ITEMID: 001-107548
LANGUAGEISOCODE: ENG
RESPONDENT: MLT
BRANCH: CHAMBER
DATE: 2011
DOCNAME: CASE OF CURMI v. MALTA
IMPORTANCE: 3
CONCLUSION: Violation of Art. 6-1;Violation of P1-1;Remainder inadmissible;Pecuniary damage - reserved;Non-pecuniary damage - reserved
JUDGES: David Scicluna;George Nicolaou;Ledi Bianku;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä;Zdravka Kalaydjieva
TEXT: 6. The applicant was born in 1922 and lives on the Isle of Man.
7. The applicant owned an area of land in Marsaxlokk, Malta, measuring approximately 13,557 sq. m.
8. On 18 March 1988, by means of a President’s declaration made by virtue of Article 3 of the Land Acquisition (Public Purposes) Ordinance, it was declared that the land was required for a public purpose and was thereby being expropriated. According to the Government the site was to be protected as a nature reserve.
9. Following the issue of the relevant permit dated 10 August 1998, in 1999 the boundary of the plot was fenced with a chain-link fence, but no other use has ever been made of the property to date. According to an architect’s report submitted by the applicant the site had been abandoned and allowed to deteriorate. It was completely neglected and not looked after in any way. In consequence the land had been vandalised and the watercourses on the land contaminated by leakages from a nearby pig farm. According to the applicant the land had become a dumping site. The Government contested the veracity of this allegation.
10. The said fencing incorporated an area of land which was effectively larger than that covered by the declaration. In consequence, in relation to this additional land (hereinafter Land B for ease of reference) measuring 362.5 sq. m the applicant claimed that there had been a de facto expropriation which was not in accordance with the law.
11. The entirety of the land was part of the Marsaxlokk Bay Local Plan 1995, which recognised the site as a salt marsh of ecological importance. Nevertheless, the Malta Environment and Planning Authority’s policies authorise development in the area subject to specific conditions.
12. The applicant contended that although the site was declared a Special Conservation Zone in 2005, in 1998 when it was taken there existed no public purpose. In the meantime she was prevented from developing the land in accordance with the relevant policies, since any permit requests she made were refused on the basis of the supposed expropriation.
13. To date, the Commissioner of Lands had not issued a “notice to treat” and the applicant had not received any compensation for the taking of her land.
14. The applicant’s judicial protest of 11 January 2005 requesting the Government to dispossess itself of certain adjoining lands (including Land B) which she claimed had been expropriated illegally, and to pay compensation, was unsuccessful.
15. In 2005 the applicant instituted proceedings before the Civil Court (First Hall) in its constitutional jurisdiction, complaining of a breach of her rights as guaranteed by Article 1 of Protocol No. 1 to the Convention and Article 6. She claimed that no use had been made of the expropriated land, that the taking could not be considered proportionate and that she had not obtained any compensation. Moreover, the delay in initiating compensation proceedings denied her the right of access to court. She further noted that certain adjoining lands were also her property and that notwithstanding her judicial protest of 11 January 2005, which she attached to her application (Rikors promotorju), the State had not taken the desired action.
16. On 4 February 2009 the Civil Court rejected the applicant’s claims. It held that there was no doubt that the land in question was saline marshland that had great ecological importance in Malta. Therefore, its taking for the preservation of a natural reserve had been legitimate and in the public interest. As to Article 6 it held that the applicant could have instituted ordinary proceedings to oblige the Commissioner of Lands to institute proceedings before the Land Arbitration Board (“LAB”) or could have made a request for the relevant Government department to appoint a lawyer to establish the origin of the land. However, she had not taken up any of these procedures.
17. The applicant appealed on the grounds that the public interest upheld by the court was an objective one. However, the Government had failed in the circumstances of the present case to demonstrate how and whether the protection of the said reserve would occur. Moreover, the public interest had to be established at the time of the taking and must persist. However, in the present case the site was declared a Special Conservation Zone only in 2005, seventeen years after the taking and it surely did not persist in view of the state of the land to date. Furthermore, as was clear from the testimony before the first-instance court, the fencing had taken over more land than was covered by the President’s declaration. Thus, as had been argued in the applicant’s submissions, the court should have ordered its release and upheld a violation in the terms explained in her original application (“rikors promotur”).
18. On 26 June 2009, the Constitutional Court found that the applicant’s property rights had not been violated but that there had been a breach of Article 6 in so far as the failure of the Commissioner of Lands to issue a “notice to treat” amounted to a lack of access to court. It awarded the applicant 2,000 euros (EUR) in respect of non-pecuniary damage.
19. The Constitutional Court reiterated that the public interest should persist from the moment of taking the land to the moment when the Government obtained ownership of the land on conclusion of the expropriation procedure. It considered the evidence produced, in particular the witness testimony of the Commissioner of Lands, stating that the Environment Protection Department had requested that such land be expropriated; Departmental correspondence related to the use of the land evidencing that because fencing had been built the property should not be released, whereas it would have been otherwise had nothing been done on site; photographs of the state of the land when it was being taken care of by the applicant’s ancestors; and the witness testimony of an employee at the MEPA who classified the land as saline marshland (Mediterranean sea meadows) hosting rare and healthy flora and fauna communities. He further stated that the land was in a good state although the man in the street might deem otherwise due to the appearance of salt marshes and that the department had added certain species to the site in order to avoid erosion and had carried out engineering works to improve the state of the pools therein. In this light, and having considered subsequent structural plans and assessments confirming the necessity of protecting the biodiverse site, the court held that the taking of the land had been in the public interest, which persisted, notwithstanding that no construction had taken place. It was in fact the aim of the taking of the land to leave the site in its original state, a state which could not have been guaranteed if it had been left in the hands of private individuals.
20. In respect of Land B of the land, while noting that the Commissioner of Lands did not contest the allegation and was willing to give the relevant portion back to the applicant, the court found that the applicant had not made any request in this respect in her application (“rikors”) to the court. It noted that the court had to decide on the case as presented in the application which fixed the parameters of a case at issue. Indeed in the present case no request for rectification of the application had been made in order to include this complaint. The court therefore rejected this ground of appeal.
21. Under Article 6 it held that the applicant, who became aware of the expropriation in 1999, had not solicited the action of the authorities. Nevertheless, it was unacceptable that the Commissioner of Lands, who had the duty to take action, had, in twenty years, failed to pay compensation, or at least to make an offer of such. In consequence this amounted to a violation of Article 6 for lack of access to court.
22. The Land Acquisition (Public Purposes) Ordinance (Chapter 88 of the Laws of Malta) in so far as relevant read as follows:
Section 3
“The President of Malta may by declaration signed by him declare any land to be required for a public purpose.”
Section 7
“The competent authority may deal with and dispose of land acquired by it in such manner and subject to such conditions as it considers expedient having regard to the public interest or utility.”
23. Articles 2 and 3 of subsidiary legislation 12.09 regarding court practice and procedure and good order rules, read as follows:
Article 2
“Proceedings before the Civil Court, First Hall, under article 46 (1) of the Constitution of Malta and under article 4 (1) of the European Convention Act and proceedings before the Constitutional Court in cases referred to in article 95 (2) of the Constitution of Malta shall be instituted by application.”
Article 3
“(1) An application before the Civil Court, First Hall, shall state concisely and clearly the facts out of which the complaint arises and shall indicate the provision or provisions of the Constitution of Malta or of the European Convention for the Protection of Human Rights and Fundamental Freedoms alleged to have been, to be or likely to be contravened.
(2) The application shall also specify the redress sought by the applicant:
Provided that it shall be lawful for the court, if the application is allowed, to give any other redress within its jurisdiction which it may consider to be more appropriate.
(3) In cases referred to in article 95 (2) (a) of the Constitution of Malta, the application before the Constitutional Court shall state clearly and concisely the circumstances out of which the question arises, the demand and the provision or provisions of the Constitution or of any other law on which the applicant relies.
(4) In cases referred to in article 95 (2) (c), (d), (e) and (f) of the Constitution of Malta, the application shall state clearly and concisely the circumstances out of which the appeal arises, the reasons of appeal and the prayer for the reversal or a specific variation of the decision appealed from.
(5) Default of compliance in the application with the requirements of sub-rules (1), (2), (3) and (4) shall not render the application null; but the court may, in any such case, order the applicant to file, within such time as the court shall fix, a note containing the particulars required and the costs of such order shall be borne by the applicant.”
24. Article 1078 of the Civil Code (Chapter 16 of the Laws of Malta), in so far as relevant, read as follows:
“Where the time for the performance of the obligation has been left to the will of the debtor, or where it has been agreed that the debtor shall discharge the obligation when it will be possible for him to do so, or when he will have the means for so doing, the following rules shall be observed:
(a) if the subject-matter of the obligation is the payment of a sum of money, such obligation shall be performed within two years, if the sum is due without interest, or, within six years if the sum is due with interest;
(b) if the subject-matter of the obligation is other than the payment of a sum of money, the time within which the obligation is to be performed shall be fixed by the court according to circumstances.”
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-72592
LANGUAGEISOCODE: ENG
RESPONDENT: UKR
BRANCH: CHAMBER
DATE: 2006
DOCNAME: CASE OF SAVINSKIY v. UKRAINE
IMPORTANCE: 3
CONCLUSION: Violation of Art. 6-1
TEXT: 7. The applicant was born in 1969 and lives in the village of Ponyatovka, Odessa region, Ukraine.
8. The applicant worked as a customs officer at the Rozdilnyanska Customs Office in the Odessa Region, Ukraine.
9. On 24 July 2000 the applicant was charged with the criminal offences of aiding and abetting in smuggling and tax evasion, abuse of power and fraud. The same day the applicant was arrested. He remained in custody until 6 November 2000.
10. On 6 November 2000 the Novozavodsky District Court of Chernigiv decided the applicant’s case. The court established, in particular, that the applicant had certified documents confirming that two vans with goods had left the customs territory of Ukraine, and that the applicant had not checked the actual presence of the vehicles at the customs post. The goods were, however, found and seized by the Security Service somewhere else within the customs territory of Ukraine. The court did not find any proof that the applicant had acted deliberately in order to aid the crime: the applicant denied any criminal intent and no other persons involved in the actual smuggling or tax evasion had been established by the investigation. On the basis of these findings, the court sentenced the applicant to three years’ imprisonment for the negligent performance of his professional duties and to a fine of UAH 400. At the same time, the court acquitted the applicant of other charges. By the same decision, the applicant was absolved from this sentence under the Amnesty Law of 11 May 2000. This decision was not appealed and became final on 14 November 2000.
11. On an unspecified date, the President of the Chernigiv Regional Court lodged a request for a supervisory review of the judgment of 6 November 2000, on the grounds of an erroneous qualification of the applicant’s actions and his unreasonable acquittal on the other criminal charges brought by the prosecution. The President also noted that the sentence was too lenient.
12. On 25 December 2000 the Presidium of the Chernigiv Regional Court allowed the request of its President, quashed the judgment of 6 November 2000, and remitted the case for a fresh consideration. The court instructed the first instance court to examine more thoroughly the existing evidence in the case and to conduct additional, more comprehensive interrogations of the accused and the witnesses.
13. On 29 January 2001 the Novozavodsky District Court of Chernigiv considered the case anew and sentenced the applicant to five years’ imprisonment, suspended for two years pending probation, and a fine of UAH 1,000. The court found the applicant guilty of aiding and abetting in smuggling, an abuse of power and fraud. The court acquitted the applicant of aiding and abetting tax evasion, since all the smuggled goods had been seized by the law enforcement bodies and no profit had been made by anyone selling them.
14. On 1 March 2001 the Criminal Chamber of the Chernigiv Regional Court upheld the decision of the first instance court. The former found that the first instance court had correctly qualified the applicant’s actions. This decision was final.
15. On an unspecified date, the President of the Chernigiv Regional Court lodged a request for a supervisory review of the judgments of 29 January and 1 March 2001, on the ground that the courts had not followed the instructions given in the previous decision of the Presidium of the Chernigiv Regional Court of 25 December 2000 about the qualification of the applicant’s actions and the severity of the sentence.
16. On 19 March 2001 the Presidium of the Chernigiv Regional Court chaired by the President allowed the request, quashed the decision of 29 January 2001, and remitted the case for a fresh consideration. The Presidium found that the first instance court had not followed the earlier instructions and that the sentence was too lenient.
17. On 2 October 2001 the Novozavodsky District Court of Chernigiv considered the case anew, found the applicant guilty of all charges and sentenced him to five years’ imprisonment.
18. On 9 July 2002 the Supreme Court allowed the applicant’s cassation appeal and changed the decision of the first instance court, sentencing the applicant to two years’ imprisonment for the negligent performance of his professional duties. The court noted that no criminal intent in the applicant’s actions could be established and, given the lapse of time, it seemed improbable that any other offenders, who had been directly involved in smuggling, could be found. Therefore, the court acquitted the applicant of the other charges (aiding and abetting in smuggling and tax evasion) for a lack of corpus delicti. By the same decision, the applicant was absolved from his sentence under the Amnesty Law of 11 May 2000.
19. At the material time, Chapter 31 of the Code of Criminal Procedure allowed a final and binding judgment to be subject to a supervisory review. The final judgment in a case could be appealed under the supervisory review procedure by the President of a Regional Court or the Supreme Court of Ukraine, the Regional Prosecutor or the Prosecutor General of Ukraine or their Deputies (Article 384), and had to be considered by the Regional Court or the Supreme Court (Article 388). Under Article 385, if the appeal against the final judgment was to the detriment of the person thereby convicted or acquitted, it could be lodged only within a year after the impugned judgment had come into force. Otherwise, the supervisory review appeal could be lodged at any time.
The supervisory review procedure was repealed in June 2001.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-90651
LANGUAGEISOCODE: ENG
RESPONDENT: MKD
BRANCH: CHAMBER
DATE: 2009
DOCNAME: CASE OF ASSOCIATION OF CITIZENS RADKO AND PAUNKOVSKI v. "THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA"
IMPORTANCE: 1
CONCLUSION: Violation of Art. 11;Non-pecuniary damage - award
JUDGES: Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Peer Lorenzen;Rait Maruste;Renate Jaeger
TEXT: 8. The second applicant was born in 1954 and lives in Ohrid, the former Yugoslav Republic of Macedonia.
9. On 24 May 2000 ten Macedonian nationals, including the second applicant, founded the Association in the city of Ohrid. On 19 June 2000 the Ohrid Court of First Instance registered the Association in the register of associations of citizens and foundations under the following name: “Association of Citizens Radko-Ohrid”.
10. Article 3 of the Articles of Association (“the Articles”) defined the Association as an independent, non-political and public organisation, which studies and promotes the Macedonian Liberation Movement (“the Movement”) through commonly accepted democratic principles and standards.
11. Article 7 defined its objectives and tasks as follows:
“The Association has the following objectives and tasks:
it endeavours to raise and affirm the Macedonian cultural space;
it endeavours to establish traditional ethical and human values;
it endeavours to popularise the objectives, tasks and ideas of the Macedonian Liberation Movement through the publication of its own newspaper, publishing activity and library, and through its own electronic media, seminars, conferences, forums and other forms of cultural action.”
12. Article 8 set out that the Association will attain these objectives and tasks through:
“- the individual and collective activities of the members, bodies and structures of the Association,
- cooperation between the Association and other similar associations and structures, inside the country and abroad”.
13. Article 9 provided that every citizen who accepted the Association’s Programme could become a member.
14. Article 10 § 1 provided:
“Every citizen of the Republic of Macedonia and citizens of a foreign state may become a member, if they have reached the age of 18, after signing a membership application”.
15. The Association’s Programme of 24 May 2000 consisted of two paragraphs. It read as follows:
“The Association is founded as a non-governmental, non-party and non-political organisation with the purpose of raising and affirming the Macedonian cultural space, establishing traditional ethical and human values, affirmed in the ideas of the Macedonian Liberation Movement, through the publication of its own newspaper, publishing activity and library, and through its own electronic media, seminars, conferences, forums and other forms of cultural action.
For the above objectives, the Association will organise public forums, with the participation of outstanding cultural and scientific scholars from inside the country and abroad, through its local committees.”
16. On 27 October 2000 the official launch of the Association took place in a hotel in Skopje, the capital of the former Yugoslav Republic of Macedonia. A promotional leaflet by the Association (which accompanied the letters of invitation for the opening ceremony) was published at the beginning of October. It provided information about the Association’s name, objectives and the ways in which these were to be achieved. It read:
“a. Name of the Association
The founders of the Association have taken as its name the most frequently used pseudonym of Ivan Mihajlov, RADKO.
Ivan Mihajlov-Radko, his name, his life, his revolutionary activity and especially his cultural and literary activity are deeply woven in the history of Macedonia. Praised, but also denounced by his ideological adversaries, he became and still remains a legend for his ideological companions, including the founders of this Association. Although his work is yet to be evaluated, it is undisputable that under his leadership the Macedonian Liberation Movement became an example of the human spirit’s love of freedom. Thus, he placed an obligation on future generations to complete the holy liberation.
Ivan Mihajlov headed the Movement for an extremely long period (1925-1990). He remained and worked as an intellectual and moral pillar of the revolutionary and cultural struggle of the Bulgarians from Macedonia. This allows us to state that his publications are the most authentic and most reliable evidence of the ideological content of the Macedonian Liberation Movement. Due to their factual reliability they remain as historical evidence of unquestionable scientific value. His written legacy provides the present and coming generations with the most concrete evidence of the revolutionary and cultural struggle of the Bulgarians from Macedonia. Of this legacy, the most important [work] is his four-volume “Memoirs”, which are a national treasure of unchangeable value in the recent history of Macedonia.”
b. The Association aims to:
- raise and affirm the Macedonian cultural space, having as its priority the cultural and historical identity of the Slavs from Macedonia who have appeared as Bulgarians throughout the centuries;
- establish traditional ethic and human values;
- affirm the ideas of the Macedonian Liberation Movement.
c. The Association realises its objectives through:
- own book-publishing activity, publication of its own newspaper and its own electronic media;
- the organisation of conferences, seminars and forums with outstanding scientific and cultural scholars from the country and abroad;
- cooperation with scientific, cultural and educational institutions, and with similar associations and organisations from the country or abroad.”
17. After the opening speech by the Chairman of the Association and a solemn performance of the anthem of Todor Alexandrov, three young men threw smoke bombs inside the conference hall, which caused a temporary delay. Some of the participants started to beat and kick the young men. The latter managed to escape, but a retired journalist was injured. According to the daily newspaper “Utrinski vesnik” of 30 October 2000, he sustained a “fracture of his left hand and blood on his face”.
18. On 7 October 2005 the Skopje Court of First Instance convicted two persons of causing grievous bodily injury and sentenced them to three months’ imprisonment. It found that the perpetrators had pushed the journalist, who had sustained a fracture of the forearm. One of the perpetrators was a member of the Association.
19. There was a strong media campaign before and after the launch of the Association, condemning its foundation and functioning as contrary to the Macedonian national identity. The Association was described as “fascist” and as rehabilitating “terrorism and fascism, which were the basic characteristics of Hitler’s collaborator Vančo Mihajlov” (excerpts from the newspapers “Utrinski vesnik”, mentioned above, and “Dnevnik” from 24 October 2000).
20. In or about October 2000 three practising lawyers from Skopje, together with a political party and the Association of War Veterans from the Second World War filed petitions before the Constitutional Court challenging the conformity of the Association’s Articles and Programme with Article 20 of the Constitution. They also challenged the lawfulness of the Ohrid court’s decision to register the Association.
21. The petitioners, inter alia, stressed that:
“...the aims of the Association are the infiltration of Bulgarian linguistic elements into the Macedonian language and alphabet...”
22. The petitioners noted that all the Association’s documents bore the flag of Vančo Mihajlov. They continued:
“The Association promotes Vančo’s (meaning Ivan Mihajlov’s) ideology for a change in the national conscience of the Macedonian people in favour of another one, which destroys the Macedonian national texture and leads to the encouragement of and incitement to national hatred and intolerance. The Association rehabilitates and legalises terrorism and fascism as crucial characteristics of the work of Hitler’s collaborator Vančo Mihajlov, as an “act of holy liberation” and as a legacy that is left to someone to complete...The Slavs from Macedonia who appeared as Bulgarians (Болгари) throughout the centuries...are unknown in the Republic of Macedonia. They do not exist as a nation, any nationality or legitimate entity whatsoever. There are only Macedonians in Macedonia, and there also might be Bulgarians, Serbs...as affiliated to different people and nations. However, there are no “Slavs from Macedonia-Bulgarians”.
23. On 8 November 2000 the Constitutional Court sent the petitions for reply to the second applicant, as Chairman of the Association. The Association contested the petitioners’ arguments as its Articles and Programme did not contain any elements that would incite to national, religious or racial hatred or intolerance or would advocate violent destruction of the constitutional order.
24. On 17 January 2001 the Constitutional Court declared the petition admissible. The court found, inter alia, that there existed:
“well-founded doubts that the Association’s Articles and Programme were directed towards violent destruction of the constitutional order of the Republic of Macedonia and incitement to national or religious hatred or intolerance, and that as such they are not in conformity with the Constitution of the Republic of Macedonia”.
25. It further declared itself incompetent to judge the constitutionality of the registration decision of the Ohrid Court of First Instance, because it was not vested with jurisdiction to decide on such decisions.
26. On 21 March 2001 the Constitutional Court declared the Association’s Articles and Programme null and void, on the ground that they were directed towards violent destruction of the constitutional order and incitement to national or religious hatred or intolerance.
27. The Constitutional Court based its decision on the following reasoning:
“According to Ivan Mihajlov’s teaching, Macedonian ethnicity never existed on this territory, but belonged to the Bulgarians (Болгари) from Macedonia and its recognition (i.e., that of Macedonian ethnicity) was the biggest crime committed by the Bolshevik headquarters during its existence. According to his teaching, the process of de-bulgarisation of Macedonia, which was violently carried out after the Second World War, was a [form of] slavery executed by the Serb-communist regime and such Serb-communist doctrine continued to be the official one of the State after it became independent in 1991.
In line with those arguments, the founders of the Association “Radko” took the following as their main Programme objectives: (1) to raise and affirm the Macedonian cultural space, having as a priority the cultural and historical identity of the Slavs from Macedonia who have appeared as Bulgarians throughout the centuries; (2) to establish traditional ethic and human values; (3) not to forget the Bulgarian ethnic origin of the Macedonian people, as that would mean a denunciation of its tradition and culture.
Affirmation of the ideas of the Macedonian Liberation Movement, according to the Association, in fact means relief from “Macedonianism”, as a Serb-communist doctrine, and from the “imagined Macedonian nation” which was used as an open door for the accession of the whole of Macedonia to Yugoslavia.
Taking that into consideration, the court holds that the Articles and the Programme of the Association of Citizens “Radko”- Ohrid are directed towards the violent destruction of the constitutional order of the Republic of Macedonia and to incitement to national or religious hatred or intolerance, and finds that they are not in compliance with the Constitution of the Republic of Macedonia.”
28. As regards freedom of association, the Constitutional Court argued as follows:
“... the court has taken into consideration that citizens’ freedom and right to association and activity, as part of the corpus of human rights and freedoms, are among the fundamental values for the existence and development of democratic relations in the functioning of government in the Republic of Macedonia, oriented towards its citizens and their rights, freedoms, interests and aspirations. They are also the basis for the accomplishment of the constitutional determination of the Republic of Macedonia as a democratic state. This being so, the above freedom and right are explicitly guaranteed in Article 20 §§ 1 and 2 of the Constitution of the Republic of Macedonia.
However, the court finds that the freedom and right to association, organisation and activity cannot be taken to indicate approval for all objectives and the choice of means to attain them.
The principles and safeguards for exercising freedom of association and activity are explicitly determined in Article 20 § 3 of the Constitution, which bans the Articles and activities of associations of citizens which are directed towards the violent destruction of the constitutional order of the Republic and to incitement to national or religious hatred or intolerance. Furthermore, Articles 1, 3 and 8 of the Constitution protect the sovereignty and territorial integrity of the Republic.”
29. Applying these criteria to the present case, the Constitutional Court held as follows:
“The Articles and the Programme of the Association, read in the light of the prohibitions set forth in Article 20 § 3 of the Constitution, must be interpreted as aims which directly and explicitly call for destruction of the constitutional order, i.e. they explicitly encourage an incitement to national hatred and intolerance, and as such they are to be treated as aims and activities that are objectively directed towards what is banned by the Constitution.
In this context, the court takes into consideration the Preamble to the Constitution of the Republic of Macedonia, which takes as a historical fact that Macedonia is constituted as a national state of the Macedonian people and that every activity directed towards denunciation of its identity is in fact directed towards the violent destruction of the constitutional order of the Republic and towards encouragement of or incitement to national or religious hatred or intolerance and towards denunciation of the free expression of its national affiliation.
Bearing this in mind, the court found that the Programme and the Articles of the Association of Citizens “Radko”- Ohrid are directed towards the violent destruction of the state order; hindrance of free expression of the national affiliation of the Macedonian people, i.e. negation of its identity and incitement to national or religious hatred or intolerance.”
30. On 10 April 2001 the Constitutional Court’s decision was published in the “Official Gazette of the Republic of Macedonia” and became final and enforceable.
31. On 16 January 2002 the Ohrid Court of First Instance ex officio decided to terminate the activities of the Association (се утврдува престанок на работа на Здружението).
32. On 29 January 2002 the applicants appealed the latter decision. They complained that it had been given on the basis of the Constitutional Court’s decision, which in their view had not been final, but that the Strasbourg Court’s holdings on their application should be awaited.
33. On 11 February 2002 the Bitola Court of Appeal dismissed the appeal as ill-founded. It found that an association of citizens would cease to exist ipso jure when the Constitutional Court had declared its Articles and Programme unconstitutional. As the Constitutional Court’s decision had been published in the Official Gazette and had accordingly entered into force, the Court of Appeal upheld the lower court’s decision.
34. The Preamble to the Constitution, as valid at the material time, read, inter alia:
“...the historical fact that Macedonia is established as a national state of the Macedonian people, in which full equality as citizens and permanent co-existence with the Macedonian people is provided for Albanians, Turks, Vlachs, Roma and other nationalities living in the Republic of Macedonia...”
35. Amendment IV of the Constitution of 2001 replacing the Preamble, reads, inter alia, as follows:
“The citizens of the Republic of Macedonia, the Macedonian people, as well as citizens living within its borders who are part of the Albanian people, the Turkish people, the Vlach people, the Serbian people, the Romany people, the Bosniak people and others ...”
36. The relevant provisions of the Constitution related to freedom of association and the Constitutional Court read as follows:
Article 20
“Citizens are guaranteed freedom of association to exercise and protect their political, economic, social, cultural and other rights and convictions.
Citizens may freely establish associations of citizens and political parties, join them or resign from them.
The programmes and activities of political parties and other associations of citizens may not be directed at the violent destruction of the constitutional order of the Republic, or at encouragement of or incitement to military aggression or ethnic, racial or religious hatred or intolerance.
Military or paramilitary associations which do not belong to the Armed Forces of the Republic of Macedonia are prohibited.”
Article 50
“Every citizen may invoke protection of the freedoms and rights set forth in the Constitution before the courts, including before the Constitutional Court of the Republic of Macedonia, in a procedure based upon the principles of priority and urgency.
Judicial protection of the legality of individual acts of the state administration, as well as of other institutions carrying out public mandates, is guaranteed.
A citizen has the right to be informed about human rights and fundamental freedoms and also actively to contribute, individually or jointly with others, to their promotion and protection.
Article 110 §§ 3 and 7
“The Constitutional Court of the Republic of Macedonia:
- protects the freedoms and rights of the individual and citizen relating to freedom of conviction, conscience, thought and public expression of thought; political association and activity; and the prohibition of discrimination among citizens on the ground of sex, race, religion or national, social or political affiliation;
- decides on the constitutionality of the programmes and statutes of political parties and associations of citizens...”
Article 112 §§ 2 and 3
“The Constitutional Court shall repeal or invalidate a collective agreement, other regulation or enactment, statute or programme of a political party or association, if it finds that they do not conform to the Constitution or law.
The decisions of the Constitutional Court are final and enforceable.”
37. The relevant provisions of the Associations of Citizens and Foundations Act provide:
Article 2
“Citizens may freely associate in associations of citizens and may establish foundations in order to accomplish and protect their economic, social, cultural, scientific, professional, technical, humanitarian, educational, sports and other rights, interests and beliefs in conformity with the Constitution and laws.
Associations of citizens and foundations shall be non-profit organisations.”
Article 4
“The Programmes and activities of associations of citizens and foundations shall not be directed towards:
- the violent destruction of the constitutional order of the Republic;
- encouragement of or incitement to military aggression; and
- encouragement of national, racial or religious hatred or intolerance.”
Article 52
“An association of citizens shall cease to exist:
... if the Constitutional Court of the Republic of Macedonia decides that the Programme and the Articles are not in conformity with the Constitution...
The person authorised to represent the association of citizens shall be obliged to notify the first-instance court of the circumstances as described in paragraph 1 within 15 days.
The first-instance court shall determine the cessation of the association of citizens by adopting a decision in non-contentious proceedings. “
VIOLATED_ARTICLES: 11


ITEMID: 001-111536
LANGUAGEISOCODE: ENG
RESPONDENT: CHE
BRANCH: CHAMBER
DATE: 2012
DOCNAME: CASE OF SCHWEIZERISCHE RADIO- UND FERNSEHGESELLSCHAFT SRG v. SWITZERLAND
IMPORTANCE: 3
CONCLUSION: Violation of Article 10 - Freedom of expression -{General} (Article 10-1 - Freedom of expression)
JUDGES: André Potocki;Angelika Nußberger;Ann Power-Forde;Dean Spielmann;Helen Keller;Karel Jungwiert;Mark Villiger
TEXT: 5. The applicant company is a private-law radio and television broadcasting corporation based in Zurich.
6. On 12 August 2004 it applied for authorisation to enter Hindelbank Prison (Canton of Bern) in order to film a sort of portrait (“eine Art Portrait”) of A., a female prisoner serving a sentence for murder. The idea was to broadcast the film of the interview in the “Rundschau” programme, in a feature about the trial of another person accused in the same murder case. It argued that the interview with A., who had consented to it, was a subject of public interest given that, even after her conviction, her case continued to attract a great deal of media attention. “Rundschau” is a weekly Swiss television programme covering political and economic questions. Created in 1968, it is one of the longest-running programmes on Swiss television, and is currently aired on Wednesday evenings.
7. By a decision of 31 August 2004, the prison refused to authorise the filming, for reasons of peace, order and security in the prison, and equal treatment of prisoners.
8. On 27 September 2004 the applicant company lodged an appeal against that decision, explaining that the intention was “to film general shots of A. inside the prison and an interview with her” (“allgemeine Aufnahmen der Insassin im Gefängnis sowie ein Interview mit ihr”).
9. The appeal was rejected by the Bern Canton Department of Police and Military Affairs on 16 February 2005.
10. On 21 March 2005 the applicant company challenged that decision. It argued that there was no danger of disturbing peace and order or threatening security in the prison as it had no intention of filming the technical installations on the site or inside the different buildings. Nor was the presence of a single cameraman and a female journalist likely to disturb the smooth functioning of the establishment or represent a security risk, especially as the filming should not last more than two or three hours and could take place at a time when the other prisoners were working. In any event the precise practical arrangements for the filming had yet to be finalised.
11. By a decision of 1 July 2005 the Administrative Court of the Canton of Bern rejected the appeal. Like the lower court, without denying the considerable media interest generated by A.’s case in Switzerland, it rejected the appeal on the basis of section 5 of the order relating to the Criminal Code and section 48 of the law of the Canton of Bern on the execution of penalties and measures (see paragraph 18 below). It indicated that Article 16 § 3 of the Federal Constitution (paragraph 16 below) authorised access only to generally accessible sources. It considered that while representatives of the media were ordinarily allowed to visit prisons, the organisational and supervisory effort required for a television film crew was well beyond what might reasonably be expected of the prison authorities. It also considered that there was nothing to stop the applicant company from broadcasting a programme about A.’s case using just an audio recording or a simple interview. It reasoned that for the purposes of a news programme on this particular theme (“Sachinformation”), pictures of the prisoner were not necessary.
12. The applicant company lodged a public-law appeal and an administrative-law appeal with the Federal Court, for violation of its freedom of expression and information. It submitted that there was considerable public interest in the murder trial in Switzerland. Considering that the use of modern, light equipment would have limited any disruption of the smooth functioning of the prison, it argued that the court below had given insufficient reasons for the technical and security grounds on which its request to film in the prison had been refused. The filming could have taken place in the room set aside for prison visits, which could have been closed to the other prisoners. It also alleged that the principle of equal treatment had been breached, in so far as it had been placed at a disadvantage compared with other media.
13. In a judgment of 29 November 2005 the Federal Court rejected the administrative-law appeal. It accepted that prison visits were important because contact with their families helped detainees to prepare and facilitate their social rehabilitation, but that did not give rise to any entitlement to film inside a prison.
14. In a judgment of 6 February 2006, served on the applicant company on 16 February 2006, the Federal Court also rejected the public-law appeal. It upheld the decision of the lower court according to which Article 16 § 3 of the Federal Constitution guaranteed access only to information that was generally accessible. It considered that the same must apply to Article 10 of the Convention. It added that giving the applicant company access to the prison might infringe the other prisoners’ personality rights. As to the applicant company’s argument that giving some media access to the prison but not television crews amounted to discriminatory treatment, it held that the principle of equal treatment did not apply to the present case, as television productions bore no comparison with audio recordings or simple interviews.
15. It appears from the Government’s observations that when A., who has always protested her innocence, was convicted it caused quite a public stir. The “Appel-Au-Peuple” organisation, for example, which takes various kinds of action in connection with alleged miscarriages of justice, allegedly made threats against the federal judges in charge of the case, which exceptionally led to their replacement for the revision proceedings initiated by A. The leader of the movement even staged a sixty-day hunger strike for A. He apparently spent whole days outside the Federal Court and allegedly took sympathisers along with him to the home of a federal judge, outside which he camped all night in a deckchair.
16. Article 16 of the Federal Constitution reads as follows:
“Freedom of expression and of information
1. Freedom of expression and of information is guaranteed.
2. Every person has the right freely to form, express, and impart their opinions.
3. Every person has the right freely to receive information, to gather it from generally accessible sources and to disseminate it. »
17. The relevant part of Article 5 of the Order of 13 November 1973 on the Criminal Code reads as follows (unofficial translation provided by the Court):
“Visits and correspondence
Visits and correspondence may be restricted only in so far as the smooth operation of the establishment requires. The prison management may impose tighter restrictions if the circumstances of the case so require.
Contact between the detainee and his or her family shall be facilitated as far as possible.
Visits and correspondence shall be authorised only under surveillance. The prison management may decide not to monitor visits and correspondence if the detainee is considered to be trustworthy.
The management may, in the general context of the establishment, authorise free contact between the detainees and clergymen, doctors, defence lawyers, notaries, guardians and people performing comparable functions.
...”
18. Section 9.6 of the law of the Canton of Bern of 25 June 2003, on the execution of sentences and measures, regulates detainees’ contact with the outside world as follows:
“Article 48 – Principles
1. The detainees may have contact with people outside the establishment. As a general rule they shall personally bear the resulting costs.
2. Contacts with the outside world may be supervised and limited, or even prohibited, where abuse or a threat to security and order is to be feared or where they are in contradiction with the purpose of the execution of the sentence.
...”
19. Article 71 of the Swiss Code of Criminal Procedure of 5 October 2007 reads as follows:
1. It is not permitted to make video or audio recordings within the court building or to make such recordings of procedural acts carried out outside the court building.
2. Persons infringing the foregoing paragraph may be liable to a fixed penalty fine in accordance with Article 64 paragraph 1. Unauthorised recordings may be confiscated.”
VIOLATED_ARTICLES: 10
VIOLATED_PARAGRAPHS: 10-1


ITEMID: 001-105125
LANGUAGEISOCODE: ENG
RESPONDENT: MLT
BRANCH: CHAMBER
DATE: 2011
DOCNAME: CASE OF AQUILINA AND OTHERS v. MALTA
IMPORTANCE: 3
CONCLUSION: Violation of Art. 10;Non-pecuniary damage - award
JUDGES: David Scicluna;Ledi Bianku;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä;Sverre Erik Jebens;Zdravka Kalaydjieva
TEXT: 6. The applicants were born in 1942, 1973 and 1954 respectively and live in Malta. When the facts that gave rise to the complaint occurred, the first applicant was the editor of the newspaper “The Times of Malta”, the second applicant was a court reporter for the said newspaper and the third applicant was the registered newspaper’s printer.
7. On 20 June 1995 a bigamy case, in which the accused was represented by Dr A., was to be heard before the Court of Magistrates. Dr A. was called a number of times but he failed to appear. The accused explained that there had been trouble between them in view of requests for excessive fees which he was unable to pay. According to the second applicant, the presiding magistrate repeatedly expressed his intention in open court to find Dr A. in contempt of court. Indeed, in the chaotic atmosphere in the courtroom, the second applicant heard the magistrate find Dr A. to be in contempt of court. According to the second applicant, she subsequently attempted to verify this fact through the records of the proceedings, but both the magistrate and the court deputy registrar had already left their chambers. She therefore verified what she had heard with another reporter present in the courtroom. He confirmed her version.
8. A decision of the same date in the relevant bigamy proceedings referred to the fact that Dr A.’s client’s request to replace his lawyer at that stage of the proceedings verged on contempt of court. However, in view of the circumstances as explained to the court, the case was adjourned.
9. On 21 June 1995, the Times of Malta newspaper published a report entitled ‘Lawyer found in Contempt of Court’. It reported, inter alia, that Dr A. had been found guilty of contempt of court for failing to appear before a magistrate hearing the final stages of a bigamy case.
10. On the same day Dr A. called the second applicant and protested vigorously about the article. Subsequently, the second applicant proceeded to verify the information by checking the record of the proceedings. However, the relevant information was not registered therein. In consequence on 22 June 1995 the newspaper published a report entitled ‘Lawyer Not Found in Contempt of Court’ which reproduced the relevant record of the proceedings and stated that “any inconvenience caused to Dr A. is regretted”.
11. Nonetheless, on the same day, Dr A. brought civil proceedings for defamation under Part III of the Press Act (actions arising from press offences). The applicants pleaded, inter alia, that the publication was privileged under section 33 (d) of the Press Act (see Relevant domestic law below), that it was not libellous, that mitigation in accordance with section 28 (2) of the Press Act should be applied in view of the apology published on the following day and that the third applicant had not read the report prior to its publication (see Relevant domestic law).
12. By a decision of 13 June 1997, the court, while acknowledging that the record of the case did not cover the entire proceedings, allowed the applicants to present evidence. On 24 February 1998, in his testimony, the prosecutor in the bigamy case explained that Dr A. had not appeared at the hearing. The prosecutor related that he had tried to keep the magistrate calm and was nearly found guilty of contempt himself because he was playing defence lawyer. The prosecutor stated that, at that moment, the magistrate dictated a minute, which he thought was directed towards him, that if he opened his mouth he would himself be found in contempt of court. He had also understood, at that moment, that the magistrate found Dr A. to be in contempt of court because he did not appear. The prosecutor reiterated that, at that moment, the magistrate was very angry and that he understood that he had found Dr A. guilty of contempt. When asked whether the impugned article reflected what really went on in the court room, the prosecutor replied “effectively it reflects what happened in court in short”. He continued to say that while much more was said in the court room, at that time, the phrase in the article “the magistrate found Dr A. to be in contempt of court” reflected the impression he had had as to what effectively happened at that moment in time.
13. On 5 November 1999 the Civil Court found against the applicants. It rejected the applicants’ first two above-mentioned defence pleas. In its presentation of the facts the court recalled the above mentioned evidence. It, however, found that the article did not coincide properly with what had happened, in particular in its heading, since, as appeared clearly from the minutes of the hearing, it was not true that the plaintiff was found guilty of contempt of court. Thus, the publication was not a fair report of the proceedings. Consequently, it could not be considered privileged. The court went on to note that the defendants tried to diminish their blame for their incorrect reporting by proving that the hearing had been chaotic. It was for this reason that the journalist misunderstood what had happened. The defendants had further shown that the prosecutor too had misunderstood what had happened, as he had also understood that the plaintiff had been found guilty of contempt. In the court’s view, however, this merely highlighted the need for the reporter to verify her information. The reporter’s interest in publishing information was legitimate. However, it could not be more important than someone’s reputation. The statement that Dr A. had been found to be in contempt of court surely harmed his reputation as it incited the supposition that he had not fulfilled his duties as a lawyer. Thus, it found the statement in question to be defamatory and taking account of the fact that they had published an apology and that the printer had not read the report at issue, it ordered the applicants to pay, in solidum, 300 Maltese liras (MTL – approximately 720 euros (EUR)) in damages with interest and costs, but limiting the third applicant’s responsibility to MTL 150 (approximately EUR 360) plus interest.
14. The applicants appealed and Dr A. cross-appealed.
15. On 27 June 2003 the Court of Appeal rejected both appeals, reiterating that the statement had not reflected the truth and adding that when the statement was in itself injurious, mischievous intent (“animus injurandi”) was presumed.
16. On 31 May 2004 the applicants brought constitutional redress proceedings, claiming that they had published a faithful version of what went on in the courtroom and that the above-mentioned judgments breached their right to freedom of expression. Despite the applicants’ opposition, Dr A. was allowed to intervene in the proceedings.
17. On 24 May 2007 the Civil Court (First Hall) found against the applicants.
18. While extensively reiterating the principles derived from the Court’s case-law, the Civil Court noted that during the defamation proceedings it was established that the fact reported had not been true, and that the applicants had a duty to verify the relevant information. Upon examination of the record of the defamation proceedings, the Civil Court in its constitutional jurisdiction concluded that the domestic courts’ conclusions had not been unreasonable. The fact that the applicants had published an apology was of little relevance, if any, if the information published in the first place was false. In such circumstances it was not unreasonable for the courts to protect Dr A.’s reputation and limit the applicants’ right to freedom of expression.
19. On 4 June 2007 the applicants appealed. On 16 January 2008 the Constitutional Court rejected the applicants’ appeal. It held that a journalist had to assume responsibility for what he or she decided to publish. If an item was presented as fact then the journalist must be able to prove it. Even if acting in good faith, the press may only publish facts and not what appears to it to be fact. Had the second applicant verified the record of the proceedings she could have avoided misinforming the public. Citing the Court’s case-law, the Constitutional Court held that, while it was not for them to establish the veracity of the facts at issue, the domestic courts’ judgments in favour of Dr A. had not infringed the applicants’ rights under Article 10. The public had a duty to be informed of true and verified facts, in good faith, as was to be expected from professional journalism.
20. Section 28 of the Press Act, Chapter 248 of the Laws of Malta, relates to damages for defamatory libel. Subsection 2, in so far as relevant, reads as follows:
“In any case to which this article applies, the defendant may, in mitigation of damages, prove that he made or offered to make an apology to the plaintiff for such defamation before the commencement of the action for damages or, as soon afterwards as he had an opportunity of doing so where the action commenced before there was an opportunity of making or offering such apology:
Provided that the defendant shall not be allowed to adduce such proof in mitigation of damages if he has raised a plea of justification in terms of section 12.”
21. According to section 33 (d) of the Press Act, in so far as relevant, the following are privileged publications, in that no action shall lie in respect of them:
“Publications of reports of any proceedings in a court of justice in Malta provided such reports are fair reports of the proceedings and the publication of such reports or proceedings is not prohibited by law or by the court...”
22. Article 518 of the Criminal Code, Chapter 9 of the Laws of Malta, reads as follows:
“The acts and documents of the courts of criminal justice shall not be open to inspection, nor shall copies thereof be given, without the special permission of the court, except by or to the Attorney General, by or to the parties concerned or by or to any advocate or legal procurator authorised by such parties; but any act, which is pronounced in open court, shall be open to inspection by any person, and copies thereof may be given on payment of the usual fee:
Provided that a procès-verbal and any depositions and documents filed therewith shall be open to inspection, and copies thereof shall be given, only at the discretion of the Attorney General and on payment of such fees as may be prescribed by the Minister responsible for justice ....”
VIOLATED_ARTICLES: 10


ITEMID: 001-23067
LANGUAGEISOCODE: ENG
RESPONDENT: GRC
BRANCH: ADMISSIBILITY
DATE: 2003
DOCNAME: IMAM v. GREECE
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Françoise Tulkens
TEXT: The applicant, Mr Ahmet Imam, is a Greek national, who was born in 1955 and lives in Xanthi. The Government are represented by Mr V. Kyriazopoulos and Mr D. Kalogiros of the Legal Council of the State, Acting Agents.
The facts of the case, as submitted by the parties, may be summarised as follows.
The applicant, who considers himself a member of the Muslim Turkish minority of Thrace, is a graduate of the Special Academy for Teachers of Thessaloniki. He used to work as a teacher in the minority schools of Thrace. His conditions of employment were not different from those of other civil servants.
On 18 January 1993 the Minority Schools Office of the Prefecture of Rodopi called all the Muslim teachers of the minority schools of Rodopi to attend an educational meeting on 1 February 1993. The aim of the meeting was to present new books for the teaching of the Turkish language, which would be delivered to the directors of the schools between 2 and 5 February 1993.
A similar order was issued on 19 January 1993 by the Minority Schools Office of the Prefecture of Xanthi.
On 26 January 1993 the Co-ordination Committee of the Highest Council of the Muslim Turkish Minority of Western Thrace issued a statement to the effect that the content of these books “was in breach of the autonomy of the Muslim Turkish Minority of Western Thrace” and failed to respect certain international agreements. The Muslim teachers were called upon not to collect these books and the Muslim pupils not to attend school between 1 and 5 February 1993, in order to voice the protest of the Muslim Turkish Minority of Western Thrace.
On 29 January 1993 the Union of Turkish Teachers of Western Thrace issued a statement to the effect that the Turkish schools of Western Thrace would be closed between 1 and 5 February 1993, because the Turkish Muslim teachers of Western Thrace were against the Turkish language books which the Greek State intended to distribute to the pupils of the minority schools. The statement also said that all the Turkish Muslim teachers of Western Thrace would participate in the strike. Reference was made to the members of the Union of Teachers of Western Thrace who were graduates of the Special Academy for Teachers of Thessaloniki. The statement specified that all those who felt they were Turkish Muslims and who wanted to learn or teach the Turkish language would take part in the boycott.
On an unspecified date, a Muslim religious leader, the mufti of Xanthi, called on the Muslim teachers who felt they were Turkish not to go to the presentation of the books on 1 February 1993.
On 1 February 1993 eleven teachers of the minority schools of Xanthi, including the applicant, signed a statement to the effect that they would not attend the educational meeting in the Minority Schools Office of the Prefecture of Xanthi in order to protest about certain unfair decisions against them concerning posting, transfer and secondment and their exclusion from training seminars in Thessaloniki and Strasbourg. They specified that they would not carry out their duties between 1 and 5 February 1993.
On 5 February 1993 the Executive Committee of the Highest Council of the Muslim Turkish Minority of Western Thrace issued a statement congratulating the pupils and teachers who took part in the mobilisation which showed the length to which the minority was prepared to go in order to vindicate its rights.
On 8 February 1993 the Minority Schools Office of the Prefecture of Xanthi decided to institute disciplinary proceedings under Article 206 § 1 of the Civil Servants’ Code against thirteen minority school teachers, including the applicant, for having failed to attend the educational meeting of 1 February 1993.
On 10 February 1993 the Regional Disciplinary Board of Xanthi ordered an inquiry and decided provisionally to suspend the applicant from his duties for a year pending the outcome of the disciplinary proceedings against him.
On 31 March 1993 the Ministry of Education confirmed the decision of the Regional Disciplinary Board of Xanthi regarding the provisional suspension of the applicant from his duties.
On 5 April 1994 the Regional Disciplinary Board of Xanthi issued a decision in which it considered the following:
– First, the applicant had been asked by his superiors to attend the educational meeting of 1 February 1993 but had failed to do so, arguing that attending the meeting would have disrupted his relationship with his pupils and his parents and put his personal integrity in danger. However, the Board considered that this excuse was not valid, because the meeting would have taken place in the city of Xanthi far from the applicant’s school area. Moreover, the applicant took part in a strike between 1 and 5 February 1993 complying with the order and appeal of the irregular Co-ordination Committee of the Highest Council of the Muslim Turkish Minority of Western Thrace and the appeal of the illegally self-proclaimed mufti of Xanthi calling on the Muslim teachers who felt they were Turkish not to attend the meeting of 1 February 1993. He had accused the State of persecuting him. His illegal acts had contributed to creating tension and commotion in the minority community. The applicant had allied himself with certain subversive elements in the minority community who falsely contended that there was no equality before the law in Western Thrace. Thus, he had become agent of foreign anti-Greek powers. These facts constituted the following disciplinary offences: not having faith in and dedication to his country (Article 206 § 1–1 of the Civil Servants’ Code), refusing to discharge his duties or employing obstructive tactics (Article 206 § 1–19 of the Code), taking part in a strike in breach of Article 23 § 2 of the Constitution and the relevant legislation (Article 206 § 1–20 of the Code) and intentionally engaging in an act or omission which could damage or endanger the interests of the State (Article 206 § 1–27 of the Code).
– Secondly, the applicant had publicly criticised the Ministry of Education on the ground that the new books were distributed in breach of international agreements concluded by Greece. As a result, he had committed the disciplinary offence of criticising the actions of his superiors in public using phraseology which showed lack of respect or intentionally using unfounded arguments (Article 206 § 1–6 of the above-mentioned Code).
– Thirdly, the applicant had become an organ of irregular committees acting against the interests of the nation. His actions had stirred up trouble in the minority community and had led to the involvement of Turkish newspapers, to tension between the two countries and to criminal proceedings being instituted against parents who had disrupted the functioning of the schools. As a result, the applicant had committed the disciplinary offence of failing to respect a duty imposed by criminal law (Article 206 § 1–28 of the Code).
The Board was fully satisfied that the applicant “acting in full conscience and with intent and malice, behaving in a manner incompatible with [his] status as civil servant, acting against the nation and obeying the commands of anti-Greek power structures, aimed at destabilising the region where the situation was until then normal and creating social unrest”. In the light of all the above, the Board decided to dismiss the applicant.
On 7 April 1994 the Prefect of Xanthi ordered the applicant’s dismissal by virtue of Article 12 of Presidential Decree no. 1024/1979. Under that decree, pertaining to the appointment and career of Muslim teachers in the minority schools of Thrace, the Prefect is the competent authority to pronounce the termination of service of Muslim teachers.
On 30 May 1994 the applicant challenged the decision of the Disciplinary Board and the Prefect’s decision before the Council of State. He claimed that he did not lack faith in and dedication to his country, that he had not acted against social order, that he had the right to engage in objective and reasonable criticism of the actions of his superiors or the Government, that he had not refused to discharge his duties but had instead participated in a lawful strike, that he had not engaged in any acts which could have caused damage to the State or in any criminal offences, that he had been forced not to collect the books in person because his life had been threatened by other Muslims, that the Board had attributed wrong motives to his actions which were not anti-Greek and that his punishment aimed at his destruction. He further submitted that the hearing before the Disciplinary Board had not been preceded by a proper inquiry, that he had been punished for offences which were not mentioned in the decision instituting proceedings against him and that the Board had not heard a number of witnesses he had proposed. Finally, the applicant argued that the decision of the Board was not duly reasoned in that it failed to specify how his actions amounted to the particular disciplinary offences which should be punished with the particular penalty.
On 22 June 1995 the Council of State rejected the applicant’s appeal against the decision of the Disciplinary Board of 5 April 1994 (judgment no. 3595/1995). The Council considered that the inquiry ordered on 10 February 1993 satisfied the requirements of the law and that the Board had not failed to examine any witnesses proposed by the applicant. The Council also considered that the applicant could not be punished for facts other than those which were mentioned in the decision of 8 February 1993 by which the disciplinary proceedings had been instituted. The applicant could only be punished for having failed to attend the educational meeting of 1 February 1993. However, the Disciplinary Board and the Council of State remained free to examine these facts under different legal provisions from those mentioned in the decision instituting disciplinary proceedings. The Council considered that the applicant’s failure to attend the meeting of 1 February 1993 in order to participate in a strike between 1 and 5 February 1993 amounted to the disciplinary offence of serious disobedience under Article 207 § 4–10 of the Civil Servants’ Code. The Council found that the punishment imposed was appropriate given the circumstances in which the offence had taken place. The Council referred in this connection to the statement of 26 January 1993 of the Co-ordination Committee of the Highest Council of the Muslim Turkish Minority of Western Thrace, the statement of 29 January 1993 of the Union of Turkish Teachers of Western Thrace and the statement of the mufti of Xanthi which called on all the Muslim teachers who considered themselves Turkish not to attend the educational meeting of 1 February 1993. The Council considered that the applicant had obviously associated his failure to comply with the order to attend the educational meeting with the above-mentioned statements of organisations which purported to represent the self-proclaimed Turkish minority of Western Thrace. Seen in the light of the above, the applicant’s actions had had as a result the disruption of the functioning of the minority schools in Western Thrace in which the State was particularly interested. They had also resulted in social unrest among the Muslim minority of this sensitive region. This in turn could have resulted in dangerous albeit unwarranted disruption of the friendly relations between Greece and neighbouring countries and in the disruption of the harmonious coexistence between the Greek citizens, Muslim and Christian, who lived in Western Thrace.
Finally, the Council considered that the decision of the Board was duly reasoned. All the elements of the disciplinary offence of serious disobedience were set out in the decision which specified that the applicant had not attended the meeting of 1 February 1993, although he had been asked to do so by his superiors. The decision also specified that the applicant had complied with the order and appeal of the irregular Coordination Committee of the Highest Council of the Muslim Turkish Minority of Western Thrace and the appeal of the illegally self-proclaimed mufti of Xanthi calling on the Muslim teachers who felt they were Turkish not to attend the meeting of 1 February 1993.
On 4 December 1995 the Prefect of Xanthi revoked his decision of 7 April 1994 and, in compliance with decision no. 3595/1995 of the Council of State, ordered the applicant’s dismissal as from the same date.
On 4 April 1996 the Council of State struck out the proceedings instituted against the Prefect’s decision of 7 April 1994, on the ground that the decision complained of had already been revoked by the Prefect.
By decision of 2 December 1997, notified to the applicant on 9 January 1998 the Prefect ordered for the third time the applicant’s dismissal.
In the meantime, the applicant had instituted several proceedings in order to recover several sums (arrears of salaries, compensation for his dismissal, etc.). The applicant claims that a set of proceedings instituted on 30 June 1997 before the First Instance Court of Rodopi is still pending. He further claims that on 12 October 1998 the Minority Schools Office notified to him a decision of the Minister of Education that his pecuniary claims had been statute-barred.
On 4 March 1998 the applicant appealed against the Prefect’s decision of 2 December 1997 to the Administrative Court of Appeal of Komotini. He claimed that all other civil servants were dismissed by ministerial decision and complained that his dismissal by prefectural decision was contrary to religious freedom. He further complained that he was not previously heard by the Prefect. The applicant further invoked Articles 6 and 14 of the Convention and 1 of Protocol No. 1.
On 22 March 2000 the Administrative Court of Appeal rejected the appeal (decision no. 80/2000). The court held that, by definition, the Prefect has a better knowledge of the local situation than the Minister; therefore, it could not be sustained that the delegation to the Prefect to pronounce the termination of service of Muslim teachers violated the religious freedom. Moreover, the court held that the Prefect’s decision aimed at complying with the relevant decisions of the Council of State; therefore, the previous hearing of the applicant was not required. The applicant did not appeal against this decision to the Council of State.
The applicant claims that he has instituted civil and administrative proceedings in order to recover several sums (arrears of salaries, compensation for his dismissal, etc.). The applicant alleges that a set of proceedings instituted on 30 June 1997 before the First Instance Court of Rodopi is still pending. He further alleges that on 12 October 1998 the Minority Schools Office notified to him a decision of the Minister of Education that his pecuniary claims had been statute-barred.
On 28 December 2001 the First Instance Administrative Court of Komotini awarded the applicant EUR 4,185 for pecuniary damage (decision no. 280/2001). The applicant did not appeal against this decision within the sixty days time-limit provided for by the Code of Administrative Proceedings.


ITEMID: 001-107118
LANGUAGEISOCODE: ENG
RESPONDENT: HRV
BRANCH: ADMISSIBILITY
DATE: 2011
DOCNAME: VRACIC v. CROATIA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Anatoly Kovler;Elisabeth Steiner;Erik Møse;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Peer Lorenzen
TEXT: The applicant, Mr Željko Vračić, is a Croatian national of Serbian origin who was born in 1967 and lives in Branjin Vrh, Serbia.
On 25 September 1992 the Act on Amnesty from Criminal Prosecution and Proceedings in Respect of Criminal Offences Committed during Armed Conflicts and the War against the Republic of Croatia was enacted.
On 29 August 1994 an investigation was opened in the Osijek Military Court (Vojni sud u Osijeku), at the request of the Osijek Military Prosecutor (Vojno tužiteljstvo u Osijeku), in respect of the applicant and a large number of other persons on charges of armed rebellion which allegedly had taken place in the Beli Manastir Municipality.
The applicant submits that he was not aware of these proceedings.
On 24 September 1996 the General Amnesty Act was enacted which ordered a general amnesty in respect of all criminal offences committed in connection with the war in Croatia in the period between 17 August 1990 and 23 August 1996, save in respect of those acts which amounted to the gravest breaches of humanitarian law or to war crimes, including genocide.
At the request of the Osijek Military Prosecutor of 3 December 1996, on 27 January 1997 an investigating judge of the Osijek County Court (istražni sudac Županijskog suda u Osijeku) terminated the investigation, pursuant to the General Amnesty Act.
In the meantime, on 14 September 1994, the Beli Manastir police lodged a criminal complaint with the Osijek County State Attorney’s Office (Županijsko državno odvjetništvo Osijek) against eight persons, including the applicant, in which it was alleged that the applicant had participated in an act of genocide. On 18 June 1996 the Osijek County State Attorney’s Office asked the Osijek County Court (Županijski sud u Osijeku) to open an investigation.
On the same day the Osijek County Court opened such an investigation in respect of the applicant and seven other persons on charges of genocide (Article 119 of the Criminal Code), on account of a reasonable suspicion that between August 1991 and September 1994 they had participated in the occupation of the village of Branjih Vrh and in the persecution of the ethnic Croats who at the time lived there.
On 27 June 1996 the Osijek County Court issued an arrest warrant in respect of the suspects, including the applicant.
On 30 December 1996 the Osijek County State Attorney’s Office charged the applicant and a number of other individuals with genocide in the Osijek County Court.
On 16 June 1997 the same court ordered them to be tried in absentia.
In 1999 an amendment of the Code of Criminal Procedure was introduced providing that no compensation was to be granted in connection with the detention of persons against whom criminal proceedings were terminated pursuant to the General Amnesty Act of 1996.
The applicant was arrested on 12 September 2001 and placed in pre-trial detention based on the suspicion that he had committed the war crime of genocide. He was released on 29 November 2001.
On 13 February 2002 the Osijek County State Attorney’s Office re-classified the offence with which the applicant was charged from genocide to the one of armed rebellion.
On 16 May 2002 the Osijek County Court terminated the proceedings against the applicant, pursuant to the General Amnesty Act, in view of the re-classification of the offence.
On 24 May 2002 the Osijek County State Attorney’s Office lodged an appeal with the Supreme Court against the above decision arguing that they had re-classified the indictment in respect of only three of the accused, but not in respect of the applicant and that therefore there had been no ground for terminating the proceedings against the latter.
On 1 September 2004 the Supreme Court quashed the first-instance decision terminating the criminal proceedings against the applicant and remitted the case to the Osijek County Court.
On 16 December 2004 the Osijek County Court again terminated the proceedings against the applicant, pursuant to the General Amnesty Act, in view of the re-classification of the offence. No appeal was lodged against this decision and it became final.
On 13 October 2006 the applicant brought a civil action against the State before the Beli Manastir Municipal Court, seeking damages for his detention between 12 September and 29 November 2001. He argued that the criminal proceedings in connection with which he had been detained had been instituted on charges of genocide and that the State Attorney’s Office had re-classified the offence to one of armed rebellion only to prevent the applicant and other persons in the same situation from obtaining damages for their detention. He referred in this respect to the fact that under the General Amnesty Act persons against whom criminal proceedings were terminated on the basis of that Act had no right to compensation for their detention while all other persons who were detained in connection with criminal proceedings not ending in conviction had the right to compensation for their detention.
On 2 April 2008 the Municipal Court awarded the applicant compensation finding that the applicant had been placed in detention in connection with charges of genocide and that therefore the General Amnesty Act was not applicable when it came to the question of compensation for detention.
On appeal this judgment was reversed by the Osijek County Court on 2 October 2008. The relevant part of the decision reads:
“The first-instance court disregarded the fact that the issue of whether detention was justified is to be assessed in respect of the final outcome of the proceedings, and not in respect of the legal basis for ordering detention, irrespective of the criminal offence with which the plaintiff had been charged at the time he was detained.
Since the criminal proceedings against the plaintiff in respect of the criminal offence of armed rebellion committed between 17 August 1990 and 23 August 1996 were terminated on the basis of the General Amnesty Act, this court holds that the plaintiff is not entitled to compensation for any type of damages on account of unjustified detention (Article 484 (a) of the Code of Criminal Procedure).”
On 10 November 2008 the applicant lodged a constitutional complaint against the Osijek County Court’s judgment of 2 October 2008.
He argued that the Osijek County State Attorney’s Office had re-classified the offence in 2002 to one of armed rebellion only to prevent him from obtaining compensation in connection with his detention in 2001. He submitted that he had been detained at a time when he was accused of genocide and that therefore the General Amnesty Act was not applicable as regards his right to compensation in connection with his detention.
He further complained that he had been tried twice in respect of the same offence because the criminal proceedings against him had firstly been terminated in 1997 and then again in 2004.
On 27 October 2010 the Constitutional Court dismissed the applicant’s constitutional complaint as regards his complains concerning his right to compensation as ill-founded. As regards the complaint about being tried twice, the Constitutional Court held that it could not examine such a complaint since it had no connection with the civil proceedings instituted by the applicant.
The relevant part of the Criminal Code (Opći krivični zakon Republike Hrvatske, Official Gazette nos. 53/1991 and 31/1993 – integral version – in force until 31 December 1997) read:
“Whoever, with the intention of destroying a national, ethnic, racial or religious group in whole or in part, orders the killing or infliction of grave bodily injuries or serious harm to the physical or mental health of the members of such a group, the compulsory displacement of a population or the placing of such a group in conditions which would lead to its extinction in whole or in part, or who orders measures which would prevent births within such a group or the compulsory displacement of children to another group, as well as whoever, with the same intention, commits any of the foregoing acts shall be sentenced to between five and twenty years’ imprisonment.”
“(1) Whoever participates in an armed rebellion which is aimed at harming the constitutionally established State and social order or the security of the Republic of Croatia shall be sentenced to at least three years’ imprisonment.
(2) An organiser or leader of the armed rebellion shall be sentenced to at least five years’ imprisonment.”
The relevant part of the Code of Criminal Procedure enacted on 2 June 1999 and amended on 27 October 1999 (Official Gazette nos. 58/1999 and 112/1999) reads:
“Special laws and decisions adopted as acts of mercy by which perpetrators of criminal offences were pardoned or granted amnesty in respect of criminal offences committed between 17 August 1990 and 23 August 1996 do not serve as a basis for the application of Articles 476 to 484 of this Act.”
Articles 476 to 484 of that Act set forth the conditions and procedures in respect of the right to compensation in connection with detention and sentences ordered in the context of criminal proceedings that ended in acquittal or unjustified conviction.
The relevant part of the Act on Amnesty from Criminal Prosecution and Proceedings in Respect of Criminal Offences Committed during the Armed Conflicts and the War against the Republic of Croatia of 25 September 1992 (Official Gazette no. 58/1992, Zakon o oprostu od krivičnog progona i postupka za krivična djela počinjena u oružanim sukobima i u ratu protiv Republike Hrvatske) reads:
“Criminal prosecution of perpetrators of criminal offences [committed] during the armed conflicts, the war against the Republic of Croatia or in connection with these conflicts or war, committed between 17 August 1990 and the day when this Act comes into force, shall be discontinued. In respect of these offences criminal prosecution and criminal proceedings shall not be instituted. Where criminal proceedings have been instituted, a court shall terminate them of its own motion. Where a person concerned by amnesty under paragraph 1 of this section has been detained, he or she shall be released.”
“Amnesty under section 1 of this Act shall not be granted to perpetrators of the criminal offences in respect of which the Republic of Croatia is obliged to prosecute under the international law.”
“A state attorney may lodge an appeal within twenty-four hours from the service of a decision under section 1 paragraphs 2 and 3 of this Act, where she or he considers that the decision contravenes section 2 of this Act.”
The relevant part of the amendments to the above Act of 6 June 1995 reads:
“In section 1 paragraph 1 of the Act on Amnesty from Criminal Prosecution and Proceedings in Respect of Criminal Offences Committed during the Armed Conflicts and the War against the Republic of Croatia (Official Gazette no. 58/92) the words ‘the day when this Act comes into force’ are to be replaced by the words ‘10 May 1995’.”
The relevant part of the General Amnesty Act of 24 September 1996 (Official Gazette no. 80/1996, Zakon o općem oprostu) reads:
“This Act gives general amnesty from criminal prosecution and proceedings to the perpetrators of the criminal offences committed during the aggression, armed rebellion or armed conflicts and in connection with the aggression, armed rebellion or armed conflicts in the Republic of Croatia.
Amnesty shall not apply to the execution of final judgments in respect of perpetrators of the criminal offences under paragraph 1 of this section.
Amnesty from criminal prosecution and proceedings shall apply to offences committed between 17 August 1990 and 23 August 1996.”
“Criminal prosecution or criminal proceedings shall not be instituted against the perpetrators of the criminal offences under section 1 of this Act.
Where criminal prosecution has already commenced it shall be discontinued and where criminal proceedings have been instituted a court shall issue a decision terminating the proceedings of its own motion.
Where a person granted amnesty under paragraph 1 of this section has been detained, he or she shall be released.”
“Amnesty under section 1 of this Act shall not be granted to perpetrators of the gravest breaches of humanitarian law, which have the character of war crimes, namely, the criminal offence of genocide under Article 119 of the Basic Criminal Code of the Republic of Croatia (Official Gazette no. 31/1993, consolidated text, nos. 35/1993, 108/1995, 16/1996 and 28/1996); war crimes against the civilian population under Article 120; war crimes against the wounded and sick under Article 121; war crimes against prisoners of war under Article 122; organising groups [with the purpose of committing genocide] and abetting genocide and war crimes under Article 123; unlawful killing and wounding of the enemy under Article 124; unlawful taking of possessions from the dead or wounded on the battleground under Article 125; use of unlawful means of combat under Article 126; offences against negotiators under Article 127; cruel treatment of the wounded, sick and prisoners of war under Article 128; unjustified delay in repatriation of the prisoners of war under Article 129; destruction of cultural and historical heritage under Article 130; inciting war of aggression under Article 131; abuse of the international symbols under Article 132; racial and other discrimination under Article 133; establishing slavery and transferring slaves under Article 134; international terrorism under Article 135; putting at risk persons under international protection under Article 136; taking hostages under Article 137 and the criminal offence of terrorism under the provisions of international law.
Amnesty shall not be granted to perpetrators of other criminal offences under the Basic Criminal Code of the Republic of Croatia (Official Gazette no. 31/1993, consolidated text, nos 35/1993, 108/1995, 16/1996 and 28/1996) and the Criminal Code of the Republic of Croatia (Official Gazette no. 32/1993, consolidated text, nos. 38/1993, 28/1996 and 30/1996) which were not committed during the aggression, armed rebellion or armed conflicts and are not connected with the aggression, armed rebellion or armed conflicts in the Republic of Croatia.
...”
A state attorney may lodge an appeal against a court decision under section 2 of this Act where a court has granted amnesty in favour of perpetrators of criminal offences in respect of which this Act gives amnesty within the legal classification of the criminal offence by a state attorney.”


ITEMID: 001-76181
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: CHAMBER
DATE: 2006
DOCNAME: CASE OF ERKAN v. TURKEY
IMPORTANCE: 4
CONCLUSION: Violation of P1-1;Pecuniary damage - financial award;Non-pecuniary damage - finding of violation sufficient;Costs and expenses partial award - domestic proceedings;Costs and expenses partial award - Convention proceedings
TEXT: 4. The applicant was born in 1954 and lives in Ankara.
5. On an unspecified date in 1990 the General Directorate of National Roads and Highways expropriated a plot of land belonging to the applicant in Ankara in order to build the Ankara Central Motorway. The authorities paid him the value of the land, assessed by a committee of experts, when the expropriation took place.
6. Following the applicant’s request, on 21 April 1994 the Ankara Civil Court awarded him additional compensation plus interest at the statutory rate applicable.
7. On 11 December 1995 the Court of Cassation upheld that judgment.
8. On 28 January 1998 the amount of 313,000,000 Turkish liras (TRL) was paid to the applicant.
9. The relevant domestic law and practice are set out in the case of Akkuş v. Turkey (judgment of 9 July 1997, Reports of Judgments and Decisions 1997IV, §§ 13-16).


ITEMID: 001-4929
LANGUAGEISOCODE: ENG
RESPONDENT: FIN
BRANCH: ADMISSIBILITY
DATE: 1999
DOCNAME: VILHUNEN v. FINLAND
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Georg Ress
TEXT: The applicant is a Finnish national, born in 1960 and resident in Espoo. He is represented before the Court by Mr Matti Wuori, a lawyer practising in Helsinki.
On 3 May 1994, N was charged before the Helsinki District Court (käräjäoikeus, tingsrätt) with aggravated narcotics offences concerning at least 30 kilos of cannabis (case R 94/2284). He had stated to the police that he had committed several narcotics offences in 1992-1994 and incriminated several other people during the police investigations. The case was adjourned until 17 May 1994, as the police investigations had not been finished.
N's case was heard on 17 and 31 May 1994. N confessed to the District Court that he had dealt in about 200 kilos of cannabis. The case was adjourned until 14 June 1994 as the police investigations continued.
On 14 June 1994, N was charged with an additional aggravated narcotics offence which he confessed to. The case (R 94/2284) was again adjourned until 21 June 1994.
At the hearing on 21 June 1994, N repeated all his statements to the police and stated that he would stand by them. N's case was joined with another case (R 94/1409).
At some point during the proceedings against N, the applicant had been detained on remand on suspicion of aggravated narcotics offences, apparently on the basis of the information revealed to the police by N. On 5 July the applicant was charged with 13 aggravated narcotics offences before the District Court. (The file is incomplete as regards the beginning of the proceedings against the applicant.)
On 5 July 1994, there was also a hearing in the case R 94/1409 against N and twelve other accused, concerning several aggravated narcotics offences. Several charges were brought against N and the co-accused. The case was adjourned until 19 July 1994.
At the hearing on 19 July 1994 before the District Court the applicant's case, which had so far been heard separately from N's case, was joined to the latter. N stated that he would not repeat all his statements made in the police investigations. The applicant's legal counsel said that he intended to put some questions to N later.
The next hearing took place on 2 August 1994. When asked by the applicant's legal counsel, N stated that he had not dealt in drugs with the applicant.
On 16 August 1994, there was a further hearing in the case, which was again adjourned until 30 August 1994. (The complete minutes of that hearing have not been filed.)
In a hearing on 30 August 1994, yet another case was joined to the applicant's case. There were now a total of 20 accused, including the applicant and N. N stated that at this stage he did not want to repeat everything he had said about some of the accused.
On 13 September 1994, there was another hearing in the case before the District Court. The public prosecutor submitted several police investigation reports to the court. The applicant's legal counsel stated that it was his impression that according to N the applicant had not dealt in any drugs. When asked by the counsel, N referred to what he had said before. The case was adjourned until 27 September 1994.
On 27 September 1994 the case was heard again. The public prosecutor submitted new police investigation reports to the court. N refused to comment on any of his statements and stated that he would remain silent. He also stated that he would not answer questions put to him as he “wanted to reserve an opportunity for all the innocent co-accused to tell the truth”. The case was adjourned until 11 October 1994.
The applicant's case was heard again on 11 October 1994 and it was adjourned until 25 October 1994.
At the hearing on 25 October 1994, co-accused H confessed that he had been one of the two main financiers of the drug trafficking. The other was allegedly N. The applicant's legal counsel stressed that N had not stated anything that would incriminate the applicant in the case. The District Court convicted N of 13 aggravated narcotic offences and some other offences and sentenced him to twelve years and six months' imprisonment. H was convicted of ten aggravated narcotics offences and some other offences and sentenced to eleven years' imprisonment. Another co-accused was also convicted of narcotics offences and sentenced to a term of imprisonment. The rest of the case was adjourned until 8 November 1994.
On 8 November 1994 the case was heard again. The public prosecutor submitted to the District Court a report, dated on 7 November 1994, concerning telecommunications between the accused. The applicant's counsel gave his closing speech and commented on the report on telecommunications, without requesting a further adjournment on the basis of the report. The District Court convicted the applicant of eleven aggravated narcotics offences, committed in complicity with N and another co-accused, and convicted him to twelve years' imprisonment. The conviction was mainly based on N's statements supported by some co-accused's and witnesses' statements and by circumstantial evidence. The applicant was detained on remand.
The applicant appealed to the Helsinki Court of Appeal (hovioikeus, hovrätt), requesting an oral hearing before the Court of Appeal. He stated, inter alia, that N had repeated several times during the proceedings before the District Court that the applicant had not dealt in narcotics with N. Furthermore, N's statements in the police investigations in so far as concerned the applicant had been very vague and had had no reference to any factual situation. The applicant also argued against the value of the report on telecommunications as evidence, as the report had appeared to be incomplete. The applicant named several persons that he wished to be heard before the Court of Appeal: e.g. a co-accused S and new witnesses J and V as regards the value of the report on telecommunications as evidence, and the co-accused H as regards his confession. On 27 April 1995 the Court of Appeal upheld the District Court's judgment without holding an oral hearing.
On 8 September 1995 the Supreme Court (korkein oikeus, högsta domstolen) refused the applicant leave to appeal.