crime in his actions. The requests were dismissed as unfounded by the prosecutors’ decisions of 13 June and 30 November 2000 and 3 April 2001.
41. In the course of the trial, the applicant and his lawyer argued that some of the evidence submitted by the prosecutors had been collected after the expiry of the statutory terms of the investigation and the applicant’s detention and therefore should not be admitted by the court.
42. On 26 June 2001 the court found the applicant and Mr V. guilty of aggravated murder and sentenced the applicant to twelve years’ imprisonment. It rejected the applicant’s and his lawyer’s argument concerning the admissibility of evidence, holding in particular that the maximum statutory terms of the investigation and pre-trial detention envisaged by the Code of Criminal Procedure had not expired in the case, and that those terms had ceased to run during the periods when the applicant and his lawyer were studying the case file, when it had been referred to the court, and when the lawyer’s petitions had been considered by the prosecutors. The court, relying on Articles 120 and 156 of the same Code, also noted that the terms of the investigation and detention had actually been extended up to twelve months, as the case had been remitted for additional investigation on three occasions.
43. In his appeal in cassation, the applicant complained about the wrongful assessment of the facts and a violation of his procedural rights in the course of the investigation and trial.
44. On 25 September 2001 the Supreme Court rejected the applicant’s appeal in cassation as unsubstantiated.
45. The relevant provisions of the Constitution read as follows:
“Every person has the right to freedom and personal inviolability.
No one shall be arrested or held in detention other than pursuant to a substantiated court decision and only on the grounds and in accordance with the procedure established by law...”
“...13. The existing procedure for the arrest, custody and detention of persons suspected of committing an offence, and the procedure for carrying out an inspection and search of a person’s home and other property, shall be retained for five years after the entry into force of the present Constitution...”
46. The relevant provisions of the Code, as worded at the material time, read as follows:
“An investigator may arrest and question a person suspected of having committed a crime according to procedure envisaged by Articles 106, 106-1, and 107 of the Code.”
“Pre-trial investigation in criminal cases shall be completed within two months. The [running of this] term shall commence from the moment the criminal proceedings are initiated up to the moment when the case is referred to the prosecutor together with an indictment or a resolution concerning the referral of the case to the court for a decision concerning the application of the measures of compulsory medical treatment, or until the proceedings are suspended or discontinued. If it is impossible to complete the investigation, this term may be extended to up to three months by district, city prosecutor, military prosecutor of the army, fleet, military districts (commands), garrisons, and prosecutors of equal rank. The time it takes for the accused and his defence to familiarise themselves with the materials of the criminal case file shall not be included in the calculation of the term of pre-trial investigation.
In especially complicated cases the term of pre-trial investigation set by part 1 of this Article may be extended to up to six months by the Prosecutor of the Autonomous Republic of the Crimea, prosecutors of regions, the prosecutor of Kyiv, military prosecutors of the military district (command), navy and prosecutors of equal rank or their deputies on the basis of a reasoned resolution of the investigator.
Further extension of the term of pre-trial investigation may only be enacted by the Prosecutor General of Ukraine or by his deputies.
Where the case has been remitted for additional investigation, or if the discontinued proceedings have resumed, the term of additional investigation shall be established by the prosecutor who supervises the investigation, and shall not exceed one month from the moment when the investigation is resumed. Further extension of this term shall be enacted on general grounds.
The rules set in this Article shall not be applicable to criminal proceedings where the person having committed the crime has not been identified. The running of the term of investigation in such cases shall commence from the date on which the person who committed the crime is identified.”
“If there are sufficient grounds to consider that the accused, if at liberty, will abscond from the investigation or trial, or will obstruct the establishment of the truth in a criminal case or will pursue criminal activities, and if it is necessary to ensure the execution of a sentence, the investigator and prosecutor shall be entitled to impose on the accused one of the preventive measures envisaged by Article 149 of the Code...
In exceptional cases a preventive measure may be applied in respect of a person suspected of having committed a crime before the charges are brought against that person. In such a case the charges shall be brought [against the suspect] within ten days of the application of the preventive measure...”
“The preventive measures shall be as follows:
(1) a written undertaking not to abscond;
(2) personal surety;
(3) the surety of a non-governmental organisation or labour collective;
(3-1) bail;
(4) placement in custody;
(5) supervision by the command of a military unit.”
“Placement in custody as a preventive measure shall be applied in cases concerning criminal offences for which the law envisages a punishment of more than one year’s imprisonment. In exceptional circumstances this preventive measure may be applied in cases concerning criminal offences for which the law envisages a punishment of up to one year’s imprisonment...”
“Pre-trial detention during the investigation of criminal offences in criminal cases shall not last more than two months. This term may be extended to three months by district, city prosecutors, military prosecutors of the army, fleet, military districts (commands), garrisons, and prosecutors of equal rank, if it is not possible to complete the criminal investigation and there are no grounds for changing the preventive measure. Further extension of this term to six months from the moment of the arrest may only be enacted if the case is exceptionally complex by the Prosecutor of the Republic of the Crimea, prosecutors of regions, the prosecutor of Kyiv, military prosecutors of the military district (command), navy and prosecutors of equal rank.
The six-month term of pre-trial detention may be extended to one year by the Deputy Prosecutor General of Ukraine and to one year and a half by the General Prosecutor of Ukraine.
No further extension of the term of pre-trial detention is allowed; an accused held in detention must be immediately released.
If it is impossible to complete the investigation within the terms set by the law for pre-trial detention and there are no grounds for changing the preventive measure, the General Prosecutor of Ukraine or his Deputy shall have the power to approve the referral of the case to the court in the part relating to proven charges. The part of the case relating to criminal offences, the investigation of which has not been completed, shall be disjoined from the proceedings and completed in accordance with the general rules.
The accused and his defence shall be provided, not later than one month before the expiry of the term of pre-trial detention set by part 2 of the Article, with the materials of the part of the criminal case in respect of which the investigation has been completed, so that they can familiarise themselves with [those materials].
The time it takes for the accused and his defence to familiarise themselves with the materials of the criminal case shall not be taken into account in the calculation of the term of pre-trial detention.
If the court remits the case for a new investigation, and where the term of pre-trial detention has ended, and the preventive measure of pre-trial detention may not be changed, an extension, for up to one month following the receipt of the case, of the term of pre-trial detention shall be enacted by the prosecutor supervising investigation. Further extension of this term shall be enacted according to the procedure envisaged by paragraphs 1, 2 and 6 of the Article, taking into account the period the accused has been held in detention.”
“Pre-trial detention during pre-trial investigation shall not last more than two months.
When it is impossible to complete the investigation within the period provided for in part 1 of the Article and there are no grounds for discontinuing the preventive measure or substituting it with a less restrictive measure, [the term of pre-trial detention] may be extended:
(1) up to four months – upon a request approved by the prosecutor supervising the compliance with the laws by the bodies of inquiry and investigation, or at the same prosecutor’s [own request], by a judge of the court, which adopted a resolution on the application of the preventive measure;
(2) up to nine months – upon a request approved by the Deputy Prosecutor General of Ukraine, the Prosecutor of the Autonomous Republic of the Crimea, prosecutors of regions, prosecutors of Kyiv and Sevastopol, and prosecutors of equal rank, or at the same prosecutor’s [own request] in cases concerning serious and particularly serious crimes, by a judge of a court of appeal;
(3) up to eighteen months - upon a request approved by the Prosecutor General of Ukraine and his Deputy, or at the same prosecutor’s [own request] in particularly complex cases concerning particularly serious crimes, by a judge of the Supreme Court of Ukraine;
In each case, when it is impossible to complete the investigation within the terms specified in parts 1 or 2 of the Article and there are no grounds for changing the preventive measure, the prosecutor supervising the compliance with the law in the course of the investigation in the case shall have the right to approve the referral of the case to the court in the part relating to proven charges. In such an event, the part of the case relating to criminal offences or episodes of criminal activities, the investigation of which has not been completed, shall be disjoined from the proceedings pursuant to the requirements of Article 26 of the Code and completed in accordance with the general rules.
The term of pre-trial detention shall be calculated from the moment when the person was placed in custody, or, if his placement in custody was preceded by his arrest [within the meaning of Article 115 of the Code], from the moment of the arrest. The term of pre-trial detention shall include the time during which the person underwent in-patient expert examination at a psychiatric medical institution of any type. If the person is repeatedly placed in custody in the framework of the same proceedings ... or if new charges are brought against him, the time the person has spent in detention before this shall be taken into account when calculating the term of pre-trial detention.
The term of pre-trial detention shall end on the day the court receives the case file; however, the time it takes for the accused and his defence to familiarise themselves with the materials of the criminal case shall not be taken into account when calculating the term of pre-trial detention as a preventive measure. If the case is withdrawn by the prosecutor from the court pursuant to Article 232 of the Code, the running of the term shall resume from the day on which the prosecutor receives the case.
If the case is returned by the court to the prosecutor for additional investigation, the term of pre-trial detention shall be calculated from the moment the case is received by the prosecutor and shall not exceed two months. Further extension of that term shall be enacted in accordance with the procedure envisaged by part 2 of the Article and the time the accused was held in detention before the referral of the case to the court shall be taken into account.
If the term of pre-trial detention ... envisaged by parts 1 and 2 of the Article has ended and if this term was not extended in accordance with the procedure envisaged by the Code, the body of inquiry, investigator, or prosecutor shall immediately release the person from detention.
Governors of pre-trial detention centres shall immediately release from detention any accused in whose respect no court resolution extending the term of pre-trial detention has been received on the day of expiry of the terms of pre-trial detention envisaged by parts 1, 2, and 6 of the Article. They shall notify accordingly the person or authority before whom the case is pending and the prosecutor supervising the investigation.”
“Having found the collected evidence to be sufficient for formulating charges and having satisfied the requirements of Article 217 of the Code, the investigator shall notify the accursed of the completion of the investigation in his case and of his right to familiarise himself, personally or with the assistance of defence, with the materials of the case...
The accused and his defence shall not be limited in the time which they require to familiarise themselves with the materials of the case file. However, if the accused and his defence are obviously trying to delay the completion of the case, the investigator shall have the right to set, by a reasoned resolution, a certain time-limit for study of the case file. Such a resolution shall be approved by the prosecutor.”
47. The relevant extracts from the Reservation contained in the instrument of ratification deposited by Ukraine on 11 September 1997 (period covering 11 September 1997 – 28 June 2001) provide as follows:
“...2. The provisions of Article 5 § 1 of the Convention for the Protection of Human Rights and Fundamental Freedoms of 1950 shall apply in the part that does not contravene paragraph 13 of Chapter XV of the Transitional Provisions of the Constitution of Ukraine and Articles 106 and 157 of the Code of Criminal Procedure of Ukraine concerning the detention of a person and the issue of an arrest warrant by a public prosecutor.
Such reservations shall be in force until appropriate amendments to the Code of Criminal Procedure of Ukraine are introduced or until the adoption of the new Code of Criminal Procedure of Ukraine, but not later than 28 June 2001...
The provisions of Article 5 § 3 of the Convention for the Protection of Human Rights and Fundamental Freedoms of 1950 shall apply in the part that does not contravene Articles 48, 49, 50 and 51 of the Disciplinary Statute of the Armed Forces of Ukraine concerning the imposition of arrest as a disciplinary sanction.”
48. The relevant extracts from Article 106 of the Code of Criminal Procedure, the English translation of which was provided in the appendix to the reservation of Ukraine, read as follows:
“A body of inquiry shall be entitled to detain a person suspected of committing an offence for which a custodial penalty may be imposed, subject to the existence of one of the following grounds:
1. if the person is discovered whilst committing an offence or immediately after committing one;
2. if eyewitnesses, including victims, directly identify this person as the one who committed the offence;
3. if clear traces of the offence are found on the body of the suspect or on the clothing which he is wearing or which is kept at his home.
If there are other data which constitute grounds for suspecting the person of committing an offence, he may be detained only if he attempts to escape, or if he has no permanent place of residence, or if the identity of the suspect has not been established.
For each case of detention of a person suspected of committing an offence, the body of inquiry shall be required to draw up a record setting out the grounds, the reasons, the day, time, year and month, the place of detention, the explanation given by the person detained and the time when it was recorded that the suspect was informed of his right to have a meeting with defence counsel before being questioned for the first time, in accordance with the procedure provided for in Part 2 of Article 21 of the present Code. The body of inquiry shall also be required to notify the public prosecutor of the detention in writing within twenty-four hours and, at his request, give him the documents constituting the grounds for detention. The record of detention shall be signed by the person who drew it up and by the detained person. Within forty-eight hours of receipt of the notification of detention, the public prosecutor shall authorise the person detained to be taken into custody or order his release.
The body of inquiry shall inform the suspected person’s family of his detention if his place of residence is known.”
49. The relevant extracts from Article 157 of the Code of Criminal Procedure, which set out the specific duties of a public prosecutor when issuing a warrant for arrest, provide as follows:
“The public prosecutor shall issue a warrant for the arrest of a suspect or accused subject to the existence of the grounds prescribed by law. When deciding whether to issue a warrant for arrest the public prosecutor shall be required to study conscientiously all the relevant documents and, where necessary, question the suspect or accused personally. In the case of a suspect or accused who has not attained the age of majority, such questioning shall be mandatory.
The right to issue a warrant for the arrest of a person shall be vested in the Prosecutor General of Ukraine, the public prosecutors of the Republic of the Crimea, the regional prosecutors, the prosecutors of the cities of Kyiv and Sevastopol, and other equal-ranking prosecutors. The same right shall also be vested in the deputy public prosecutors of towns and districts with a population exceeding 150,000, unless otherwise stipulated in a special order of the Prosecutor General of Ukraine.”
VIOLATED_ARTICLES: 5
VIOLATED_PARAGRAPHS: 5-1
VIOLATED_BULLETPOINTS: 5-1-c


ITEMID: 001-61539
LANGUAGEISOCODE: ENG
RESPONDENT: BGR
BRANCH: CHAMBER
DATE: 2003
DOCNAME: CASE OF YANKOV v. BULGARIA
IMPORTANCE: 1
CONCLUSION: Violation of Art. 3;Violation of Art. 10;Violation of Art. 13;Violation of Art. 5-3;Violation of Art. 5-4;Violation of Art. 5-5;Violation of Art. 6-1;Non-pecuniary damage - financial award;Costs and expenses partial award
JUDGES: Christos Rozakis
TEXT: 9. The applicant, Mr Todor Antimov Yankov, is a Bulgarian national who was born in 1943 and lives in Plovdiv.
10. The applicant was the executive director of an agricultural investment fund and a financial company. He also used to teach economics, an area in which he has a doctorate.
11. On 11 March 1996 a preliminary investigation (no. 300/96) was opened by the Plovdiv District Public Prosecutor against him and other persons in respect of a number of financial transactions. The applicant was charged under Article 282 §§ 2 and 3 of the Criminal Code of dereliction of his professional duties with a view to obtaining an unlawful gain for himself and others.
12. In the course of the investigation the charges were altered several times. In all, eight persons were charged.
13. During the investigation, which lasted one year and nearly two months, the investigator heard 47 witnesses, examined numerous financial and banking documents, commissioned reports, and undertook searches.
14. On 5 May 1997 the preliminary investigation was completed and the file was transmitted to the competent prosecutor.
15. On 1 July 1997 the prosecutor submitted a 32-page indictment to the Plovdiv District Court, accompanied by 20 binders of documents.
16. The first hearing took place from 17 to 30 September 1997. The District Court heard the accused persons, several witnesses and experts. Some witnesses did not appear. Both the prosecution and the defence requested an adjournment.
17. The trial resumed on 25 November 1997. The District Court heard several witnesses. Ten other witnesses had not been summoned properly and others, although summoned, did not appear. The trial was adjourned until 7 January 1998.
18. On 1 December 1997 the court, sitting in private, granted a request by one of the accused persons for additional questions to be put to the experts. The experts submitted their report on 5 January 1998.
19. The trial resumed on 7 and 8 January 1998. The court adjourned the hearing as some witnesses had not appeared and ordered an additional financial report.
20. The hearing scheduled for 9 April 1998 was put off until 6 July 1998 and then until 19 October 1998 due to the applicant's ill health.
21. On 19 October 1998 the District Court held its last hearing. It heard the final pleadings of the parties.
22. On 30 October 1998 the Plovdiv District Court found the applicant guilty of ordering money transfers abroad in breach of the relevant financial regulations. The transfers had been ordered without proof of a lawful purpose and on behalf of clients of the applicant's financial company whom he had not fully identified. The applicant was also found guilty of issuing a power of attorney conferring wide-ranging powers to another person in breach of his duties as the manager of the financial company. The applicant was acquitted on the remainder of the charges against him and sentenced to five years' imprisonment.
23. The reasoning of the District Court's judgment was served on the applicant on an unspecified date in February 1999.
24. Several times during the proceedings the case file was unavailable as it was repeatedly transmitted to the competent court for examination of appeals by the applicant and his co-accused against their pre-trial detention. In practice, whenever such an appeal was lodged, the case file was transmitted together with the appeal.
25. Throughout the proceedings the District Court and, later, the Regional Court (see below) had to seek police assistance to establish the addresses of witnesses and bring them before the court.
26. On 19 November 1998 the applicant appealed against his conviction and sentence.
27. On 6 December 1999 the Plovdiv Regional Court held its first hearing, which was adjourned to 13 March 2000, as one of the co-appellants had health problems.
28. On 5 June 2000 the Regional Court quashed the applicant's conviction and sentence and remitted the case to the preliminary investigation stage.
29. The Regional Public Prosecutor's Office in Plovdiv, considering that the Regional Court's judgment was unclear or erroneous, sought to appeal against it or request its interpretation. There ensued a dispute about the relevant time-limit, a question submitted by the prosecution authorities to the Supreme Court of Cassation. On 27 November 2000 that court dismissed the prosecution's request.
30. Nothing was done in the case thereafter, at least until November 2002, the time of the latest information from the parties. The preliminary investigation in the applicant's case was still pending before the prosecution authorities in Plovdiv.
31. On 12 March 1996 the applicant was arrested and detained pending trial in connection with investigation no. 300/96 by decision of an investigator, confirmed by a prosecutor.
32. On 18 March 1996 the applicant appealed against his pre-trial detention to the Plovdiv Regional Public Prosecutor. He alleged, inter alia, that the acts on account of which he had been charged did not constitute a criminal offence (under the banking and currency regulations in force at the relevant time) and that he had therefore been charged unlawfully. He also alleged that there had been no danger of his absconding or committing further offences. On 27 March 1996 the appeal was dismissed by the Regional Public Prosecutor who stated, inter alia:
“Since Yankov has been charged under Article 282 § 2 of the Criminal Code, pre-trial detention is mandatory in accordance with Article 152 § 1 of the Code of Criminal Procedure. The possibility of not imposing pre-trial detention is to be considered by the preliminary investigation bodies only if, regard being had to the nature of the case and the particular circumstances relating to the accused, there is no danger that he might abscond, commit further offences, or obstruct the course of justice.
The material in the case indicates that if Yankov is released, there is a danger that he might abscond, commit further offences or obstruct the course of justice... The preliminary investigation bodies are not under any obligation to set out the facts on the basis of which the above conclusions have been made.”
33. On 18 April 1996 the applicant requested the District Court to order his release on the ground that the charges laid against him did not contain particulars of the alleged offence and that the provisions invoked were inapplicable as he was not an employee or an officer of the bank whose funds were at stake. The parties have not provided further information on the examination of this appeal.
34. On 29 April 1996 a prosecutor from the Chief Public Prosecutor's Office upheld the Regional Public Prosecutor's decision of 27 March 1996 while adding that the danger of absconding, committing offences or obstructing the course of justice stemmed from the fact that the applicant had financial and other relations with persons who had left the country. The arguments of the applicant, based on an analysis of the relevant banking and currency regulations, that he had not committed a crime, were to be assessed only by the investigator and then in the process of examination of the criminal case on the merits.
35. On 11 September 1996 a further appeal was dismissed by a higher ranking prosecutor at the Chief Public Prosecutor's Office on the ground that, as the preliminary investigation was still pending, there was a risk that the applicant would seek to obstruct the course of justice. Furthermore, arguments going to the substance of the charges could only be examined once the necessary evidence had been collected.
36. On 12 September 1996 the applicant submitted to the District Prosecutor's Office another request for release. He stated, inter alia, that he had been detained for a long period and that all the relevant evidence had been collected.
37. On 15 November 1996 the applicant asked to be examined by doctors as his health was deteriorating because of the long period of detention.
38. On 12 December 1996 the applicant lodged further applications for release with the District and Chief Public Prosecutors.
39. On 13 December 1996 the District Public Prosecutor dismissed the applications noting, inter alia, that the applicant had been charged with a serious intentional offence and that another preliminary investigation was also pending against him. This was investigation no. 929/96 which had been opened on an unspecified date in 1996 and was being dealt with by the authorities in separate criminal proceedings.
40. On 28 December 1996 the applicant complained to the Regional Public Prosecutor that his pre-trial detention was unlawful.
41. This complaint was dismissed on 30 January 1997 on the ground that under paragraph 3 of Article 152 of the Code of Criminal Procedure release was not possible since a second preliminary investigation (no. 929/96) was pending against the applicant. The detention of the accused person was thus mandatory. Moreover, the investigation in the case under examination, no. 300/96, was progressing and was soon to be completed.
42. On 13 February 1997 the applicant complained against his pre-trial detention to the District Court, on the ground that the statutory maximum period for the investigation had been exceeded and that, the accusation being based on documents already examined, there was no danger of him tampering with evidence. In addition, although he had been questioned on several occasions prior to his arrest, he had never attempted to abscond.
43. The application was submitted to the District Prosecutor's Office which, according to the established practice, had to transmit it to the District Court together with the case file. On 25 February 1997, when the applicant's lawyer complained to the District Prosecutor's Office, his appeal had not yet been transmitted to the court.
44. On an unspecified date the applicant complained to the prosecution authorities that his pre-trial detention ordered in connection with preliminary investigation no. 929/96, the second investigation pending against him, had been unlawful. On 11 March 1997 the Regional Public Prosecutor examined the above appeal and decided to terminate the applicant's pre-trial detention in connection with investigation file no. 929/96, as the applicant was detained pending trial in connection with the preliminary investigation no. 300/96.
45. The applicant's pre-trial detention ordered in connection with preliminary investigation no. 300/96 was extended by the District Public Prosecutor on 23 April 1997.
46. On 24 and 26 March 1997 the applicant's lawyer reiterated his request for a medical examination of his client. He stated that upon his visit on 21 March 1997 he had found the applicant in an apparently bad state of health. It appears that a medical examination was carried out on an unspecified date in the following weeks.
47. On 23 April 1997 the District Prosecutor refused to release the applicant. She took into consideration the medical report, which apparently concluded that the applicant suffered from high blood pressure, arterio-sclerosis, a kidney stone, diabetes, problems with his lungs and the prostate, problems with the blood vessels and depression. The prosecutor noted, after examining the treatment prescribed by the doctor, that the applicant could be treated in a pre-trial detention facility with a moderate risk for his health and that his state of health should be carefully followed. She also emphasised that the applicant had been charged with a serious offence which in her opinion made his release impossible.
48. On 1 July 1997 the applicant was committed for trial. On 23 July 1997 he appealed against his pre-trial detention to the District Court on the ground that the charges against him were weak. He further claimed that his detention had become unnecessary as all the evidence had been collected. He reiterated that he had a family and a permanent address, that he was a respected citizen, and that there had never been convincing evidence of a danger of absconding, committing offences or obstructing the course of justice. He further complained about his bad health and enclosed medical reports of 10 January and 19 and 27 June 1997. The applicant's lawyer also invoked the Convention and asked the court to give reasoned replies to each of his arguments.
49. After examining the applicant's case in private, the District Court dismissed the application for release on 28 July 1997. The court stated:
“The defendant Todor Antimov Yankov is indicted under section 282 § 3 of the Criminal Code with an aggravated case of dereliction of his professional duties. In accordance with Article 152 § 1 of the Code of Criminal Procedure pre-trial detention must be imposed when a person is accused of having committed a serious intentional offence. In the case of the defendant Todor Yankov, he is suspected of having committed a serious intentional offence. The grounds for the exception provided for under paragraph 2 [of Article 152] [allowing a detainee to be released from pre-trial detention] are not present in the [applicant's] case, since there exists a real danger of his obstructing the course of the proceedings or absconding. In addition, according to Article 152 § 3 of the Code of Criminal Procedure, the exception laid down in its § 2 cannot avail a defendant in a case where preliminary investigations for another criminal offence are pending against him. It is apparent from the documents in the case that the Plovdiv Dictrict Public Prosecutor's Office had separated and transmitted to the Sofia Regional Public Prosecution material in relation to another offence. Therefore, there is no valid ground for the applicant's release.”
50. On 29 July 1997 the applicant appealed to the Regional Court. On 30 July 1997, before transmitting the appeal, the District Court sitting in private confirmed its refusal to release the applicant. On 4 August 1997 the file was transmitted to the Regional Court. On 11 August 1997 the Plovdiv Regional Court sitting in private dismissed the applicant's appeal on the same grounds. After examining the medical report, that court held that the conditions of detention were not damaging for his health.
51. At the first trial hearing before the Plovdiv District Court on 17 September 1997 the applicant appealed against his detention. The appeal was dismissed on the ground that the applicant had been charged with a serious intentional offence for which detention was mandatory and that the exception provided by Article 152 § 2 of the Code of Criminal Procedure could not avail a defendant in a case where preliminary investigations for another criminal offence were pending against him.
52. On 25 November 1997, at the second hearing before the Plovdiv District Court, the applicant appealed against his detention on the ground that he could not obstruct the course of justice, as all the evidence and relevant testimony had already been examined by the court. He also stated that there was no danger of his absconding in view of his social status and family ties. The court dismissed his appeal on the same day, reasoning that the applicant had been charged with a serious intentional crime and that there were no new circumstances. On 1 December 1997 the applicant appealed to the Regional Court. On 15 December 1997 that appeal was dismissed by the Regional Court sitting in private on grounds that the applicant had been charged with a serious intentional crime and hence that his continued detention was justified, especially in view of the gravity of the alleged offence.
53. The applicant's renewed application for bail, in which he pleaded, inter alia, that there was no danger of him absconding, regard being had to his age, was dismissed by the District Court at its hearing on 8 January 1998 as he had been charged with a serious intentional crime and there was another case pending against him.
54. On 13 January 1998 the applicant appealed to the Regional Court. Before transmitting that appeal, on 14 January 1998 the District Court sitting in private re-examined and confirmed its refusal to release the applicant. On 19 January 1998 the Regional Court sitting in private dismissed the appeal.
55. On 9 February 1998 the applicant's lawyer requested a medical examination for the applicant as his health had deteriorated and he had to spend four days in hospital. On 27 February 1998 the applicant was examined by a doctor who recommended that he should be sent to a hospital specialising in cardiology and that he should undergo specialised medical treatment.
56. On 9 March 1998 the applicant requested his release on the basis of that medical report. He further complained that there was no evidence of any danger that he might abscond or commit further offences.
57. Between 10 and 17 March 1998 the applicant was detained in a disciplinary isolation cell (see below).
58. On 19 March 1998 the District Court examined the appeal of 9 March 1998 in the presence of the applicant. The court dismissed it holding that the health risk for the applicant was the same whether he was in prison or at home. On 24 March 1998 the applicant appealed to the Regional Court. On 25 March 1998, before transmitting the appeal, the District Court sitting in private re-examined the matter and confirmed its refusal to release the applicant. The appeal was dismissed on 30 March 1998 by the Regional Court sitting in private. It found that there had been no change of circumstances or facts capable of demonstrating that the applicant would not commit offences, obstruct the course of justice or abscond if released.
59. In the meantime, on 20 March 1998, the applicant was again examined by three doctors who found that he was suffering from thrombosis which might endanger his life and recommended rest and regular check-ups by a specialist. On 25 March 1998 the applicant was taken in hospital.
60. On 9 April 1998 the applicant submitted a renewed bail application mainly on the ground of his ill health. It was dismissed on 23 April 1998 by the District Court at a hearing at which the court heard evidence from three doctors and found that the applicant's health was adequately monitored and that he received medical treatment.
61. On 29 April 1998 the applicant appealed to the Regional Court. On 30 April 1998, before transmitting the appeal, the District Court sitting in private confirmed its refusal to release the applicant. The appeal was dismissed on 11 May 1998 by the Regional Court sitting in private. It held that there were no objective circumstances which could warrant the conclusion that the applicant would not interfere with the investigation. The court further found that “the length of the detention could not serve as an argument for a deviation from the strict provisions of Article 152 of the Code of Criminal Procedure” and that the applicant's medical problems could be adequately addressed by his transfer to Sofia Prison, where the medical service was presumably better. On 19 May 1998 the applicant was transferred to Sofia Prison.
62. On 30 June 1998 the applicant was admitted to hospital.
63. On 6 July 1998 the applicant asked again to be released on bail, pleading his ill health and the excessive length of his detention.
64. On 9 July 1998 the District Court held a hearing and decided to release the applicant on bail on health grounds. The applicant lodged a security and was released on 10 July 1998.
65. On 10 March 1998, during a search of the applicant before a meeting with his lawyers, the prison administration seized typewritten material. According to the applicant, it was the draft of a book he had been writing, describing events concerning his detention and the criminal proceedings against him. He had intended to read some passages to his lawyers. According to the prison officer who seized the material, the applicant had intended to transmit it to his lawyer.
66. The Government submitted several pages of the seized material. It transpires that the manuscript was in a rough form and was not ready for publication. Relevant passages read as follows:
“The charges against me did not contain any facts or evidence indicating any criminal intention on my part or an offence committed by me... I can only regard the acts of the authorities against me as unjustified and unlawful...
The ... door clicked ... we stood up, hands behind our backs and backs to the warders: they are afraid that we might attack them, with our plastic cups... I never understood why these well-fed idlers were afraid, always two or three of them being present when the food was distributed... I used to eat only two to three crusts of bread and as many spoonfuls of the slops they called soup. We used to hear how they diluted the soup ... How painful were these moments - to see the eyes of a hungry fellow prisoner ... to see how human beings are turned into beasts... It is true that the economic situation in Bulgaria was difficult... But giving so little and such bad food to detained people was inhuman ..., even more so when we smelt the aroma of roasted or fried meat coming from the warders' quarters. This is sadism...
It was very difficult when they prohibited meetings with relatives and friends. That was not done everywhere: in Plovdiv magistrates had decided to break a record for the inhuman treatment of detainees...
[In the beginning] I did not know and never suspected what the investigative and judicial organs of democratic Bulgaria were like. For a long time I hoped that there had been a misunderstanding...
The search [in the apartment] was conducted by police officer [B.] His inexperience was betrayed by his behaviour; he was a provincial parvenu...
Could I imagine, when I worked 15-16 hours per day ... that the time would come when everything that I had done ... would be rejected ... by several powerful unscrupulous people, 'servants of law and order' ?
Toilet time is 1.5 - 2 minutes ... If someone stays longer, there follow shouting, cursing, clattering on the door, truncheon blows... You can't believe that? Well, I did not believe either that such conditions of life could exist in this country ...
The warders, most of whom are simple villagers and are paid ... better than teachers, doctors and engineers, 'work' 24 hours and then have a 72-hour rest ...They are the authority in prison, they are everything, we depend on them. It is true that there are younger and more intelligent boys, but they are a minority...
Whenever we complained about all these disgraceful matters, there was no effect ... Twice there were inspections ...., all the officers were running here and there, it was necessary to clean, to put the detention centre in a better shape; they were afraid of complaints by prisoners. But the inspectors came, made a formalistic visit and went away.”
67. On 10 March 1998, after having heard the applicant and the prison officers involved, the Governor of Plovdiv Prison issued order no. 99 which read as follows:
“In accordance with section 76(k) of the Execution of Sentences Act, the detainee Todor Yankov shall be punished by seven days' confinement in an isolation cell ... for having made offensive and defamatory statements against officers, investigators, judges, prosecutors and state institutions.”
68. Order no. 99 was not served on the applicant. It was enforced immediately, on 10 March 1998.
69. It appears that before his transfer to the disciplinary isolation cell the applicant was examined by a doctor.
70. Also before being brought to the cell his hair was shaved off.
71. According to the applicant, the solitary-confinement facility had no toilet and he had to use a bucket which was not emptied regularly. Hygiene was poor and there was insufficient light.
72. On an unspecified date the applicant's lawyers, having learned about the punishment, telephoned the General Director of Prisons and Detention Facilities, in whom appropriate powers are vested to examine appeals against confinement in an isolation cell.
73. On 17 March 1998 the applicant left the isolation cell.
74. On 19 March 1998 he appeared at an open hearing of the District Court. The fact that his head had been shaved nine days earlier was noticeable.
75. On 20 March 1998 the applicant's lawyers complained against the prison governor to the Deputy Minister of Justice. They conveyed, inter alia, the applicant's concern that the prison governor had repeatedly demonstrated personal hostility towards him and had acted unlawfully.
76. On 29 April 1998 the Deputy Minister of Justice replied to the applicant's lawyers. She stated, inter alia:
“An inquiry was conducted in connection with your appeal against the allegedly unlawful acts of the [prison governor]... By an order N/ 99 of 10 March 1998 ... the accused Yankov was condemned to seven days' confinement in an isolation cell. This disciplinary measure was imposed because the papers seized contained expressions and descriptions which were offensive for the Ministry of the Interior's employees, the investigation bodies, the judiciary, the prosecution, the prison authorities and state bodies and institutions (section 46 of the Regulations). He was not punished because he had written the paper in question and wanted to take it out from the prison, which is, indeed, his right. That paper was given back to the accused Yankov.
The accused suffers from a chronic disease - thrombophlebitis. He has been constantly supervised and treated in the prison. He was twice sent for outside treatment and he will be sent again for outside treatment if the need arises”.
77. Article 282 § 1 provides
“A person [exercising the function of managing another person's property or an official function], who acts in breach or dereliction of his professional duties, or exceeds his power or rights with a view to obtaining a material gain for himself or others or inflicting damage on others, and thus causes harm or substantial damage, shall be punished with up to five years' imprisonment...”
78. The third paragraph of Article 282, read in conjunction with the first and the second paragraphs of the same provision, provides for a punishment of three to ten years' imprisonment in very serious cases if the resulting damage is very substantial or the offender holds a high-ranking post.
79. At the relevant time and until the reform of 1 January 2000 an arrested person was brought before an investigator who decided whether or not the accused should be remanded in custody. The investigator's decision was subject to approval by a prosecutor. The role of investigators and prosecutors under Bulgarian law has been summarised in paragraphs 25-29 of the Court's Nikolova v. Bulgaria judgment ([GC], no. 31195/96, ECHR 1999-II).
80. At the relevant time paragraphs 1 and 2 of Article 152 read:
“(1) Detention on remand shall be imposed [in cases where the charges concern] a serious intentional offence.
(2) In the cases falling under paragraph 1 [detention on remand] shall not be mandatory if there is no danger of the accused evading justice, obstructing the investigation, or committing further offences.”
81. According to Article 93 § 7 of the Penal Code a “serious” offence is one punishable by more than five years' imprisonment.
82. According to the Supreme Court's practice at the relevant time (it has now become at least partly obsolete as a result of the amendments in force since 1 January 2000) Article 152 § 1 required that a person charged with a serious intentional offence had to be detained on remand. An exception was only possible, in accordance with Article 152 § 2, where it was clear beyond doubt that any danger of absconding or re-offending was objectively excluded as, for example, in the case of an accused who was seriously ill, elderly, or already detained on other grounds, such as serving a sentence (Dec. 1 of 4.5.1992 in case no. 1/92, Bulletin 1992/93, p. 172; Dec. no. 4 of 21.2.1995 in case no. 76/95; Dec. no. 78 of 6.11.1995 in case no. 768/95; Dec. no. 24 in case no. 268/95, Bulletin 1995, p. 149).
83. Paragraph 3 of Article 152, as in force until August 1997, provided that remand in custody was mandatory without exception where other criminal proceedings for a publicly prosecutable crime were pending against the accused person, or where he was a recidivist.
84. On 21 March 1997 the Supreme Court of Cassation examined a request by the Chief Public Prosecutor for an interpretative decision on Article 152 of the Code of Criminal Procedure. The Supreme Court of Cassation considered that Article 152 § 3 of the Code was incompatible with the Constitution, the Convention and the International Covenant on Civil and Political Rights. It therefore decided to submit the matter to the Constitutional Court which is competent to rule on the compatibility of legislation with the Constitution and international treaties. Ultimately, the Constitutional Court did not decide the point, as the impugned provision was repealed with effect from 11 August 1997.
85. At the relevant time the Supreme Court considered that it was not open to the courts, when examining an appeal against pre-trial detention, to inquire whether there existed sufficient evidence to support the charges against the detainee. Their task was only to examine the lawfulness of the detention order (Dec. no. 24 of 23.5.1995 in case no. 268/95, Bulletin 1995, p. 149).
86. According to the general rules laid down in Articles 39 and 40 of the Code of Criminal Procedure and the existing practice, the detainee's applications for release at the trial stage of the criminal proceedings are examined by the trial court, in private or at an oral hearing.
87. The trial court's decision is subject to appeal in the court above (Article 344 § 3). The appeal must be lodged within seven days (Article 345) with the trial court (Article 348 § 4 in conjunction with Article 318 § 2). According to Article 347, after receiving the appeal, the trial court, sitting in private, must decide whether there exist grounds to annul or vary its decision. If it does not find a reason to do so the trial court transmits the appeal to the court above.
88. Article 348 provides that the appellate court may examine the appeal in private or, if it considers it necessary, at an oral hearing.
89. According to section 76(k) of the Act a prisoner who has committed a disciplinary offence may be punished by, inter alia, confinement in an isolation cell for up to 14 days.
90. Rule 46 of the regulations provides that when a prisoner's writings and appeals contain denigrating and offensive language he may be subject to disciplinary and criminal punishment.
91. At the relevant time, according to Rules 43(2) and 98, a prisoner punished by confinement in an isolation cell could appeal to the General Director of Prisons and Detention Facilities through the prison's governor. All appeals had to be transmitted by the prison authorities within 24 hours, together with the governor's comments. The General Director was required to reply within three days. Filing an appeal did not suspend the execution of the punishment.
92. In 2002 the new section 78b of the Act introduced the possibility of a judicial appeal against disciplinary confinement in an isolation cell.
93. Section 2(1) provides:
“The State shall be liable for damage caused to [private persons] by the organs of ... the investigation, the prosecution, the courts ... for:
1. unlawful pre-trial detention ... , if [the detention order] has been set aside for lack of lawful grounds...”
94. The reported case-law under section 2(1) of the Act is scant. In two recent judgments the Supreme Court of Cassation held that pre-trial detention orders must be considered as being “set aside for lack of lawful grounds” - and State liability arises - where the criminal proceedings were terminated on grounds that the charges were not proven (Decision no. 859, 10 September 2001, case no. 2017/00) or where the accused was acquitted (Decision no. 978, 10 July 2001, case no. 1036/01). The view taken appears to be that in such cases the pre-trial detention order is retrospectively deprived of its lawful grounds as the charges were unfounded.
95. On the other hand, the Government have not informed the Court of any successful claim under section 2(1) of the Act in respect of unlawful pre-trial detention orders in connection with pending criminal proceedings or proceedings which have ended with final convictions. It appears that rulings putting an end to pre-trial detention in pending criminal proceedings have never been considered as decisions to “set aside for lack of lawful grounds” within the meaning of section 2(1) of the Act. Also, the terms “unlawful” and “lack of lawful grounds” apparently refer to unlawfulness under domestic law.
96. Under section 2(2) of the Act, in certain circumstances a claim may be brought for damage occasioned by “unlawful bringing of criminal charges”. Such a claim may be brought only where the accused person was acquitted by a court or the criminal proceedings were discontinued by a court or by the prosecution authorities on grounds that the accused person was not the perpetrator, that the facts did not constitute a criminal offence or that the criminal proceedings were instituted after the expiry of the relevant limitation period or despite a relevant amnesty. In contrast with the solution adopted under section 2(1) (see paragraph 94 above), the Supreme Court of Cassation has held that no liability under section 2(2) arises where the criminal proceedings were discontinued at the pre-trial stage on grounds that the accusation was not proven (Decision No. 1085, 26 July 2001, case no. 2263/00, Supreme Court of Cassation-IV).
97. Persons seeking redress for damage occasioned by decisions of the investigating and prosecuting authorities or the courts in circumstances falling within the scope of the State Responsibility for Damage Act have no claim under general tort law as the Act is a lex specialis and excludes the application of the general regime (section 8 § 1 of the Act; Dec. No. 1370, 16.12.1992, civil case no. 1181/92 г., Supreme Court-IV). The Government have not referred to any successful claim under general tort law in connection with unlawful pre-trial detention.
98. In their report on the visit to the former Yugoslav Republic of Macedonia in 1998, published on 11 October 2001, the CPT noted:
“...[T]he CPT wishes to draw attention to ... practices observed by its delegation...[in one prison]. The first was the shaving of the heads of newly-arrived residents and of those who had been returned to the institution after escapes. Senior staff at that establishment accepted that such a procedure has no medical justification and could be considered degrading...
The CPT recommends that the authorities of “the former Yugoslav Republic of Macedonia” put an end to these practices.”
VIOLATED_ARTICLES: 10
13
3
5
6
VIOLATED_PARAGRAPHS: 5-3
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5-5
6-1