ITEMID: 001-115007
LANGUAGEISOCODE: ENG
RESPONDENT: BGR
BRANCH: CHAMBER
DATE: 2012
DOCNAME: CASE OF LENEV v. BULGARIA
IMPORTANCE: 3
CONCLUSION: Violation of Article 3 - Prohibition of torture (Article 3 - Torture) (Substantive aspect);Violation of Article 3 - Prohibition of torture (Article 3 - Effective investigation) (Procedural aspect);Violation of Article 13 - Right to an effective remedy (Article 13 - Effective remedy);Violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for correspondence;Respect for private life);Violation of Article 13 - Right to an effective remedy (Article 13 - Effective remedy);Violation of Article 38 - Examination of the case-{general} (Article 38 - Obligation to furnish all necessary facilities);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage)
JUDGES: David Thór Björgvinsson;Ineta Ziemele;Krzysztof Wojtyczek;Päivi Hirvelä;Paul Mahoney;Vincent A. De Gaetano;Zdravka Kalaydjieva
TEXT: 7. The applicant was born in 1958 and lives in Sofia.
8. At about 6.00 p.m. on 1 June 1999 the National Service for Combating Organised Crime (“Национална служба ‘Борба с организираната престъпност’”) of the Ministry of Internal Affairs was given orders to arrest the applicant in connection with information gathered by colonel B.B., a senior police officer in charge of investigating the assassination on 2 October 1996 of the former Prime Minister of the Republic of Bulgaria, Mr Andrey Lukanov (see Lukanov v. Bulgaria, 20 March 1997, §§ 1 in fine and 7 in fine, Reports of Judgments and Decisions 1997II). The service devised a plan and assigned a number of officers to the operation.
9. According to the findings of the military courts which later examined a set of criminal charges against three officers who took part in that operation (see paragraphs 56 and 63 below), two officers were dispatched to the applicant’s address in advance to inspect the surroundings and check whether the applicant was at home. A group of five officers was given the task of carrying out the actual arrest. At about 8.30 p.m. that group arrived at the applicant’s home in a block of flats in Sofia, where they joined the two officers previously sent there. The officers had three cars. One of them was a Volkswagen Transporter minivan that they parked at fifteen to twenty metres from the front entrance of the applicant’s building. Shortly before 9 p.m. four officers went up to the applicant’s flat, two remained in the minivan, and one was left at the building’s entrance. The four officers who went up rang the applicant’s doorbell. His fourteenyear old daughter answered the door. The applicant showed up at the door moments after that. The officers told him that he was to accompany them to the police station. The applicant went back in, took his passport and a jacket, and followed the officers down. Two officers escorted the applicant in the lift. The two others went inside his flat and remained there until about 11.00 p.m. to prevent the persons present in the flat – the applicant’s family and two neighbours – to make telephone calls. Downstairs, the two officers escorting the applicant were joined by the officer who had remained near the building’s entrance. When the group was five or six metres from the minivan, one of the officers who was inside the vehicle opened its side sliding door. At that point, the applicant abruptly tried to move to the back of the minivan instead of its door. The two officers who were escorting him grabbed him by the arms and placed them behind his back. The applicant resisted the officers’ attempt to push him into the minivan. One officer tripped him and the applicant fell, face down, on the minivan’s floor, his legs remaining outside. The officer inside the minivan tried to pull him in. The minivan set off and, at the same moment, an officer who remained on the street pushed its side sliding door to close it. As the applicant’s feet were still hanging outside, he was hit by the door. The officers inside the minivan kept on trying to close the minivan’s door and handcuff the applicant, who resisted, keeping his arms under his body and trying to get up. The door could not be closed as the applicant’s feet protruded outside. The officers eventually managed to pull the applicant’s legs in and handcuff him. A hood was then placed on his head to blind him, so that he could not see where he was being taken.
10. The applicant denied that he had put up any resistance to his arrest, and asserted that the above findings had been based only on evidence given by the police officers involved. According to him, when he approached the minivan he was hit on the neck and fell inside, where he was handcuffed and hooded.
11. The minivan set off for Koprivshtitsa, a small town about one hundred kilometres east of Sofia. It seems that three officers were with the applicant in the back of the minivan, and a fourth one was driving it, but it is equally possible that only two of the officers were in the back and the third one was sitting beside the driver.
12. According to the findings of the military courts, throughout the trip the applicant was lying, undisturbed, on the minivan’s floor, and the officers were sitting around him, monitoring his behaviour. The minivan did not stop en route, and arrived in Koprivshtitsa at about midnight.
13. According to the applicant, during the trip the officers asked him questions and hit him. The minivan stopped several times en route. The questioning and the beating continued during those stops. The applicant received blows with solid objects to all parts of his body save for his face and genitals. During one of the stops one of the officers held the applicant’s legs and another pushed the minivan’s sliding door to strike them. The applicant was hit in the ankles. At one point, pressure was applied to his eyes. The applicant lost consciousness several times.
14. In Koprivshtitsa, the applicant was taken out of the minivan and into a house used by the police as a “secret base”. According to him, the illtreatment continued there. Objects were inserted under two of his nails. Solid objects were placed between his fingers and his hand was squeezed.
15. According to minutes drawn up by the police, the applicant was questioned between 3.45 a.m. and 7.55 a.m. on 2 June 1999 by colonel B.B. in relation to suspicions that he had been involved in the assassination of Mr Lukanov.
16. According to the transcription of a tape on which the questioning was secretly recorded by the police (see paragraphs 2628 below), colonel B.B. addressed the applicant as follows:
“Be careful, if you make a mistake, it will be an enormous one. If you want to go [as a bull] with his horns forward, that’s your decision. But then we’ll also go forward with our horns. And our horns may turn out to be much sharper than yours ... This is because we took our time to sharpen them so as to make them prick cruelly ... If you want to play the hero – please, go ahead ... But I would say that this evening is a fateful one for you. It is decisive for you. A life to gain or lose and not only your life ... And this is the reason why this conversation is taking place here and not elsewhere ... Confession and repentance are the only chance for you ...”
17. At some point during the interrogation the applicant made statements in which he confessed that he had taken part in a plot to assassinate Mr Lukanov.
18. At about 10 a.m. on 2 June 1999 the applicant was taken back to Sofia in a police vehicle. He was again hooded. In Sofia he was brought before an investigator who charged him with complicity to premeditated murder.
19. Four other persons, including a Mr A.V., who had allegedly ordered Mr Lukanov’s assassination, and a Mr A.R., who had allegedly carried it out by shooting Mr Lukanov dead, were arrested and illtreated by the police at the end of May and in June 1999, and also charged. Both of them also made confessions.
20. On 2 June 1999, upon being admitted to the detention facility of the Sofia Investigation Service, the applicant was examined by Dr D.D., the facility’s onduty medical doctor, who noted numerous haematomas in the area of his armpits, on his torso under the arms, on his wrists, on his left thigh, on his leg below the knee, and on both of his ankles. She also found open wounds on the applicant’s left wrist and the index finger of his left hand. Her estimation was that all those injuries had been sustained one or two days earlier. When interviewed by the authorities in relation to that on 26 July 1999, a colleague of Dr D.D. said that such examinations were being carried out routinely on all incoming detainees and did not involve any forensic findings as to the origin of any injuries found on the detainees. Such findings could be made only by forensic medical doctors, and the usual practice was to refer a detainee suspected of having been subjected to physical violence to the Chair of Forensic Medicine of the Medical Faculty of the Sofia University of Medicine. When interviewed by the authorities in relation to that on 17 August 1999, Dr D.D. said that when examined by her on 2 June 1999 the applicant had told her that he had been illtreated after his arrest.
21. In spite of his request, the applicant was not allowed to contact a lawyer of his own choosing. An ex officio counsel was appointed to represent him. The counsel allegedly did not heed the applicant’s request to contact his relatives and ask them to arrange for a forensic medical examination.
22. About two weeks after the applicant’s arrest his mother and wife were allowed to visit him. After their meeting, the applicant’s mother sent letters to the Chief Prosecutor, the Minister of Internal Affairs, the President, the Prime Minister and the media, describing traces of serious violence which she had seen on the applicant and requesting an adequate reaction by the authorities.
23. On 23 July 1999 the applicant was taken, apparently in the face of opposition by the investigator in charge of his case, to the Chair of Forensic Medicine of the Medical Faculty of the Sofia University of Medicine for examination. The doctors’ findings included the following: an injury measuring two to one centimetres to the parietal area of the skull; injuries to both wrists; a hematoma on the thumbnail of the left hand; an injury to the fingertip and the nail of the index of the left hand (with half of the nail missing); an injury to the ring finger; two injuries to the front of the left leg under the knee; six injuries to the front of the right leg under the knee.
24. On 26 July 1999 two investigators, assisted by a medical doctor from the Chair of Forensic Medicine of the Medical Faculty of the Sofia University of Medicine and a technical assistant, examined the applicant in the presence of two attesting witnesses. They noted the following injuries on him (all of them in various stages of recovery): an injury measuring three to two centimetres to the parietal area of the skull; an injury measuring one and a half by one and a half centimetres to the inner left elbow; an injury measuring three by one and a half centimetres to the outer left elbow; two parallel linear injuries two centimetres long each to the outer left wrist; a similar injury four centimetres long to the inner left wrist; an eightmillimetrelong hematoma under the thumbnail of the left hand; partially missing nail and swelling of the index of the left hand; a ninemillimetrelong linear injury between the first and the second phalanges of the ring finger of the left hand; six injuries each measuring one or two by two centimetres to the front and inner surfaces of the lower right leg, situated in the area between seven centimetres below the knee and ten centimetres above the ankle; two similar injuries to the lower left leg; and swelling of the left ankle.
25. The applicant remained in pre-trial detention until late 2000, when he was released on bail.
26. The applicant’s interrogation on 2 June 1999 in the house in Koprivshtitsa was secretly recorded. This was apparently done without the applicant’s knowledge and without a judicial warrant. Judicial authorisation to carry out secret recordings in the house in Koprivshtitsa in relation to the applicant was only given on 3 June 1999 by the President of the Sofia City Court, and concerned a tenday period beginning on 3 June 1999.
27. A visual examination of a photocopy of the document containing the police request for a judicial warrant and the judge’s decision shows that the request was dated 1 June and that, apparently, it was not submitted to the judge before 3 June. It can also be seen that the initial proposal by the police was for a period starting on 1 June 1999 and that the number “3” was then written over the number “1”.
28. In January 2002 a transcription of the recording was drawn up. According to the applicant, the transcription did not reflect the whole interrogation.
29. At the applicant’s trial (see paragraph 33 below), the prosecution sought to rely on the recording. On 11 March 2003, noting that it had been made surreptitiously and without a valid warrant, the Sofia City Court refused to admit it in evidence.
30. In May, June and July 1999 the police allegedly made statements to the media, implying that they had arrested the persons responsible for Mr Lukanov’s assassination.
31. On 26 May 2000 the Minister of Internal Affairs, replying in Parliament to a remark that the police had repeatedly made groundless assertions that they had found Mr Lukanov’s assassins, said that since his appointment as Minister he had only once asserted that the assassin had been arrested and that had been the day when Mr A.R. (one of the applicant’s coaccused) had been detained.
32. In the first months after their arrests, the applicant and his two coaccused maintained their initial confessions and gave evidence in this sense to the investigators in charge of their case. Later, they changed their position and stated that they had never been involved in a plot to assassinate Mr Lukanov and that their confessions had been extracted under torture.
33. During the trial, which started in 2001, the Sofia City Court admitted in evidence medical certificates and witness evidence concerning the illtreatment to which the applicant had been subjected on 1 or 2 June 1999.
34. In a judgment of 28 November 2003 the Sofia City Court found the applicant and his four co-accused guilty of Mr Lukanov’s assassination, and sentenced all of them to life imprisonment (without parole for the applicant’s coaccused and with parole for the applicant). The court relied heavily on the confessions made by the applicant and two of his coaccused.
35. Addressing the argument of the defence that those confessions had been extracted under torture, the court accepted that there existed solid evidence that the police had used serious physical violence and psychological harassment against them immediately after their arrests. The court observed that such acts were unacceptable and called for disciplinary and, if appropriate, criminallaw measures against the officers concerned.
36. However, the court went on to observe that the applicant and his two coaccused had maintained their confessions for a long period of time, and that they had not been ill-treated after 2 June 1999. The applicant had maintained his confession in the course of eleven interviews held between 8 June and 6 October 1999 in the presence of counsel of his own choosing, retained by him on an unspecified date. The court considered that it could therefore rely on the confessions made during those interviews, which had been conducted by investigators.
37. The applicant and the other accused appealed.
38. The Sofia Court of Appeal court heard expert evidence concerning the illtreatment to which the applicant and his two coaccused had been subjected.
39. On 8 June 2006 the Sofia Court of Appeal quashed the Sofia City Court’s judgment and acquitted all accused on the charges concerning Mr Lukanov’s assassination.
40. The court analysed the evidence concerning the way in which the applicant had been treated on 1 or 2 June 1999, and concluded that he had been subjected to torture in breach of the Constitution and Article 3 of the Convention. The applicant and his coaccused had confessed under illtreatment which had left longlasting marks on their bodies. The pain from the injuries had not subsided for several months. It was moreover significant that when one looked at the medical evidence concerning each of the three accused, one could see that the higher the intensity of the torture, the longer the accused concerned had maintained his confession. The applicant, who had suffered the most serious injuries, had been the most consistent in maintaining his confession.
41. The court went on to say that there was evidence of an attempt to delay the proper medical examination of the applicant and his coaccused. During that time, they had been questioned by investigators although their bodies had carried marks of illtreatment. The investigators’ good faith was therefore open to doubt.
42. The court therefore decided that the confessions should not be taken into account and, analysing the remaining evidence, concluded that the charges had not been made out.
43. On 15 March 2007 the Supreme Court of Cassation, hearing the case on an appeal by the prosecution, upheld the acquittal (реш. № 161 от 15 март 2007 г. по н. д. № 843/2006 г., ВКС, І н. о.). It agreed with the finding that the applicant and his coaccused had been subjected to illtreatment, and held that it could not admit the resulting confessions, which were a “fruit of the poisonous tree”, because that would be in breach of the right to a fair trial. The court went on to say that in a democratic legal system unlawful attempts to extract confessions, as in the case at hand, were in the final analysis harmful to the prosecution’s case.
44. On 27 July 1999 the Sofia Military Prosecutor’s Office opened a preliminary investigation in relation to the applicant’s alleged ill-treatment. During the following month the military investigation authorities interviewed a number of people and obtained a medical expert report on the applicant’s injuries and the manner in which they had been inflicted.
45. The report, filed on 1 October 1999, reviewed the medical findings of the examinations on 2 June and 23 and 26 July 1999 (see paragraphs 20, 23 and 24 above). The experts said that the injury to the applicant’s head had been caused by a blow with or against a blunt object. The injuries to his left elbow, his left ring finger and legs below the knees had been caused in a similar way. The lack of detailed findings in relation to them in the 2 June 1999 examination showed that they had either not been present at that point and had occurred later, or that they had not been properly noted. The injuries to the wrists had been caused by handcuffs. The injuries to the nail of the left index finger had been caused by a frontal traumatic impact to the finger. As the injury had been inflicted a long time before the examination which had noted it, its exact cause could not be determined: it could have consisted of a blow to the distal phalange, the insertion of an object under the nail, or the removal of the nail by the application of pressure to its extremity. The hematoma on the left thumbnail had been caused by a blow or by the pressing of the thumb between hard blunt objects. The hematomas noted during the examination on 2 June 1999 had been caused by blows with hard blunt objects.
46. On 14 October 1999 the proceedings were stayed because one of the officers who had allegedly ill-treated the applicant was abroad on an official mission and could not be interviewed. On 5 January 2000, following his return, the proceedings were resumed.
47. Between January and May 2000 the investigator in charge of the case charged three officers who had travelled with the applicant in the police minivan which had taken him to the house in Koprivshtitsa with causing him light bodily harm, contrary to Article 131 § 1 (2) in conjunction with Article 130 § 1 of the Criminal Code 1968 (see paragraph 76 below).
48. The investigator also obtained an additional medical expert report with a view to clarifying the exact origin of the applicant’s injuries and elucidating the discrepancies in the medical findings made by Dr D.D. on 2 June 1999 and the findings of the forensic doctors of 23 July 1999. However, the report, filed on 1 March 2000, was unable to reach more definite conclusions on that point. Nor were the experts able to say – without being presented with clearer information – exactly what kind of injuries would be caused by an intensive eighthour beating.
49. On 10 May 2000 the investigator proposed that the three officers be brought to trial. However, on 26 May 2000 the Sofia Military Prosecutor’s Office referred the case back for additional investigation. It observed, inter alia, that no information had been gathered about the officers in charge of the applicant between his arrival in Koprivshtitsa and his return to Sofia the next day.
50. On 8 December 2000 the proceedings were stayed once again, because one of the applicant’s co-accused, who had also been taken to the house in Koprivshtitsa, had left the country and could not be interviewed as a witness. They were resumed on 2 July 2001.
51. On 4 July 2001 the investigator again proposed that the three officers be brought to trial. However, on 30 July 2001 the Sofia Military Prosecutor’s Office once more referred the case back for additional investigation. It observed that the charges did not specify which of the three officers had administered which blows to which parts of the applicant’s body.
52. On 4 October 2001 the investigator again sent the case to the Sofia Military Prosecutor’s Office, which again referred it back on 20 November 2001 for additional investigation, saying that the charges did not specify the exact manner in which the officers had caused the applicant’s injuries.
53. On 28 June 2002 the Sofia Military Prosecutor’s Office indicted the three officers, but on 8 July 2002 the Sofia Military Court referred the case back for additional investigation. On 10 February 2003 the Sofia Military Prosecutor’s Office again indicted the officers, and several days later the Sofia Military Court again referred the case back. It appears that between 2003 and 2005 the case lay dormant with the military prosecuting and investigating authorities.
54. On an unspecified date in 2005 the Sofia Military Prosecutor’s Office submitted an indictment against the three officers to the Sofia Military Court.
55. The trial took place on 28 February, 8 June, 19 September and 26 October 2006. At the outset the applicant made a civil claim against the officers, seeking 100,000 Bulgarian levs, plus interest, in nonpecuniary damages.
56. In a judgment of 30 October 2006 the Sofia Military Court acquitted the officers and rejected the applicant’s civil claim. The court started by setting out its findings of fact (see paragraphs 9 and 12 above). It went on to hold that, based on those findings, the officers’ actions could not be regarded as a criminal offence because, although causing the applicant bodily harm, they had been justified under Article 12a of the Criminal Code (see paragraph 75 below). The court reproduced in its judgment the applicant’s allegations concerning his ill-treatment inside the minivan and in Koprivshtitsa, and said that those allegations, if true, meant that the applicant would have had injuries all over his body and would carry horrifying marks of illtreatment. However, the findings of Dr D.D. (see paragraph 20 above) had not revealed such marks and were fully consistent with the version put forward by the three accused officers. Dr D.D. had not recorded multiple injuries to the applicant’s head, but only one injury to the central parietal area. It was implausible to assume that all of the alleged numerous blows to the applicant’s head had been administered to a single spot. There were no recorded injuries to the front or the back of his torso, belly or feet, or injuries to his eyes caused by pressing. It could therefore be accepted that the officers’ account as to the amount of force that they had used to restrain the applicant and handcuff him was truthful, and that the use of force has stopped after the applicant had been subdued. The officers’ aim had been to arrest the applicant, who they believed had committed a criminal offence, and to bring him before the appropriate authority – colonel B.B. The officers had also sought to prevent the applicant from alerting his accomplices. In view of his resistance, there had been no other way of carrying out the arrest. The use of force had also been justified under section 78(1)(1) of the Ministry of Internal Affairs Act 1997 (see paragraph 71 below) because the applicant had failed to heed a lawful order and had put up resistance. The three officers had not used disproportionate force. The applicant had been arrested in relation to a very serious offence – the assassination of a former prime minister –, had resisted arrest, and had not sustained very serious injuries. The use of force had stopped immediately after he had been subdued. Since the officers’ actions had not constituted an offence and had amounted to a lawful use of force, the applicant’s civil claim was to be rejected.
57. On 14 November 2006 the prosecution appealed against the acquittal to the Military Court of Appeal. The applicant also appealed against the acquittal and the rejection of his civil claim.
58. The Military Court of Appeal heard the appeal on 29 January 2007. It drew the officers’ attention to the fact that the limitation period for prosecuting them on the charges against them – seven and a half years – had expired on 1 December 2006. The court went on to say that the proceedings could continue only if the officers were to waive the statute of limitations (see paragraph 78 below). All three of them stated that they wished to have the charges against them determined despite the expiry of the limitation period. The court then heard the parties’ arguments and announced that it would hand down its judgment in due course.
59. However, on 20 April 2007 the court found that it could not decide the case without rehearing the applicant and colonel B.B., and called them to testify. At the next hearing, held on 9 May 2007, counsel for one of the police officers requested one of the judges to withdraw from the case. She argued that he had shown bias against her client. The court said that it did not find any grounds for that but that it would accede to her request to avoid any suspicions of partiality. As a result, the appellate proceedings had to start anew, as required under the principle of immediacy. On 31 May 2007 the court, sitting in a new formation, decided to rehear the applicant; this time, however, it did not mention colonel B.B.
60. When appearing in court on 9 May 2007, colonel B.B. apparently again asserted in front of journalists that the applicant and his co-accused had assassinated Mr Lukanov.
61. The new formation heard the appeal on 6 June 2007. It likewise drew the officers’ attention to the fact that the limitation period for prosecuting them had expired, and the officers reiterated that they agreed to waive the statute of limitations. The court then heard the applicant as a witness, and admitted in evidence the judgments of the Sofia Court of Appeal and the Supreme Court of Cassation in the criminal proceedings against the applicant (see paragraphs 3943 above). It turned down a request by the officers’ defence to recall colonel B.B. and several other witnesses to the stand, finding that this would be superfluous.
62. At the next hearing, held on 11 July 2007, the court turned down a request by counsel for one of the officers for a fresh medical expert report, observing that the medical evidence that had already been adduced – which included the results of the medical examinations of the applicant on 2 June and 23 July 1999 (see paragraphs 20 and 23 above) – was sufficient. The court reheard the officers and the parties’ oral arguments.
63. In a final judgment of 30 July 2007 (реш. № 113 от 30 юли 2007 г. по н. д. № 215/2006 г., ВАпС), the Military Court of Appeal upheld the officers’ acquittal. It fully agreed with the lower court’s findings of fact, saying that they were based on a proper analysis of the statements of the three accused, the evidence given by the applicant, the medical expert report obtained in the course of the proceedings, and the notes made by Dr D.D. when she had examined the applicant on 2 June 1999. The court went on to say that the indictment did not contain factual allegations in respect of one of the three officers, who was therefore to be acquitted on the basis that he had not used any force in respect of the applicant. The court did not agree with the lower court that Article 12a of the Criminal Code was applicable, holding that this provision referred exclusively to the arrest of offenders who have been convicted by means of a final decision, which was not the case of the applicant. However, it went on to say that the officers’ actions were not criminal because they had constituted a lawful and proportionate use of force within the meaning of section 78(1)(1) of the Ministry of Internal Affairs Act 1997 (see paragraph 71 below). The applicant had failed to heed a lawful order and had resisted the officers’ efforts to put him into the minivan and to handcuff him inside the minivan. The officers had stopped using force immediately after handcuffing the applicant. Lastly, the court noted that during the preliminary investigation the applicant had given evidence that he had been subjected to violence in the house in Koprivshtitsa, where the three officers had left him. That showed that not all injuries later found on the applicant had been caused by them.
64. On an unspecified date in the second half of 2007 the prosecution sought the reopening of the criminal proceedings against the applicant on the ground that the acquittal of the officers was a new relevant fact showing that the applicant had not been illtreated.
65. In a judgment of 7 July 2008 (реш. № 286 от 7 юли 2008 г. по н. д. № 253/2008 г., ВКС, І н. о.), the Supreme Court of Cassation turned the request down, holding that the conclusion of the criminal proceedings against the officers did not amount to grounds to reopen the criminal proceedings against the applicant because the courts in those proceedings had not found that the applicant had not been subjected to illtreatment.
66. On 22 July 2002 two of the applicant’s co-accused were beaten by the officers who escorted them from prison to the Sofia City Court for a hearing in the trial against them. Noting their injuries, the court adjourned the hearing.
67. In 2006 one of them, Mr A.K., brought a claim under section 1 of the State and Municipalities Responsibility for Damage Act 1988 (see paragraph 84 below) against the Ministry of Justice, seeking 30,000 Bulgarian levs in non-pecuniary damages.
68. On 20 October 2008 the Sofia City Court rejected the claim. It held that although the claimant had proved that he had been illtreated on 22 July 2002, he had not been able to prove who exactly had ill-treated him and under what circumstances. The facts alleged in his statement of claim did not match the evidence given by a witness called by him (the other coaccused), and that evidence did not match the evidence given by the applicant, who had also been called to testify. Moreover, the first witness had not pointed to the specific individuals who had carried out the beating, whereas torts under section 1 of the 1988 Act had to be attributed to a specified individual.
69. The applicant’s co-accused appealed. On 12 May 2009 the Sofia Court of Appeal upheld the lower court’s judgment (реш. № 434 от 12 май 2009 г. по гр. д. № 43/2009 г., САС, VІІ с.). It held that the fact of the beating had been substantiated on the basis of the medical evidence and the applicant’s and the other coaccused’s testimony. However, it went on to say that at the relevant time the officers escorting detainees from prison to trial had been employees of the National Police, not the Ministry of Justice; the Ministry had taken over that task on 1 January 2003, following a legislative amendment. It could therefore not be held vicariously liable for the officers’ actions.
70. It does not seem that the applicant’s coaccused tried to appeal on points of law.
71. Section 78 of the Ministry of Internal Affairs Act 1997, in force until 1 May 2006, provided, in so far as relevant:
“(1) The police may use physical force and auxiliary means when performing their duties only if those duties cannot be carried out in a different way, in cases of:
1. resistance or refusal to obey a lawful order;
2. arrest of an offender who does not obey or resists a police officer;
...
5. attacks against civilians or police officers;
...
(2) Auxiliary means are: handcuffs; straitjackets; rubber and electroshock truncheons and devices; chemical substances approved by the Minister of Health, service animals – dogs, horses; blank cartridges, cartridges with rubber, plastic or shock bullets; devices for the forced stopping of motor vehicles; opening devices, light or sound devices with distracting effect; waterspraying and air-pressure devices; armoured vehicles and helicopters.
(3) The manner in which the means under subsection 2 are to be used shall be laid down by the Minister of Internal Affairs.
72. Section 79 provided:
“(1) Physical force and auxiliary means are to be used only after giving warning, except in cases of sudden attacks or of freeing hostages.
(2) The use of physical force or auxiliary means shall correspond to the specific circumstances, the character of the breach of public order and the personality of the offender.
(3) When using physical force or auxiliary means police officers must if possible protect the health of the persons against whom those are deployed, and must take all measures to safeguard their life of those persons.
(4) The use of physical force or auxiliary means shall be discontinued immediately after they have achieved their aim.
...”
73. On 1 May 2006 those provisions were superseded by sections 72 and 73 of the Ministry of Internal Affairs Act 2006. Until recently, the wording of those provisions was largely identical to that of the earlier ones.
74. However, on 6 March 2012 the Government laid before Parliament a bill for the amendment of the 2006 Act. Parliament enacted the bill on 30 May 2012, and the amendment came into force on 1 July 2012. Section 72(1), as worded after the amendment, provides that physical force and auxiliary means may be used “only if absolutely necessary”. A newly added subsection 3 of section 73 provides that “police officers shall use only the force absolutely necessary”, and a newly added subsection 7 provides that “[i]t is forbidden to use lethal force to arrest or prevent the escape of a person who has committed or is about to commit a nonviolent offence if that person does not pose a risk to the life or health of another”. In the explanatory notes to the bill the Government referred to, inter alia, the need to bring domestic law fully into line with the applicable international standards and the Court’s caselaw.
75. Article 12a § 1 of the Criminal Code 1968, added in August 1997, provides that causing harm to a person while arresting him or her for an offence is not criminal where no other means of effecting the arrest exist and the force used is necessary and lawful. According to Article 12a § 2, the force used is not necessary when it is manifestly disproportionate to the nature of the offence committed by the person to be arrested or the resulting harm is in itself excessive and unnecessary.
76. Under Article 131 § 1 (2) taken in conjunction with Article 130 § 1 of the Code, the punishment for light bodily harm inflicted by a police officer is up to three years’ imprisonment.
77. Under Article 287 of the Code, as worded at the time when the applicant was allegedly illtreated, forcing an accused to confess through coercion or other unlawful means was an offence punishable by up to ten years’ imprisonment, where the perpetrator was a person in whom relevant official powers were vested.
78. The limitation period for prosecuting offences under Article 131 § 1 (2) taken in conjunction with Article 130 § 1 of the Code is five years (Article 80 § 1 (4) of the Code), and the limitation period for prosecuting offences under Article 287 of the Code is ten years (Article 80 § 1 (3)). Each act of criminal prosecution carried out by the competent authorities in relation to the alleged offender interrupts the limitation period and restarts the running of time (Article 81 § 2). Such interruptions notwithstanding, the alleged offender can no longer be prosecuted if the limitation period has been exceeded by one half (Article 81 § 3), which means that an offence under Article 131 § 1 (2) taken in conjunction with Article 130 § 1 of the Code cannot be prosecuted if more than seven and a half years have elapsed after its alleged commission. However, under Article 21 § 2 of the Code of Criminal Procedure 1974 (superseded by Article 24 § 2 of the Code of Criminal Procedure 2005), the accused may waive the statute of limitations.
79. A description of the relevant provisions of the 1991 Constitution, the 1974 and 2005 Codes of Criminal Procedure, the Special Surveillance Means Act 1997, the Classified Information Act 2002, and the Access to Public Information Act 2000, as well as the caselaw of the domestic courts and other relevant material can be found in paragraphs 750 of the Court’s judgment in the case of Association for European Integration and Human Rights and Ekimdzhiev v. Bulgaria (no. 62540/00, 28 June 2007).
80. Following the Court’s judgment in that case, on 14 October 2008 the Government laid before Parliament a bill for the amendment of the Special Surveillance Means Act 1997. The explanatory notes to the bill referred to the Court’s judgment and to the need to bring the Act into line with the requirements of the Convention. The bill was enacted on 15 December 2008 and came into force on 27 December 2008. Along with a host of other changes, the amendment created a National Bureau for Control of Special Means of Surveillance, an independent body whose five members were to be elected by Parliament and whose task was to oversee the use of special means of surveillance and the storing and destruction of material obtained through such means, and to protect individuals against the unlawful use of such means (new sections 34b(1), 34c and 34d). The Bureau was to be a permanently acting body having its own administration (new section 34b(3)). In carrying out its functions it could (a) ask the relevant authorities to provide it with information in relation to the use of special means of surveillance; (b) check whether those authorities kept accurate records; (c) access premises containing such records or material obtained though surveillance; (d) give mandatory instructions for improvements in the use of special means of surveillance and in the storage and destruction of material obtained though such means; and (e) inform the prosecuting authorities and the heads of the relevant authorities of instances of unlawful use of such means or of irregularities in the storage or destruction of material obtained though such means (new section 34g). The Bureau was to submit to Parliament an annual report setting out aggregated data on the matters that it was overseeing (new section 34b(5)). It was also to inform of its own motion persons who had been unlawfully subjected to surveillance, unless notification could jeopardise the purpose of the surveillance (section 34h).
81. On 22 October 2009, before the Bureau could start operating, Parliament enacted further amendments to the 1997 Act, abolishing the Bureau and replacing it with a special parliamentary commission, which has the same powers and duties, save for the power to give mandatory instructions (point (d) in the above paragraph); it may only make suggestions for improvements (section 34g, as amended in 2009). The amendments came into force on 10 November 2009. Under related amendments to Parliament’s standing rules, which came into force on 19 December 2009, that commission is in effect a permanent subcommission of Parliament’s legal affairs commission (new rule 24a(1)). It consists of one MP from each parliamentary group and has its own standing rules approved by Parliament (new rule 24a(2)). Those rules were adopted on 11 February 2010. The commission, whose current five members were elected by Parliament on 22 December 2009, is assisted by fifteen parliamentary staffers (rule 24a(3) of Parliament’s standing rules and rule 14 of the commission’s standing rules). It must sit, behind closed doors and in line with the rules governing classified information, at least once every week (rules 9 and 13 of the commission’s standing rules).
82. Under section 34h of the 1997 Act, as amended, the commission must inform of its own motion persons who have been unlawfully subjected to secret surveillance, unless notification might jeopardise the purpose of the surveillance, allow the divulgation of operational methods or technical devices, or put the life or health of an undercover agent or his or her relatives or friends in jeopardy.
83. The commission has thus far submitted three annual reports: the first was submitted in May 2010 and accepted by Parliament on 16 June 2010, the second was submitted in May 2011 and accepted by Parliament on 18 May 2011, and the third was submitted on 4 July 2012 and has yet to be accepted by Parliament. In that latest report the commission said, inter alia, that it had received a number of complaints from individuals, and had taken measures to examine them. It had carried out inspections in seven towns, and had noted many irregularities, such as insufficiently reasoned applications for judicial authorisation of secret surveillance, failures to destroy material obtained through such surveillance within the statutory timelimits, and failures to report back to the court which had authorised surveillance. The commission went on to say that the lack of proper recordkeeping made it difficult to oversee the operation of the system as a whole. It also noted the very low percentage of refused applications for judicial authorisation of secret surveillance. The total number of requests in 2011 had been 13,846. Only 116 had been refused, chiefly on purely technical grounds. 7,881 persons had been subjected to surveillance. 747 requests had yielded material subsequently used in criminal trials. The analysis of the available data showed that the authorities were not using secret surveillance as a means of last resort, but routinely, mainly because it was an almost effortless way of gathering evidence. It was therefore necessary to tighten up the relevant regulations and to strengthen judicial control. The commission made a number of specific proposals in that respect.
84. Section 1 of the Act originally called the State Responsibility for Damage Caused to Citizens Act 1988, renamed on 12 July 2006 the State and Municipalities Responsibility for Damage Act 1988 (“the 1988 Act”), provides that the State is liable for damage suffered by individuals (and since 1 January 2006 also legal persons) as a result of unlawful decisions, actions or omissions by civil servants, committed in the course of or in connection with the performance of their duties.
85. Section 2(1) of the Act provides for liability of the investigating and prosecuting authorities or the courts in several situations: unlawful detention; bringing of charges, if the accused has been acquitted or the proceedings have been discontinued on certain grounds; conviction and sentencing, if the conviction has later been set aside; coercive medical treatment or coercive measures imposed by a court, if its decision has later been quashed as being unlawful; and serving of a sentence over and above its prescribed duration.
86. On 10 March 2009 a new point 7 was added to section 2(1). It provides that the State is liable for damage which the investigating and prosecuting authorities or the courts have caused to individuals through the unlawful use of special means of surveillance. There is no reported caselaw under that provision.
87. In their caselaw the Supreme Court of Cassation and the Supreme Administrative Court have held that the liability provisions of the 1988 Act – including those added after the Act was originally enacted – confer on the persons concerned a substantive right to claim damages, and have no retrospective effect (реш. № 63 от 21 февруари 1997 г. по гр. д. № 2180/ 1996 г., ВС; реш. № 529 от 17 юли 2001 г. по гр. д. № 24/2001 г., ВКС; опр. № 9134 от 3 октомври 2007 г. по адм. д. № 8175/2007 г., ВАС, ІІІ о.; опр. № 1046 от 6 август 2009 г. по гр. д. № 635/2009 г., ВКС, ІІІ г. о.; опр. № 1047 от 7 август 2009 г. по гр. д. № 738/2009 г., ВКС, III г. о.; реш. № 335 от 31 май 2010 г. по гр. д. № 840/2009 г., ВКС, III г. о.; реш. № 329 от 4 юни 2010 г. по гр. д. № 883/2009 г., ВКС, IV г. о.).
88. According to a binding interpretative decision of the Supreme Court of Cassation (тълк. реш. № 3 от 22 април 2005 г. по тълк. гр. д. № 3/2004 г., ОСГК на ВКС), persons who have been finally acquitted can obtain compensation for the mere fact that criminal proceedings have been brought against them, on the basis that the charges against them are retrospectively considered to have been “unlawful”. According to the same decision, compensation is due in respect of the proceedings themselves and in respect of any incidental measures, such as pretrial detention.
89. In several judgments given between 2005 and 2008 the Supreme Court of Cassation, when fixing the amount of damages it awarded pursuant to such claims, had regard to, among other things, the suffering of the persons concerned stemming from the hardship of being placed in pretrial detention (реш. № 1599 от 22 юни 2005 г. по гр. д. № 876/2004 г., ВКС, IV г. о.; реш. № 1017 от 15 декември 2005 г. по гр. д. № 524/2004 г., ВКС, IV г. о.; реш. № 2851 от 23 януари 2006 г. по гр. д. № 2252/2004 г., ВКС, IV г. о.; реш. № 156 от 10 май 2006 г. по гр. д. № 2633/2004 г., ВКС, IV г. о.; реш. № 1557 от 27 декември 2006 г. по гр. д. № 2800/2005 г., ВКС, IV г. о.; реш. № 692 от 12 май 2008 г. по гр. д. № 2394/2007 г., ВКС, IV г. о.).
90. Section 49 of the Obligations and Contracts Act 1951 provides that a person who has entrusted another with carrying out a job is liable for the damage caused by that other person in the course of or in connection with the performance of the job. Liability under that provision – as, indeed, all provisions governing torts – is premised upon the wrongfulness of the impugned conduct (реш. № 567 от 24 ноември 1997 г. по гр. д. № 775/1996 г., ВС, петчленен състав).
91. Article 222 of the Code of Civil Procedure 1952 provided as follows:
“The final judgment of a criminal court is binding on the civil court which examines the civil consequences of the criminal act in relation to the points whether the act was perpetrated, whether it was unlawful, and whether the perpetrator was guilty of it.”
92. Article 300 of the Code of Civil Procedure 2007, which came into force on 1 March 2008, is phrased in identical terms.
93. The Council of Europe’s Committee of Ministers, which under Article 46 § 2 of the Convention has the duty to supervise the execution of the Court’s judgments, is still examining the execution by Bulgaria of the Court’s judgment in Association for European Integration and Human Rights and Ekimdzhiev (cited above). According to information published on the Committee’s website, the case is currently under “enhanced supervision”. The latest developments were that on 2 March 2011 the Bulgarian Government had submitted an action report, that on 23 August 2011 they had provided further information, and that on 26 June 2012 they had submitted a further action report (in which they had, inter alia, said that they were not aware of any caselaw under the new point 7 of section 2(1) of the 1988 Act – see paragraph 86 above). Bilateral contacts were still under way between the Committee’s administration and the Government with a view to gathering more information necessary for the presentation of a revised action plan or report to the Committee.
VIOLATED_ARTICLES: 13
3
38
8
VIOLATED_PARAGRAPHS: 8-1


ITEMID: 001-60032
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: CHAMBER
DATE: 2002
DOCNAME: CASE OF DINLETEN v. TURKEY
IMPORTANCE: 4
CONCLUSION: Violation of Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings
JUDGES: Feyyaz Gölcüklü;Georg Ress
TEXT: 10. On 26 June 1979 police officers from the İzmir Security Directorate arrested the applicant on suspicion of membership of an illegal organisation, the THKP-C (Turkish People’s Liberation Party/Front).
11. On 29 June 1979 the applicant was detained on remand.
12. On 4 March 1981 the Military Public Prosecutor filed a bill of indictment with the İstanbul Martial Law Court against the applicant and 127 other defendants. The Public Prosecutor accused the applicant, inter alia, of membership of an illegal armed organisation, namely the THKP/C, whose object was to undermine the constitutional order and replace it with a Marxist-Leninist regime. He further charged the applicant with having been involved in a number of crimes such as killing of foreign military officers, bombing and opening fire on security forces, organising and participating in illegal meetings.
13. The prosecution sought the death penalty under Article 146 § 1 of the Criminal Code.
14. In a judgment of 8 November 1984 the İstanbul Martial Law Court convicted the applicant of membership of the THKP/C and his involvement in some of the alleged crimes. It sentenced the applicant to lifetime imprisonment under Article 146 § 1 of the Criminal Code.
15. As the applicant’s sentence exceeded 15 years’ imprisonment, his case was automatically referred to the Military Court of Cassation (Askeri Yargıtay).
16. On 12 April 1988 the Military Court of Cassation quashed the applicant’s conviction on the grounds that the first instance court failed to establish the applicant’s involvement in certain of the alleged crimes. It referred the case to the Istanbul Martial Law Court.
17. On 17 August 1990 the Istanbul Martial Law Court convicted the applicant under Article 146 § 1 of the Criminal Code and sentenced him to lifetime imprisonment, permanently debarred him from employment in the civil service and placed him under judicial guardianship. The court ordered the applicant’s release pending trial on the same day. The applicant appealed.
18. Following promulgation of the Law of 27 December 1993, which abolished the jurisdiction of the Martial Law Courts, the Court of Cassation (Yargıtay) acquired jurisdiction over the case and on 4 January 1994 the case file was transmitted to it.
19. On 18 April 1995 the Court of Cassation upheld the applicant’s conviction.
20. Article 146 § 1 of the Criminal Code provides:
“Whosoever shall attempt to alter or amend in whole or in part the Constitution of the Republic of Turkey or to effect a coup d’état against the Grand National Assembly formed under the Constitution or to prevent it by force from carrying out its functions shall be liable to the death penalty.”
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-79213
LANGUAGEISOCODE: ENG
RESPONDENT: AUT
BRANCH: CHAMBER
DATE: 2007
DOCNAME: CASE OF VEREINIGUNG BILDENDER KÜNSTLER v. AUSTRIA
IMPORTANCE: 2
CONCLUSION: Violation of Art. 10;Pecuniary damage - financial award;Non-pecuniary damage - finding of violation sufficient;Costs and expenses award - domestic proceedings;Costs and expenses partial award - Convention proceedings
JUDGES: Christos Rozakis
TEXT: 7. Vereinigung Bildender Künstler Wiener Secession is an association of artists with its seat in the Secession building in Vienna. The Secession, an independent gallery, is devoted entirely to exhibitions of contemporary art. One of the basic objectives of the association is to present current developments in Austrian and international art, and to cultivate an openness to experimentation.
8. Between 3 April and 21 June 1998 the applicant association held an exhibition on its premises. The exhibition, entitled “The century of artistic freedom” (“Das Jahrhundert künstlerischer Freiheit”), was intended as part of the celebrations of the association's 100th anniversary. Among the works to be shown was a painting entitled “Apocalypse”, which had been produced for the occasion by the Austrian painter Otto Mühl. The painting, measuring 450 cm by 360 cm, showed a collage of various public figures, such as Mother Teresa, the Austrian cardinal Hermann Groer and the former head of the Austrian Freedom Party (FPÖ) Mr Jörg Haider, in sexual positions. While the naked bodies of these figures were painted, the heads and faces were depicted using blown-up photos taken from newspapers. The eyes of some of the persons portrayed were hidden under black bars. Among these persons was Mr Meischberger, a former general secretary of the FPÖ until 1995, who at the time of the events was a member of the National Assembly (Nationalratsabgeordneter), a mandate he held until April 1999. Mr Meischberger was shown gripping the ejaculating penis of Mr Haider while at the same time being touched by two other FPÖ politicians and ejaculating on Mother Teresa.
9. The exhibition, for which admission was charged, was open to the public.
10. On 11 June 1998, while the exhibition was in progress, the Austrian newspaper Täglich Alles bristled at the above painting's portayal of “group sexual situations with Bishop Groer and Mother Teresa”.
11. On 12 June 1998 the painting was damaged by a visitor, who covered with red paint the part which showed, among others, Mr Meischberger. As a consequence of this incident the entire painted body of Mr Meischberger and part of his face were covered with red paint.
12. Several Austrian newspapers reported on this event and also published pictures of the painting.
13. On 22 June 1998 Mr Meischberger brought proceedings under section 78 of the Copyright Act (Urheberrechtsgesetz) against the applicant association, seeking an injunction prohibiting it from exhibiting and publishing the painting. He further requested compensation in the amount of 20,000 Austrian schillings (ATS – 1,453.46 euros (EUR)). He argued that the painting, showing him in sexual positions with several persons, debased him and his political activities and made statements as to his allegedly loose sexual life (lotterhaftes Intimleben). The black eye-bars did not prevent him from being recognised, because he was shown together with two other FPÖ politicians. He remained recognisable even after the incident of 12 June 1998, which had further increased the publicity given to the painting. Furthermore, there was a danger of recurrence as after the present exhibition the painting was due to be shown at another exhibition in Prague.
14. On 6 August 1999 the Vienna Commercial Court (Handelsgericht) dismissed Mr Meischberger's action. It noted that it had initially been intended to show the exhibition in Prague, Bucharest and Luxembourg as well; now the intention was to close down the exhibition. The court further found that it could be ruled out that the painting had adversely affected the claimant or divulged information about his private life, as the painting, which resembled a comic strip (“comixartig”), obviously did not represent reality. However, a painting showing the claimant in such an intimate position could, regardless of its relation to reality, still have a degrading and personally debasing effect. In the present case, however, the right of the applicant association to freedom of artistic expression outweighed Mr Meischberger's personal interests. When balancing the latter's interests against the interests of the applicant association, the court had regard in particular to the fact that the exhibition was dedicated to the association's artistic spectrum over the last hundred years, which included the work of the Austrian painter Otto Mühl. It further noted that the painting showed numerous other persons, among them friends and benefactors of the painter, and also representatives of the FPÖ party, which had always strongly criticised Mr Mühl's work.
15. The painting in question could therefore be seen as a kind of counter-attack (Gegenschlag). In any event, Mr Meischberger's picture constituted only a rather small part of the painting and was therefore not striking. The court further added that there appeared to be no danger of recurrence (Wiederholungsgefahr) as the painting had been partly covered by red paint and Mr Meischberger was therefore no longer recognisable on it.
16. On 24 February 2000 the Vienna Court of Appeal (Oberlandesgericht), after having held an oral hearing, granted an appeal on points of law and fact by Mr Meischberger, issued an injunction against the applicant association prohibiting it from continuing to display the painting at exhibitions, and ordered it to pay the costs incurred by Mr Meischberger in the proceedings and ATS 20,000 (EUR 1,453.46), plus 4% interest with effect from 8 July 1998, in compensation. It further allowed Mr Meischberger to publish extracts of its judgment in two Austrian newspapers. It noted that Mr Meischberger's picture was only partly covered by red paint, so that part of his face, the shape of his head and his hairstyle were still recognisable. The limits of artistic freedom were exceeded when the image of a person was substantially deformed by wholly imaginary elements without it being evident that the picture aimed at satire or any other form of exaggeration. The painting in the present case was not intended to be a parable or even an exaggerated criticism conveying a basic message, such as, for example, the statement that Mr Meischberger had disregarded sexual decency and morals. It therefore did not fall within the scope of Article 10 of the Convention, but in fact constituted a debasement of Mr Meischberger's public standing (Entwürdigung öffentlichen Ansehens). The applicant association could not justify the exhibition of the painting under the artistic freedom protected by Article 17a of the Basic Law (Staatsgrundsgesetz). There was, furthermore, nothing to indicate that the applicant association would abstain from exhibiting the painting in the future, so that there was a danger of recurrence.
17. On 18 July 2000 the Supreme Court (Oberster Gerichtshof) rejected an appeal by the applicant association as it did not concern a legal question of considerable interest. It noted that the Court of Appeal had not questioned the fact that the painting fell within the scope of protection provided by Article 17a of the Basic Law but, weighing the guarantee of artistic freedom enshrined in that provision against Mr Meischberger's personal rights as protected by section 78 of the Copyright Act, had considered that the latter prevailed over the former because a picture of Mr Meischberger had been used in a degrading and insulting manner. As to the question whether Mr Meischberger could still be recognised despite the painting being covered with red paint, the Court of Appeal had not contradicted the documents contained in the court file and there was therefore no need for a rectification. It ordered the applicant association to pay the costs of the proceedings.
18. That decision was served on the applicant association's counsel on 13 September 2000.
19. Section 78 of the Copyright Act, in so far as relevant, reads as follows:
“(1) Images of persons shall neither be exhibited publicly, nor in any way made accessible to the public, where injury would be caused to the legitimate interests of the portrayed persons or, in the event that they have died without having authorised or ordered publication, those of a close relative.”
20. Artistic freedom is guaranteed by Article 17a of the Basic Law (Staatsgrundgesetz), which provides:
“There shall be freedom of artistic creation and of the publication and teaching of art.”
VIOLATED_ARTICLES: 10


ITEMID: 001-70931
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: CHAMBER
DATE: 2005
DOCNAME: CASE OF EMRULLAH KARAGÖZ v. TURKEY [Extracts]
IMPORTANCE: 1
CONCLUSION: Preliminary objection joined to merits and dismissed (Article 35-1 - Exhaustion of domestic remedies);Violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention;Procedure prescribed by law);Violation of Article 5 - Right to liberty and security (Article 5-4 - Review of lawfulness of detention);No violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);Pecuniary damage - claim dismissed;Non-pecuniary damage - award
TEXT: 8. The applicant was born in 1978 and lives in Diyarbakır.
9. On 28 October 2001 he was arrested by gendarmes and taken into custody at the Diyarbakır gendarmerie command.
10. On 30 October 2001 the gendarmes took a statement from him. He was suspected of having assisted and supported the PKK (Workers' Party of Kurdistan), an illegal organisation under Turkish law. He allegedly signed his statement while blindfolded. At the end of his detention in the gendarmes' custody, he was examined by a forensic medical expert. No signs of ill-treatment were observed on his body.
11. On 1 November 2001, after being interviewed by the public prosecutor, the applicant was brought before a judge of the Diyarbakır National Security Court, who ordered his detention pending trial. Before both the prosecutor and the judge the applicant denied the accusations against him. He was subsequently taken to Diyarbakır Prison.
12. On 1 November 2001, ruling on applications by the governor of the state of emergency region and the public prosecutor, and on the basis of Article 3 (c) of Legislative Decree no. 430 on additional measures to be taken in connection with the state of emergency, the judge granted leave for the applicant to be sent back to the gendarmerie command for questioning for a period not exceeding ten days. The applicant was returned to the gendarmes' custody at 10.45 p.m. that day.
13. On 6 November 2001 the National Security Court dismissed an objection by the applicant's family, on the ground that the length of his detention was consistent with the limits laid down in domestic law.
14. On 10 November 2001 the judge extended the applicant's detention at the gendarmerie command by ten days, again on the basis of Legislative Decree no. 430.
15. On 15 November 2001 an objection by the applicant's representative was dismissed by the National Security Court.
16. On 20 November 2001 the applicant was taken back to prison.
17. On 20 and 21 November 2001 the governor of the state of emergency region and the public prosecutor, again on the basis of Legislative Decree no. 430, asked the judge to extend the applicant's detention at the gendarmerie command by a further ten days.
18. On 21 November 2001 the judge refused that request on the ground that the case file did not contain any evidence to substantiate it and that such an omission was attributable to the authorities.
19. The public prosecutor lodged an objection against that decision.
20. On 22 November 2001 the National Security Court allowed the objection and observed that the applicant was the subject of three other investigations. It granted a further ten-day extension and leave for the applicant to be taken from prison for questioning.
21. On the same day the applicant was handed over to the gendarmes.
22. On 1 December 2001 the judge extended the applicant's detention at the gendarmerie command by a further ten days.
23. On 12 December 2001 the applicant was taken back to Diyarbakır Prison.
24. Each time the applicant left and returned to the prison, he was examined by a doctor. The reports subsequently drawn up did not mention any signs of blows to the applicant's body.
25. In an indictment of 6 April 2001, the public prosecutor brought criminal proceedings against the applicant under Article 168 of the Criminal Code, by which it is an offence to be a member of an armed gang.
26. At a hearing on 26 June 2001, the National Security Court ordered the applicant's provisional release.
27. On 27 August 2001 he was acquitted in the absence of any evidence other than his initial statement to the gendarmes.
28. On 20 September 2001 the judgment became final.
29. On 9 November 2001 the applicant's representative lodged a criminal complaint with the public prosecutor at the National Security Court against the gendarmes, alleging that they had ill-treated the applicant in order to obtain a confession from him. He asked for the applicant to be given a thorough medical examination. He further submitted that the applicant's recurring periods of detention at the gendarmerie command had breached both the provision of the Constitution governing the maximum length of detention in police custody and Article 5 of the Convention.
30. On 13 November 2001 the public prosecutor at the National Security Court ruled that he did not have jurisdiction and forwarded the file to the Diyarbakır public prosecutor's office.
31. On 13 December 2001 the applicant was interviewed by the Diyarbakır public prosecutor. He asserted that he had been sprayed with cold water, had been insulted, threatened and beaten, had had his testicles squeezed and had been placed naked in front of a fan blowing cold air. He lodged a criminal complaint against the gendarmes involved in questioning him. He also requested a medical examination and treatment.
32. In a letter of 21 December 2001 to the Diyarbakır public prosecutor, the applicant's representative reiterated his allegations of torture and asked for his client to be examined at a specialist medical department.
33. On 14 February 2002 the public prosecutor ordered thorough medical examinations to be carried out at the urology department and a testicular scintigram and pelvic ultrasound scan to be carried out at the nuclear medicine department of Dicle University in order to detect any signs of ill-treatment.
34. In a document of 27 March 2002, addressed to the Diyarbakır provincial governor, the public prosecutor sought leave to bring proceedings against the gendarmes in whose custody the applicant had been held.
35. A urological ultrasound scan of 18 April 2002 and a testicular scintigram of 13 May 2002 did not reveal any abnormalities.
36. A preliminary investigation was opened by the Diyarbakır Provincial Administrative Council in respect of the gendarmerie commander.
37. On 1 May 2002 the Administrative Council decided, in the absence of sufficient evidence, not to open an investigation with a view to prosecuting the official in question.
38. On 22 May 2002 the applicant lodged an objection against that decision with the Diyarbakır Administrative Court.
39. On 31 December 2002 the Diyarbakır Administrative Court upheld the decision. The Diyarbakır public prosecutor's office subsequently discontinued the proceedings.
40. On 7 February 2003 the applicant appealed to the Siverek Assize Court against the decision to discontinue the proceedings.
41. On 26 March 2003 the appeal was dismissed in view of the decision by the Diyarbakır provincial governor's office.
42. As amended by Law no. 4709 of 17 October 2001, Article 19 of the Constitution provides:
“Everyone has the right to liberty and security of person.
No one shall be deprived of his liberty save in the following cases and in accordance with the formalities and conditions prescribed by law: ...
The arrested or detained person must be brought before a judge within forty-eight hours at the latest or, in the case of offences committed by more than one person, within four days ...
The close relatives of persons who have been arrested or detained shall be notified immediately of their circumstances. ...
Compensation must be paid by the State for damage sustained by persons who have been victims of treatment contrary to the above provisions, in accordance with the general rules governing the right to compensation.”
43. In addition, Article 144 of the Code of Criminal Procedure provides that anyone who has been arrested or detained pending trial may confer in private with his or her legal representative, who does not need to have been given an authority to act.
44. Legislative Decree no. 430 of 16 December 1990 on additional measures to be taken in connection with the state of emergency strengthened the powers of the governor of the state of emergency region. Article 3 (c) provides that, on a proposal by the governor, at the request of the public prosecutor and by order of a judge, persons who are detained after being convicted or pending trial may be taken from prison for questioning for a period not exceeding ten days. They must undergo a medical examination on leaving and returning to prison.
45. No court action may be brought against decisions of the governor of the state of emergency region.
Article 8 of the legislative decree provides:
“No criminal, financial or legal liability may be asserted against ... the governor of a state of emergency region or provincial governors in that region in respect of decisions taken, or acts performed, by them in the exercise of the powers conferred on them by this legislative decree, and no application shall be made to any judicial authority to that end. This shall be without prejudice to the rights of individuals to claim reparation from the State for damage which they have been caused without justification.”
46. The Constitutional Court dismissed applications for review of Article 8 of Legislative Decree no. 430, finding that they were inadmissible ratione materiae on the ground that the legislative decree was not subject to constitutional review, in two judgments delivered on 3 July 1991 and 26 May 1992, published in the Official Gazette on 8 March 1992 and 18 December 1993 respectively.
47. Since 30 November 2002 the state of emergency in force in two provinces of south-eastern Turkey (Diyarbakır and Şırnak) has been permanently lifted. As a result, Legislative Decree no. 430 has ceased to apply since that date.
VIOLATED_ARTICLES: 5
VIOLATED_PARAGRAPHS: 5-1
5-4
NON_VIOLATED_ARTICLES: 3


ITEMID: 001-101101
LANGUAGEISOCODE: ENG
RESPONDENT: AUT
BRANCH: ADMISSIBILITY
DATE: 2010
DOCNAME: 92.9 HIT FM RADIO GMBH v. AUSTRIA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Anatoly Kovler;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;George Nicolaou;Giorgio Malinverni;Sverre Erik Jebens
TEXT: The applicant company, 92.9 Hit FM Radio GmbH, is a limited liability company with its registered office in Vienna. It was represented by Mr C. Ebert, a lawyer practising in Vienna. The Austrian Government (“the Government”) were represented by their Agent, Ambassador H. Tichy, Head of the International Law Department at the Federal Ministry for Foreign Affairs.
The facts of the case, as submitted by the parties, may be summarised as follows.
On 5 December 1997 the Regional Radio and Cable Broadcasting Authority (Regionalradio- und Kabelrundfunkbehörde, – “the RRCBA”) decided to award a licence for a local radio station for the Vienna no. 1 area (one out of a total of four licences for the Vienna area) under the Regional Radio Broadcasting Act (Regionalradiogesetz – “the RRBA”). The licence was awarded to the applicant company, then called K4 Privatradio GmbH, and was issued for seven years, starting on 1 April 1998 and terminating on 31 March 2005. At that time the applicant company was owned by ten shareholders, each owning between 25.1% and 0.9% of the shares. At the same time the RRCBA dismissed applications for the same licence from eleven competitors of the applicant company. This decision was served on all parties and contained the information that a complaint could be filed against the decision with the Constitutional Court within six weeks after the decision had been served.
By 22 January 1998 five of the applicant company's fellow applicants for the licence had filed complaints with the Constitutional Court. They argued, inter alia, that the granting of the licence to the applicant company was in breach of Article 10 of the Convention, and asked for a review of the provisions on the establishment of the RRCBA, arguing that those rules were unconstitutional. They also applied for their complaints to have suspensive effect
On an unspecified date the applicant company, assisted by counsel, commented on the complaints and opposed the request for suspensive effect.
On 3 March 1998 the Constitutional Court refused to grant suspensive effect.
On 1 April 1998 the applicant company started to broadcast its radio programmes.
On an unspecified date the Constitutional Court opened proceedings for review of the constitutionality of section 13 RRBA.
In 1999, following an amendment of the RRBA dated 1 August 1999, the applicant company's licence was extended to a total duration of ten years, that is, until 31 March 2008.
On 29 June 2000 the Constitutional Court quashed section 13 RRBA, on which the establishment of the RRCBA was based. It held that the RRCBA was a special type of administrative authority, namely one whose members included a judge, which rendered all its members independent and not subject to instructions (weisungsfreie Verwaltungsbehörde mit richterlichem Einschlag). Only in exceptional circumstances, in particular if the authority was an instance of appeal, could authorities of this kind be held to be constitutional. Since the RRCBA was the only instance to decide on the granting of the licence and no complaint to the administrative courts was allowed by the RRBA, there was insufficient review of the lawfulness of its decisions. Accordingly, section 13 RRBA was unconstitutional.
Subsequently, on 28 September 2000, the Constitutional Court also quashed the RRCBA's decision of 5 December 1997 on the grounds that it had been rendered by an unconstitutional authority.
In the meantime, on 12 July 2000, the RRBA had been amended and the Private Broadcasting Authority (Privatrundfunkbehörde – “the PBA”), a provisional authority set up to replace the RRCBA, was established.
On 19 December 2000 the PBA granted the applicant company a provisional licence for six months, in order to give it the opportunity to continue broadcasting while fresh proceedings for the award of a broadcasting licence were conducted.
The RRBA was replaced by the new Private Radio Act (Privatradiogesetz – “the PRA”) on 6 March 2001; on 30 March 2001 the Act establishing the Communications Authority Austria (KommAustria Gesetz – “the CAAA”) was adopted.
On 18 June 2001 the Communications Authority Austria (Kommuni-kationsbehörde Austria – “the CAA”), which had replaced the former PBA, granted the licence for a local radio station for the Vienna no. 1 area to company D. and dismissed the licence applications of the other six participants, including the applicant company. The CAA examined the company structure and proposed programme content of each of the participants. It found that company D. provided a coherent package of radio programmes for an older audience, focusing on local news and Schlager music (German-language easy-listening music). Since this age group was underrepresented in the current radio landscape the application was given precedence. The granting of the licence to this broadcaster was therefore in the interests of plurality of the media landscape.
As regards the other applicants for the licence, the CAA noted that the shareholder structure of the applicant company had changed fundamentally since its first application for the radio broadcasting licence at issue, as it was now owned by one company and one foundation, both belonging to the Krone media group. The Krone media group, besides owning several print media, was a shareholder in companies holding radio broadcasting licences. The Krone media group operated, under the name Krone Hit Radio, Austria's first nationwide private radio station, consisting of twelve local broadcasters and covering an area of approximately five million inhabitants. As regards the Vienna area, one company belonging to that group already operated another radio station in Vienna and it was not in the interests of plurality for the same area to be covered by two radio broadcasting stations belonging to the same media group.
In comparison to the applicant company, company D. was more independent, because none of its shareholders was active in the radio or print industry in Vienna and it could therefore better contribute to plurality of opinion. Furthermore, company D. provided for a larger number of self-produced programmes, although it would have to purchase world news from another provider at the beginning. Although the applicant company produced its own news, it would still provide fewer self-produced programmes.
The applicant company stopped broadcasting and operating the next day.
On 29 June 2001 the applicant company appealed. It argued that the authority had incorrectly calculated the percentage of its shares held directly and indirectly by the various companies belonging to the Krone media group. It had also incorrectly applied the law because section 6(2) PRA, which stated that the authority should “take into account whether one of the applicants has already made use of the licence to be granted” should have priority over any other criterion for granting a radio broadcasting licence. Four other unsuccessful applicants for the licence also appealed.
On 14 December 2001 the Federal Communications Panel (Bundeskommunikationssenat – “the FCP”) dismissed all the appeals. It found that the CAA had described in detail the organisational set-up of the different applicants for the licence, their respective owners in the case of shareholder-owned companies and their previous experience in the field of broadcasting. The CAA had concluded that a group of participants including the applicant company met the basic professional, organisational and financial requirements of the PRA as regards their structure and the proposed programme content. Therefore the CAA had had to decide which participant out of this group was the best suited on the basis of the criteria set out under section 6 PRA. This had been the one which, within the licence area, would best fulfil the requirements of plurality of opinion through its range of programmes and which offered a greater number of self-produced programmes (Beiträge). One further element which had to be taken into account was whether an applicant for a licence had used a licence previously granted in accordance with the law. The CAA had taken this element sufficiently into account.
On 25 January 2002 the applicant company filed a complaint with the Constitutional Court in which it complained about breaches of the principle of equality, of its right to peaceful enjoyment of its possessions and of its right to freedom of expression. It submitted in particular that the Austrian authorities had grossly misinterpreted section 6(2) of the PRA as, in the applicant's view, the fact that a company had already held a broadcasting licence should be taken as the decisive criterion when issuing a further licence.
On 25 September 2002 the Constitutional Court dismissed the applicant company's complaint and, 'at its request, transferred the case to the Administrative Court. It found, inter alia, that the criteria set forth in section 6 of the PRA were sufficiently precise and therefore were not in contradiction with the principle of legality. Moreover, the decision taken by the authority had not been arbitrary. If the competent authority could only grant one licence and therefore had to make a choice between several applicants, all of which satisfied the basic criteria, it had to explain in detail the reasons for its choice. The competent authority had done so properly and without making a mistake sufficiently serious to raise an issue under constitutional law (ein in die Verfassungssphäre reichender Irrtum).
On 18 November 2002 the applicant company supplemented its complaint to the Administrative Court.
The Administrative Court dismissed the complaint on 15 September 2004. It held that section 6(2) of the PRA did not oblige the authority to grant the licence to the previous holder, but that the provision in question was just one element amongst others in the decision-making process. The authority's decision to put more emphasis on protecting diversity of opinion than on protecting the economic interests of previous licence holders was therefore in conformity with the law. In the interests of media diversity it was not in accordance with the aim and wording of the PRA, where there was a choice between several suitable applicants, for the licence to be awarded to one which had already broadcast in the licence area as part of a media group (Medienverband).
Section 13 of the Regional Radio Broadcasting Act, published in Federal Law Gazette (Bundesgesetzblatt) 506/1993 (Regionalradiogesetz), in so far as relevant, reads as follows:
“(1) The Regional Radio and Cable Broadcasting Authority shall be established within the Federal Chancellery as a twelve-member collegiate body comprising the members appointed in accordance with paragraph 4 plus one judge. The members shall be experts in the field, with at least five years' proven experience in the media or administrative sectors.
(2) In accordance with Article 20 § 2 of the Constitution, the members of the Regional Radio and Cable Broadcasting Authority shall not be subject to any instructions or directions in the performance of their duties.
(3) The members of the Authority appointed in accordance with paragraph 4, and the judge member, shall be appointed by the Federal President on a proposal from the Federal Government. Their term of office shall be five years.
...
(11) The Regional Radio and Cable Broadcasting Authority shall rule at last instance. Its decisions may not be set aside or varied in administrative proceedings.”
Section 13 of the Regional Radio Broadcasting Act was amended on 12 July 2000 and the Private Broadcasting Authority (Privatrundfunkbehörde) was established. This provision, in so far as relevant, reads as follows:
“(1) The Private Broadcasting Authority shall be established within the Federal Chancellery as a twelve-member collegiate body comprising the members appointed in accordance with paragraph 4 plus one judge. The members shall be experts in the field, with at least five years' proven experience in the media or administrative sectors.
(2) In accordance with Article 20 § 2 of the Constitution, the members of the Private Broadcasting Authority shall not be subject to any instructions or directions in the performance of their duties.
(3) The members of the Private Broadcasting Authority appointed in accordance with paragraph 4, and the judge member, shall be appointed by the Federal President on a proposal from the Federal Government. Their term of office shall be five years.
...
(11) The Private Broadcasting Authority shall rule at last instance. Its decisions may not be set aside or varied in administrative proceedings. An appeal shall lie to the Constitutional Court against the decisions of the Private Broadcasting Authority. ”
...
Section 6 of the Private Radio Act (Privatradiogesetz), in so far as relevant, reads as follows:
“(1) If several applicants meeting the legal requirements (section 5(1) and (2)) apply for a licence, the regulating authority shall give priority to the applicant who seems to be the best suited on the basis of the submitted documents and the results of the procedure to guarantee compliance with the objectives of this Act, especially by guaranteeing that he/she will ensure greater plurality of opinion overall, and who can be expected to produce autonomous programmes which also take into account listeners' interests in the transmission area or, in the case of special programmes, whose planned programme content can be expected, in the light of the existing overall range of programmes broadcast under this federal law, to render a special contribution to the plurality of opinion in the target area, and who can be expected to produce a range of programmes with the highest share of individually-produced contributions.
(2) The Authority shall also take into account whether one of the applicants has already made use of the licence to be granted in accordance with the law.”
The Federal Act establishing the Communications Authority Austria (Kommunikationsbehörde Austria) and the Federal Communications Panel (Bundeskommunikationssenat), published in Federal Law Gazette 32/2001, reads, in so far as relevant, as follows:
“(1) The Communications Authority Austria (“KommAustria”) shall be established with administrative responsibility for regulating the broadcasting sector.
(2) The Federal Communications Panel shall be established to oversee the regulation of the broadcasting sector and supervise the lawfulness of the activities of the Austrian Broadcasting Corporation.
...”
“(1) The administrative responsibility referred to in section 1(1) shall encompass the tasks entrusted to KommAustria on the basis of separate federal legislation, including:
1. the award of broadcasting licences
...”
“(1) KommAustria shall comprise the head of the Authority and as many staff members as are required.
(2) The head of the Authority and his or her deputy shall be officially appointed following an open competition procedure in accordance with section 3 of the Official Vacancies Act 1989.
(3) KommAustria shall come under the direct authority of the Federal Chancellor. It shall act as an independent authority in its dealings with third parties. All the Authority's dealings shall be conducted under the name of Communications Authority Austria (“KommAustria”).
(4) KommAustria shall have its headquarters in Vienna.”
“(1) The Federal Communications Panel shall be established within the Federal Chancellery to oversee the decisions of KommAustria and supervise the lawfulness of the activities of the Austrian Broadcasting Corporation.
(2) The Federal Communications Panel shall rule at last instance
1. on appeal against decisions of KommAustria, with the exception of appeals in criminal administrative proceedings
...
(3) The decisions of the Federal Communications Panel may not be set aside or varied in administrative proceedings. An appeal shall lie to the Constitutional Court against the decisions of the Federal Communications Panel.”
“(1) The Federal Communications Panel shall comprise five members, two of whom must be members of the judiciary. The members of the Federal Communications Panel shall be independent in the exercise of their functions and shall not be subject to any instructions or directions. The Panel shall elect a Chair and Vice-Chair from among the members belonging to the judiciary.
(2) The members of the Federal Communications Panel shall be appointed by the Federal President on a proposal from the Federal Government for a term of office of six years. A substitute member shall be appointed in respect of each member, to sit in his or her absence.”
...
In a decision of 29 June 2000 the Constitutional Court examined the constitutionality of section 13 of the Regional Radio Broadcasting Act 1993 and held, in particular, as follows:
“The requirements of the constitutionally established rule of law are not satisfied where the acts of the administrative authorities are subject to the law but no review of the lawfulness of those acts is possible.
It is therefore in breach of the Constitution for the legislature to entrust to a single authority acting at first and last instance responsibility both for administrative management and for overseeing that management. The Constitution requires the administrative authorities to be subordinated to the supreme administrative bodies. The Private Broadcasting Authority does not satisfy that requirement.
The Constitutional Court's responsibility for reviewing the decisions of the administrative authorities, entrusted to it by constitutional law, is thereby rendered meaningless. A regulation can be compatible with the Constitution and in accordance with the principle of the rule of law only if the Constitutional Court can conduct a comprehensive review of all State administrative acts.
This is not the case in relation to the Private Broadcasting Authority.
From a rule-of-law perspective, the duty of the administrative authorities to comply strictly with the law within the meaning of Article 8 of the Constitution, and not just to respect fundamental rights, must be guaranteed.
These considerations apply in any event to section 13 of the Regional Radio Broadcasting Act in the version in force on 5 December 1997, the date of the impugned decision.
The relevant provision of the Regional Radio Broadcasting Act is therefore unconstitutional and must be repealed.”
Article 144 of the Federal Constitution Act (Bundes-Verfassungsgesetz), in so far as relevant, reads as follows:
“(1) The Constitutional Court shall hear complaints against decisions of the administrative authorities, including those of independent administrative tribunals, where the applicant claims that the decision has infringed a right secured by the Constitution or that his or her rights have been violated by the enforcement of a regulation contrary to the law, an Act contrary to the Constitution or an international treaty incompatible with Austrian law. A complaint may only be lodged once all other remedies have been exhausted.
(2) Up to the time of the hearing the Constitutional Court may, by means of a decision, decline to accept a case for adjudication if it does not have sufficient prospects of success or if it cannot be expected that the judgment will clarify an issue of constitutional law. The Court may not decline to accept for adjudication a case excluded from the jurisdiction of the Administrative Court by Article 133.”
Section 82(1) of the Constitutional Court Act (Verfassungsgerichtshofs-gesetz) reads as follows:
“Appeals shall only lie under Article 144 (1) of the Constitution once administrative remedies have been exhausted and within six weeks of the decision taken at last instance being served on the plaintiff.”


ITEMID: 001-96218
LANGUAGEISOCODE: ENG
RESPONDENT: UKR
BRANCH: CHAMBER
DATE: 2009
DOCNAME: CASE OF MATSYUK v. UKRAINE
IMPORTANCE: 3
CONCLUSION: Preliminary objection joined to merits and dismissed (non-exhaustion of domestic remedies);Violation of Art. 6-1;Non-pecuniary damage - finding of violation sufficient
JUDGES: Isabelle Berro-Lefèvre;Karel Jungwiert;Mirjana Lazarova Trajkovska;Mykhaylo Buromenskiy;Peer Lorenzen;Rait Maruste;Renate Jaeger
TEXT: 5. The applicant was born in 1938 and lives in Bila Tserkva.
6. Between 1998 and 2000 the Bila Tserkva Tax Police (“the police”) instituted and subsequently discontinued several sets of criminal proceedings against the applicant for property embezzlement and tax evasion.
7. On 6 November 2001 he claimed compensation from the police for pecuniary and non-pecuniary damage in respect of the above proceedings.
8. By a letter of 23 November 2001 the police informed the applicant that his claims had to be rejected as unsubstantiated. They noted that he had been found guilty and amnestied in one set of the proceedings and that the property which had been seized from him in the course of the proceedings had in fact remained in his possession.
9. On 10 December 2001 the applicant repeated his claim, which remained without reply.
10. On 20 February 2002 he brought proceedings before the Bila Tserkva Town Court (“the Bila Tserkva Court”) against the police, claiming compensation for pecuniary and non-pecuniary damage in respect of the criminal proceedings against him.
11. On 4 March 2002 the court stayed the examination of his claim in the part concerning the pecuniary damage having indicated some shortcomings which had to be rectified by 27 March 2002. It referred to section 12 of the Act “On the procedure of compensation for damage caused to citizens by unlawful actions of bodies of inquiry, pre-trial investigation authorities, prosecutors and courts” (“the Compensation Act”), according to which the amount of compensation for pecuniary damage was to be established by a resolution of the respective authority (the police in the present case). The court noted that the police had rejected the applicant's claim for such compensation by their letter of 23 November 2001 and that the applicant had not introduced a judicial appeal against that refusal. As to his claim in the part concerning the non-pecuniary damage, it was subsequently examined by the domestic courts and rejected as unsubstantiated.
12. On 26 March 2002 the applicant introduced a complaint, by which he challenged the refusal of his claim by the police. Referring to his two requests to them of 6 November and 10 December 2001, he argued that he had made every attempt to settle the issue before bringing the judicial action.
13. On 23 April 2002 the court rejected the above claim as time-barred, referring to the fact that the applicant had failed to raise it within six months after he had become aware of the discontinuation of the criminal proceedings against him (February 2000).
14. On 25 October 2002 the Kyiv Regional Court of Appeal (“the Court of Appeal”) quashed the above decision on the applicant's appeal and remitted the case for fresh examination. It noted that the first-instance court had wrongly considered that the applicant's claim concerned the criminal proceedings against him. Instead, it should have been deemed to concern the refusal of the police to award him compensation for pecuniary damage. It further noted in that connection that the first-instance court had failed to clarify whether the police had issued a resolution concerning the applicant's compensation claim.
15. On 21 November 2002 the Bila Tserkva Court refused to consider the applicant's complaint, since no resolution in that respect had been issued by the police in accordance with section 12 of the Compensation Act. The court also relied on the fourth paragraph of Article 248-3 of the Code of Civil Procedure in the part compliant with the Constitution pursuant to the decision of the Constitutional Court of 23 May 2001. It considered that it had no jurisdiction over the case, as the aforementioned provision provided for “a different procedure for lodging claims”, namely through challenging a resolution of the police. Accordingly, the court instructed the applicant that he could apply to the tax police “for settling the compensation issue under the legally envisaged procedure”.
16. The applicant appealed, submitting that the first-instance court had been unduly formalistic as the police had clearly stated their position in the letter of 23 November 2001. He further argued that he could not be held responsible for the inadequate form of the response to his claim.
17. On 17 January 2003 the Court of Appeal upheld the finding of the Bila Tserkva Court that given the absence of a resolution there was no procedural basis for the judicial examination of the applicant's claim.
18. On 21 March 2003 the Supreme Court of Ukraine rejected the applicant's cassation appeal as unsubstantiated.
19. The relevant constitutional provisions, as well as references to the pertinent practice of the Constitutional Court and the Supreme Court, can be found in Ponomarenko v. Ukraine, no. 13156/02, §§ 15, 17 and 19, 14 June 2007.
20. The relevant provisions of the Compensation Act are cited in the partial admissibility decision of 15 January 2008 concerning this application.
21. Paragraph 4 of Article 248-3 of the Code of Civil Procedure 1963 (as worded at the material time) read as follows:
“The following complaints shall be outside the courts' jurisdiction:
- ... against actions or acts of an official of a body of inquiry, preliminary investigation, prosecution or court with regard to which a different procedure for lodging claims is established....”
By decision of the Constitutional Court of Ukraine No. 6-pп/2001 of 23 May 2001 this provision was declared unconstitutional in the part concerning lack of the courts' jurisdiction to examine complaints “against actions or acts of an official of a body of inquiry, preliminary investigation, prosecution...”, where the legislation provided only for extrajudicial settlement.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1