ITEMID: 001-83178
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: ADMISSIBILITY
DATE: 2007
DOCNAME: TYURINY v. RUSSIA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Loukis Loucaides
TEXT: The applicants, Mr Yevgeniy Pavlovich and Mrs Nadezhda Alekseyevna Tyuriny are Russian nationals who were born in 1932 and 1943 respectively and live in Novosibirsk. They are represented before the Court by Mr I.V. Novikov, a lawyer practising in Novosibirsk. The Russian Government (“the Government”) were represented by Mr P. Laptev, Representative of the Russian Federation at the European Court of Human Rights.
The facts of the case, as submitted by the parties, may be summarised as follows.
The applicants are spouses. They receive old-age pensions.
On 1 February 1998 the Law on the Calculation and Adjustment of State Pensions (“the Pensions Act”) introduced a new method of calculation of retirement benefits based on so-called “individual pensioner coefficient” (“the IPC”). The IPC was the ratio between an individual’s wages at the moment of retirement and the national average rate and was meant to maintain a link between a person’s pension and previous earnings.
The authority in charge of the applicants’ pensions – the Pension Fund Agency of the Zayeltsovskiy District of Novosibirsk (“the Fund”) – decided that the IPC to be applied to them should be 0.525. The applicants considered that this decision was arbitrary as it conflicted, in their opinion, with the Pensions Act. They brought a court action against the Fund for an increase of their pensions in accordance with Pensions Act.
On 7 October 1999 the Zayeltsovskiy District Court of Novosibirsk (“the District Court”) found for the applicants. It held that since the defendant had misinterpreted the Pensions Law, the applicants’ pensions should be increased in line with an IPC of 0.7. The court also recovered the pension arrears in the amount of 1,242.10 Russian roubles (RUB) and indexation in the amount of RUB 2,670.25 in favour of the first applicant, RUB 1,169.75 and 2,529.5 respectively, in favour of the second applicant.
On 7 December 1999 the Novosibirsk Regional Court (“the Regional Court”) rejected an appeal by the defendant. On the same date the judgment of 7 October 1999 acquired legal force.
On 21 January 2000 the Fund requested the District Court to re-consider its judgment of 7 October 1999 due to discovery of new circumstances. The Fund submitted that on 29 December 1999 the Ministry of Labour and Social Development had issued an Instruction on the Application of Limitations established by the Pensions Law (“the Instruction”). The instruction clarified how the Pensions Act should be applied. The Fund contended that since it had been unaware of that instruction at the moment when the judgment was passed, the judgment would have to be reconsidered. The Fund claimed that it had learned about the Instruction on 12 January 2000 and requested the District Court to postpone the enforcement proceedings of the judgment of 7 October 1999 until the examination of the request to re-consider the judgment.
On 27 January 2000 the District Court rejected the defendant’s request to postpone the enforcement proceedings. The Regional Court upheld the decision on appeal on 30 March 2001.
On 21 August 2000 the Fund submitted a new application for reconsideration of the judgment of 7 October 1999 due to discovery of new circumstances. This time the Fund claimed that on 24 April 2000 the Supreme Court of the Russian Federation had dismissed the complaint by a group of individuals challenging the Instruction. The Supreme Court found that the Ministry of Labour had acted within its competence when it had issued the Instruction, and that the Ministry’s interpretation of the Pension Act had been correct. The Fund contended that since it had been unaware of the decision of 24 April 2000 at the time of the judgment of 7 October 1999, the judgment would have to be reconsidered.
On 22 September 2000 the District Court granted the Fund’s application. The Court applied Article 333 of the Code of Civil Procedure according to which judgments could be re-considered in case of discovery of significant circumstances which were not and could not haven been known to the party concerned. The court found that the Instruction, as upheld by the Supreme Court, could serve as such a circumstance. No appeal lay against this decision. The court quashed the judgment of 7 October 1999, as upheld on 7 December 1999, and remitted the case for a new examination to the first instance court. The first applicant was present at the hearing.
After a fresh examination on 14 February 2001 the District Court dismissed the applicants’ claims in full having applied the Instruction. On 13 March 2001 the Regional Court rejected the applicants’ appeal against the judgment.
In the meantime, the applicants filed a new court action against the Pension Agency for wrong calculation of their retirement pension. On 1 February 2001 the District Court rejected their claims. By a decision of 15 March 2001 the Regional Court upheld the judgment.
Article 333 of the RSFSR Code of Civil Procedure of 1964 (in force at the material time) provided for grounds for reconsideration of final judgments on the basis of “newly-discovered circumstances”. Such grounds included, inter alia, significant circumstances which were not and could not have been known to the party which applied for reconsideration, and invalidation of a court ruling or another authority’s decision which had served as a legal basis for the judgment in question.
Article 334 required that an application for reconsideration of a judgment owing to the discovery of new circumstances should be lodged within three months after the discovery of the circumstances.
Pursuant to Article 337 a court, after having examined an application for reconsideration of a final judgment on the basis of newly-discovered circumstances, should either grant such an application and quash the final judgment or dismiss the application. Such a decision was not amenable to appeal.


ITEMID: 001-89575
LANGUAGEISOCODE: ENG
RESPONDENT: AUT
BRANCH: CHAMBER
DATE: 2008
DOCNAME: CASE OF KRONE VERLAG GMBH & CO KG v. AUSTRIA
IMPORTANCE: 4
CONCLUSION: Violation of Article 10 - Freedom of expression -{General}
JUDGES: Anatoly Kovler;Christos Rozakis;Elisabeth Steiner;George Nicolaou;Giorgio Malinverni;Khanlar Hajiyev
TEXT: 6. In 1996 the T association and another association founded the Techno-Z FH Forschungs- und Entwicklungs-GmbH (hereafter “Techno-Z FH”). This non-profit company was to promote and offer scientific support to the development of the information and communication society by conducting research projects and scientific studies in this field, by offering training, organising public presentations, editing publications and carrying out projects with other similar institutions. Techno-Z FH was sponsored by, inter alia,the Region of Salzburg.
7. In May 1999 Mr Dollhäubl, chairman of the T association at the time, was dismissed. The association held a press conference at the same time and praised the development of Techno-Z FH.
8. The applicant company subsequently published a series of articles about Mr Bruck, the managerial director of Techno-Z FH, in its daily newspaper Neue Kronenzeitung.
9. On 27 May 1999 the applicant company published an article headlined “Secret report discloses new scandal in Techno-Z!” (Geheimbericht enthüllt neuen Skandal um Techno-Z!) The relevant parts read as follows:
(German original)
„.[...] Ein streng geheimer Bericht deckt haarklein auf, wie locker es „Medienprofessor“ Peter A- Bruck in seiner Techno-Z-Firma bei Finanzen nahm!
Bruck ist Geschäftsführer einer Techno-Z-Firma, und zwar der „FH Forschungs- und Entwicklungs-GmbH“. Und kassiert dort fürstlich wie ein bisher geheimgehaltener „Statusbericht“ über die Gesellschaft enthüllt. Bei der Kontrolle 1998 fielen die Prüfer fast vom Hocker. Bruck hatte zu der Zeit keinen gültigen Dienstvertrag, laut altem Vertrag hätte er rund 72.000 S brutto verdient. Doch der „Medienprofessor“ ließ sich 80.000 S im Monat überweisen, dazu noch 10.000 S als „Prämienauszahlung“. Es konnte „nicht nachvollzogen werden“, mit welchem Recht sich Bruck die insgesamt 90.000 S monatlich genehmigte... Doch damit nicht genug: Auch die Reiselust ließ sich der Herr vom Techno -Z finanzieren. Allein für 1997 verrechnete er 392.170,24 S an Dienstreisen. Und für 1998 waren wieder 400.000 S für Brucks Dienstausflüge vorgesehen. Immerhin ein guter Tausender pro Tag... Und selbst damit war die finanzielle Gier noch nicht gestillt: Eine hohe sechsstellige Summe für „Tantiemen“ kam noch dazu, also eine Art Prämie. Bei einer Schulung für das Arbeitsmarktservice (AMS) ließ Bruck sich 142.000 S überweisen. Denn seine Firma hätte 247.090 S Gewinn gemacht. Falsch sagten die Prüfer. Es waren 200.000 S weniger. [...]”
(Translation from German)
„....a very secret report discloses in great detail how lax the “media professor” Aurelius Bruck was about the finances in his company Techno-Z! ... At the 1998 audit the auditors almost fell off their chair. Bruck had no valid employment contract at that time; according to his old contract, he would have earned a gross salary of approximately ATS 72,000. But the “media-professor” had transferred himself ATS 80,000 per month and a further “premium” of ATS 10,000. It was not possible to ascertain by which right Bruck was helping himself to a total of ATS 90,000 per month... But this was not enough: Bruck had also financed his wanderlust. For 1997 alone he charged ATS 392,170.24 for business trips. And for 1998 another ATS 400,000 were provided for Bruck’s business excursions. That’s a good thousand [schillings] per day...But even with this, [Bruck’s] financial avarice was not satisfied: a high six-figure sum for ‘royalties’, a kind of premium, was added. At a training workshop for the Labour Market Service Bruck had transferred himself ATS 142,000 as his company had made a profit of ATS 247,000. Wrong said the auditors. It was ATS 200,000 less. ...”
10. On 28 May 1999 the applicant company published another article headlined “Techno-Z: Scandal concerning media professor - bank disclosed trick- ... The business dealings of Mr Bruck.” (Techno-Z: Skandal um „Medienprofessor” – Bank deckte Trick auf – [...] – Die Geschäfte des Herrn Bruck). The relevant parts read as follows:
(German original)
„Die Geschäfte des Herrn Bruck
Der Skandal rund um den sogenannten “Medienprofessor” Peter Aurelius Bruck am Salzburger Techno-Z wird immer ärger: Nicht nur bei Gehalt, Prämien und Dienstreisen langte Bruck voll zu. Ohne Genehmigung streckte er beim Firmenkonto den Überziehungsrahmen. Als die Bank das merkte, war die Hölle los! Die „Krone“ hat die seltsamen Geschäfte des Professors aufgedeckt. Ein Geheimbericht zeigt, wie locker es dieser Peter Aurelius Bruck mit Finanzen nahm:
· Für sich selbst 90.000 S im Monat (Gehalt plus Prämien), dafür gab es weder Vertrag noch Beschluss.
· Rund 400.000 S zahlt die Techno-Z-Firma jährlich für „Dienstreisen“ Brucks.
· Dazu kassierte er jährlich eine hohe sechsstellige Summe an „Tantiemen“. Unberechtigt, wie die internen Prüfer nachwiesen.
Doch damit nicht genug: Eigenmächtig ließ er auf Firmenkonten den Überziehungsrahmen von 2 auf weit über 3 Millionen S ausweiten. Ohne Genehmigung! Als die Bank auf die Ungereimtheit kam, holte sie unverzüglich für die letzten Auszahlungen, das ganze Geld zurück. Diese Zahlungen waren ja nicht gedeckt! Leidtragende waren die Mitarbeiter: Wegen Brucks Finanz-Tricks wurde 1998 einmal sogar ihr Gehalt einige Zeit nicht ausbezahlt! Übrigens: Einer der Kontrolleure, die diese unfaßbaren Zustände aufgedeckt haben, bekam aus Rache nicht einmal sein Honorar bezahlt... [...]”
(Translation from German)
„The scandal concerning the so-called ‘media-professor’ Peter Aurelius Bruck at the Salzburg Techno-Z gets worse and worse: not only with his salary, premiums and business trips did Bruck really help himself. Without authorisation he exceeded the credit line of the company’s bank account. When the bank noticed this all hell broke loose! The Krone has disclosed the most dubious business dealings on the part of the professor. A secret report shows how lax Aurelius Bruck was about the finances: he helped himself to ATS 90,000 per month (salary plus premium), there was neither a contract nor a decision authorising this. The Techno-Z company pays approximately ATS 400,000 yearly for B’s ‘business trips’. He also collected a yearly high six-figure for ‘royalties’. By the way, one of the auditors who disclosed this inconceivable state of affairs was not even paid his fees – out of revenge ...”
11. This article was followed by a further text in a small box which stated:
(German original)
„[...]Die Spesenritter und Abkassierer haben tatsächlich dem Ansehen Salzburgs als Zukunftsland schwer geschadet. Schausberger hat die Gefahr klar erkannt: Über der Grenze hat Bayerns Ministerpräsident Edmund Stoiber viele vorbildhafte Technologieparks eingerichtet. Wenn es um Merkwürdigkeiten geht, so taucht in Salzburg immer wieder der Name des sogenannten Medienexperten Peter Aurelius Bruck auf. Der umtriebige Professor hat einen Schutzpatron: Niemand geringeren als Landesvize Arno Gasteiger. Das beweist auch die Teilnehmerliste jenes Geheimtreffens, das Gasteiger im Techno-Z organisieren ließ (siehe Bericht). Da war zunächst das seltsame „Bürgernetz“, eine Bruck-Idee, für die locker Millionen an Steuer- & Stromgeld flott gemacht werden sollten, Kinder hätten damit Zugang zu den Internet-Pornoseiten der Sex-Industrie gehabt. [...]”
(Translation from German)
“... Expense account profiteers and rip-off merchants (Spesenritter und Abkassierer) have really damaged Salzburg’s reputation as Region of the Future ... Whenever the discussion turns to dubious affairs, the name of the so-called media expert Peter Aurelius Bruck crops up again and again in Salzburg .... First, there was the strange “citizen web”, one of Bruck’s ideas, for which millions of tax money was to be made readily available. had [With this idea] children would have had access to the pornographic sites of the internet sex industry ...”
12. On 29 May 1999 a further article entitled “Techno-Z: the second audit also shows shortcomings in Bruck’s company - How he deceived colleagues – The way Mister ‘Media Professor’ cheated” (Techno-Z: Auch zweite Prüfung zeigt arge Mangel in Brucks Firma – Wie er Mitarbeiter tauschte – So trickste der Herr „Medienprofessor”) stated:
(German original)
„Kein Ende im Skandal um den sogenannten “Medienprofessor” Peter Aurelius Bruck und seine Firma im Salzburger Techno-Z. Ein fettes Gehalt, satte Tantiemen und jährlich 400.000 S für Dienstreisen lässt sich der Herr Professor bezahlen. Auch ein zweites Prüfer-Team fand schwere Mängel in Brucks Firma! Die Finanzen in Brucks Firma waren abenteuerlich. Das belegt ein streng geheimer „Statusbericht“ in dem zwei Prüfer seine Geschäfte genau untersuchten. [...]”
(Translation from German)
“No end to the scandal concerning the so-called ‘media professor’ Peter Aurelius Bruck and his company in the Salzburg Techno-Z. Mister Professor has paid himself a big salary, big royalties and yearly ATS 400,000 business trips. A second team of auditors has also established serious shortcomings in Bruck’s company! The finances of Bruck’s company were adventurous. This is established by a very secret ‘status report’ in which two auditors examined his affairs thoroughly ...”
13. On 30 May 1999 an article entitled “Concerning ‘media professor’ Bruck - Auditor has been waiting for his money for a year - Techno-Z: Is a request for bankruptcy looming?” (Es geht um „Medienprofessor” Bruck – Prüfer wartet seit einem Jahr auf Geld – Techno-Z: Droht Konkursantrag?) stated:
(German original)
“Jetzt wird es eng für den “Medienprofessor” Peter Aurelius Bruck und seine Firma im Salzburger Techno-Z: Zwei Prüfer haben ja in penibler Kleinarbeit die Finanz-Tricks des Herrn durchleuchtet und arge Mängel entdeckt. Einer der Prüfer bekam noch immer kein Honorar. Er droht nun Konkursantrag gegen Bruck an! [...]”
(Translation from German)
“Now it’s getting tight for the ‘media professor’ Peter Aurelius Bruck and his company in the Salzburg Techno-Z: two auditors have x-rayed in fastidious detail the financial tricks of [this] gentleman and have discovered serious shortcomings. One of the auditors has not yet received his fees. He is now threatening to file a bankruptcy petition against Bruck! ...”
14. A further article of 5 June 1999 entitled “Report about ‘media professor’ earned ‘thanks and consternation’” (Bericht über „Medienprofessor” erntete „Dank und Entsetzen”) stated inter alia:
(German original)
“[...] Die Firma war so arg geführt, daß “umgehend” ein kaufmännischer Chef neben Bruck bestellt werden mußte, um “solides Rechnungswesen und eine entsprechende Finanzgebarung” zu garantieren! [...]”
(Translation from German)
“... The company was so badly managed that a commercial director had to be appointed ‘immediately’ in addition to Bruck to guarantee a solid accounting system and proper management of public finances ...”
15. Lastly, on 14 June 1999 an article entitled “Further storm about wayward affairs in the Techno-Z company” (Neuer Wirbel um eigenwillige Geschäfte in Techno-Z-Firma) stated
(German original)
“[...]In seiner Firma im Salzburger Techno-Z gönnt er sich ein sattes Monatsgehalt, fette Tantiemen und 400.000 S für Dienstreisen. Und jetzt werden eigenwillige Geschäfte ruchbar, weil Bruck in der Firma auch Verwandte beschäftigt. [...] Da verwundert es doch, dass der Herr Professor seine eigene Tochter mitarbeiten ließ. Noch dazu um einen etwas höheren Stundenlohn als andere Mitarbeiter der Firma...[...]”
(Translation from German)
“... In his company in the Salzburg Techno-Z he helps himself to a big salary, big royalties and ATS 400,000 per year for business trips. Wayward affairs are becoming known now as Bruck also employs relatives in the company ... In this context there is still astonishment that Mister Professor gave his own daughter a job. Moreover at a slightly higher salary than other employees in the company ...”
16. On 21 October 1999 Mr Bruck was dismissed from his post as managerial director.
17. Referring to the above statements, Mr Bruck instituted proceedings in the Vienna Regional Criminal Court (Landesgericht) under Sections 8a and 6 of the Media Act (Mediengesetz) claiming compensation and publication of the judgment.
18. The case was subsequently delegated to the Salzburg Regional Court, which held a hearing at which evidence was heard from Mr Bruck, the T association’s managerial director, its chairman and his deputy at the time of the events, the commercial director of Techno-Z FH at the time of the events, the four auditors in question and the journalist who had written the articles at issue.
19. On 6 April 2001 the Regional Court, sitting as a single judge, dismissed Mr Bruck’s claim. It found that the impugned statements consisted partly of value judgments with a sufficient factual basis and partly of true statements of fact. It noted that the auditors Mr Dollhäubl and Mr Kittl had established in a report of March 1998 serious shortcomings in the book-keeping and accounting system of Techno-Z FH. They found that there had been no composite book-keeping for the year 1997 and that this system did not correspond to the principles of proper bookkeeping under the Book-keeping Act (Rechnungslegungsgesetz). The management board of the T association had taken note of this report with thanks and consternation. Despite that report the financial status of the company had been unclear at the time because of missing data. The management board had subsequently decided to appoint a commercial director in addition to Mr Bruck in order to guarantee a solid accounting system and management of public finances.
20. A further report, by an external firm of business auditors commissioned by Mr Bruck, although more favourable, had also established shortcomings in the book-keeping and accounting system and had made recommendations for improvements. For instance, contrary to the company agreement, investments over a certain amount had been made without the authorisation of the company owners. Furthermore, a bank account for a certain project had been registered in Mr Bruck’s name. Therefore, the articles’ statement that Mr Bruck was lax about the finances of Techno-Z FH was true.
21. The court further noted that Mr Bruck’s former contract had expired at the end of December 1997 and, although the main features of a new contract had been discussed, there had been no agreement on its fundamental aspects. Therefore, at the time of the audit in March 1998 Mr Bruck did not actually have a valid employment contract and the payouts, although not considered as arbitrary and tolerated, had taken place without any legal basis. Mr Bruck had not contested the amount of the sums mentioned in relation to his salary and expenses for business trips. The notions “wanderlust” and “business excursions” and “financial avarice”, “expense account profiteer”, “rip-off merchant” and “so-called media expert” and the statement that the finances in the company were “adventurous” were permissible value judgments. The fact that Mr Bruck had wrongly calculated royalties had been proven by the audit report of Mr Dollhäubl and Mr Kittl. The statement that Mr Bruck had used financial tricks was therefore also true. Mr Bruck had in fact once exceeded the credit line of the company and had acknowledged that Mr Kittl had not been paid his fee. His argument that Mr Kittl had not been commissioned by Techno-Z FH was questionable and, in any event, did not exclude the possibility that another motive for the refusal to pay Mr Kittl had been revenge, which, moreover, appeared obvious in view of the consequences of his report. Mr Kittl had actually requested the opening of bankruptcy proceedings against Techno-Z FH. It was true that Mr Bruck’s idea of providing every household in Salzburg with free internet access would have allowed children to access pornographic sites. Mr Bruck had employed his daughter in his company at a slightly higher salary per hour than other employees.
22. The court noted, lastly, that the applicant company could rely on Article 10 of the Convention, particularly as there was substantial public interest in the subject matter because public funds were at stake.
23. On an appeal by Mr Bruck, the Linz Court of Appeal (Oberlandesgericht), having held a hearing and sitting as a bench of three judges, quashed that judgment on 25 July 2002. It found that the Regional Court had left essential evidence unconsidered and had given pseudo-reasons for its findings. In addition to the facts established by the Regional Court and referring to the statements of the witnesses made before that court, the Court of Appeal set out the following background to the case:
24. Mr Bruck was a former honorary professor at the Salzburg University and academic director of a technical college. In his function as managerial director of Techno-Z FH he had had responsibility, in particular, for acquiring research and development subsidies from national, European and international bodies in which task he was highly successful. The travel expenses for the corresponding business trips had never been challenged and appeared reasonable in the light of their development over the years and in relation to the travel expenses of the company’s other employees.
25. After Mr Bruck’s former contract had expired at the end of December 1997, he was able to base his salary claim on an oral agreement of 23 December 1997 which was recorded in a note for the file and provided for a base amount of 80,000 Austrian Shillings (ATS) and a premium depending on any surplus produced by the company, this to be paid as monthly instalments of ATS 10,000. The taking of a decision on Mr Bruck’s contract was repeatedly adjourned because no agreement on the concrete calculation of the company’s surplus could be reached.
26. While it was true that Mr Kittl and Mr Dollhäubl’s report of March 1998 established shortcomings in the accounting system, criticised the fact that Mr Bruck’s salary was paid without any underlying contract or decision and that royalties for the year 1996 had been wrongly calculated, that report appeared partial and subjective: Mr Kittl had previously praised the accountancy and organisation of Techno-Z FH. Furthermore, Mr Kittl and Mr Dollhäubl had been present when the basic agreement on Mr Bruck’s further contract had been reached on 23 December 1997. Lastly, Mr Kittl and Mr Dollhäubl had simply noted the lack of vouchers book-keeping in 1998 without questioning the reason for it, namely a computer crash as established by the subsequent audit by an external accounting firm. The report by that firm, commissioned by Mr Bruck, found that the accounting system and management of public finances corresponded to the average standard of a private institution and remarked critically that the company had not adapted its organisation structure to the rise of its business turnover fast enough. It did not confirm the serious shortcomings outlined in Mr Kittl and Mr Dollhäubl’s previous report.
27. The commercial director was in fact appointed to relieve Mr Bruck who was busy handling other accountancy matters. It was true that in April 1998 Mr Bruck had exceeded the company’s credit line; however, he handed in the corresponding authorisation a few days later and was absolved by the management board as he had demonstrated that the overdraft had been necessary. When drawing up a proposal for a “citizens’ web” in 1997, Mr Bruck had wished to create a local educational internet and not provide children with access to pornographic internet pages. Furthermore, there was a possibility of locking certain pages of the internet.
28. Mr Bruck had properly refused to pay Mr Kittl’s fees because it was the T association and not Techno-Z FH which had commissioned him. Mr Kittl’s subsequent request that bankruptcy proceedings be instituted against the company had been unsuccessful because he had not submitted any proof of the company’s insolvency. Mr Bruck had employed several trainees during the holidays, including his daughter, who had been paid between approximately seven and nine Euros (EUR) per hour, while other trainees had been paid EUR seven per hour and some EUR ten per hour. There was no indication of preferential treatment as the amount paid to Mr Bruck’s daughter corresponded to her skills and the activities she had carried out.
29. The court found that in its overall context the series of articles wrongly accused Mr Bruck of fraudulent conversion, unjustified enrichment and commercial ineptitude. The applicant company’s reporting did not comply with the standards of journalistic diligence as it had not carried out any fair and objective research and had not questioned Mr Bruck. As the majority of the reported events dated back more than a year the journalist concerned had been under no time pressure to research the true facts behind the case. Having regard to the gravity of the criticism levelled at Mr Bruck, who had meanwhile been dismissed in order to get the company and himself out of the applicant company’s firing line, the court ordered the applicant company to pay EUR 14,500 in compensation.
30. The applicant company subsequently filed a request for rectification of the transcript of the hearing before the Court of Appeal. It submitted that the transcript wrongly reported that the full file (including the transcripts of the examination of the evidence conducted before the Regional Court) had been read out. On 9 January 2003 the Court of Appeal granted this request and rectified the transcript to the effect that the full file had not been read out as, according to the statement of all members of the Court’s bench, the parties had waived their right to have the full file read out.
31. Section 6(1) of the Media Act provides for the strict liability of the publisher in cases of defamation; the victim can thus claim damages from him. In this context “defamation” has been defined in Article 111 of the Criminal Code (Strafgesetzbuch) as follows:
“1. Anyone who in such a way that it may be perceived by a third person accuses another of possessing a contemptible character or attitude or of behaviour contrary to honour or morality and of such a nature as to make him contemptible or otherwise lower him in public esteem shall be liable to imprisonment not exceeding six months or a fine ...
2. Anyone who commits this offence in a printed document, by broadcasting or otherwise in such a way as to make the defamation accessible to a broad section of the public shall be liable to imprisonment not exceeding one year or a fine ...
3. The person making the statement shall not be punished if it is proved to be true. As regards the offence defined in paragraph 1, he shall also not be liable if circumstances are established which gave him sufficient reason to assume that the statement was true.”
VIOLATED_ARTICLES: 10


ITEMID: 001-115923
LANGUAGEISOCODE: ENG
RESPONDENT: IRL
BRANCH: ADMISSIBILITY
DATE: 2012
DOCNAME: COURTNEY v. IRELAND
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Aleš Pejchal;Angelika Nußberger;Ann Power-Forde;Helena Jäderblom;Mark Villiger;Paul Lemmens
TEXT: The applicant, Martina Courtney, is an Irish national who lives in Dublin. She was represented before the Court by Mr. J. MacGuill, a lawyer practising in Dundalk
The applicant is a school traffic warden. She took part in a prison visiting project for which she provided her personal details to the prison authorities for security purposes. During the project she became acquainted with N (in prison for the murder of two persons and charged with the murder of two others) and they began a personal relationship.
At 15.30 on 13 May 2010 (Thursday) the applicant was visited at home by a journalist from the Irish Daily Star newspaper. The journalist sought information on the applicant’s relationship with N. Apart from confirming that she knew N, the applicant refused to comment further. Later that afternoon the journalist returned and the applicant did not make any comment. At 19.00 that day a letter from the journalist was delivered to the applicant’s home: the journalist was writing an article about the applicant’s relationship with N, she was sure of its validity based as it was on information from prison sources and she wanted to give the applicant the opportunity to tell her side of the story. The article would be published the following Sunday (16 May 2010).
On 14 May 2010 the applicant went to visit N. As she entered the prison, she was approached by the journalist and photographed. As she left, the journalist requested the applicant to tell her side of the story. The applicant made no comment and contacted her solicitor who sent a letter by facsimile to the newspaper on the same day. The letter underlined that the proposed article concerned the applicant’s private affairs and was devoid of any real public interest so that its publication would breach the code of practice of the Press Council of Ireland as well as the applicant’s constitutional and Convention rights. Since her vital personal interests would be irreparably damaged, the letter called on the newspaper not to publish the story. A response was requested by 11.00 the following day, failing which the applicant would apply to the High Court for protection. The newspaper did not respond.
On 15 May 2010 the applicant’s solicitors contacted the High Court duty judge (it was a Saturday). They applied to that judge, on an ex parte basis and grounded upon a draft Plenary Summons and the applicant’s affidavit, for an interim injunction restraining publication of any material disclosing her relationship with N; for a declaration that any such publication would infringe her right to privacy contrary to the Convention and the Constitution; and for damages for breach of her Convention and constitutional right to privacy. The applicant’s grounding affidavit underlined that she was a private person of modest means and pointed to the prejudicial impact of the inevitable media scrutiny on her, her two young sons and her ongoing employment. Since the story was not a matter of any real public interest, the devastating consequences for her and her family’s personal dignity and private life would be disproportionate.
In an ex tempore judgment dated 15 May 2010 the High Court refused to grant the injunction. She was a private citizen with a right to respect for her private life and there was no public interest in revealing that she was in a relationship with N. Journalism which invaded private life in the threatened manner was meretricious and worthless. However, in Foley v. Independent Newspapers ([2005] IEHC 14), the High Court had found that the common law rule enunciated in Bonnard v. Perryman ([1891] 2 Ch 269) had survived the Human Rights Act 1998 in the United Kingdom and applied in Ireland. The rule provides that, in all but exceptional cases, the court should refuse injunctions. It can only grant such injunctions where it is shown that there is no prospect of successfully defending the substantive action. The High Court judge considered this was a limited protection as it seemed to allow even worthless publication the same level of protection as is accorded to journalism that has redeeming characteristics. He noted the Supreme Court’s recent confirmation that the Convention does not have direct applicability in Irish law and only arises when that law falls to be interpreted in some fashion. He queried whether the rule in Bonnard would survive a Convention challenge but acknowledged that this was a matter for another day and another court. Applying the rule in the applicant’s case, the High Court judge concluded that he could not make an order restraining the publication.
On 16 May 2010 the Irish Daily Star published on its front page a story entitled “Lady and the Killer”. It contained a series of photographs of the applicant and the associated article read, in so far as relevant, as follows:
“Meet the lollipop lady who has struck up an unlikely bond with double murderer N. Most mornings [the applicant] helps primary school kids across the road at a plush south Dublin school. But once her work is done, the mum-of-three regularly cycles into town to visit high-profile convicted double killer N. ... Prison sources have revealed the pair have been seen being openly affectionate in the visitors’ centre at the jail. For the past few months, [the applicant], from Terenure, has been visiting psycho N. twice a week in [prison]. Jail sources have told Star Sunday that killer N. – who has admitted that he is mentally ill – is “besotted” with the attractive woman.
...“[the applicant] always sits up on the table between her and Mark in order to be closer to him,” said a source. “She often snuggles in to his chest and they embrace a lot, which can often be a bit embarrassing for the other visitors.” However, when [the applicant] was confronted by Star Sunday at her home on Thursday evening, she denied she was romantically involved with N.
....Sources at the jail said [the applicant] visits the killer twice a week, usually every Tuesday and Friday between 10am and midday.”
On 18 May 2010 the applicant formally filed the Plenary Summons on which she had relied when she applied for the interim injunction and in which she claims damages for a breach of privacy. It would appear that this substantive action has not been pursued further.
On 24 September 2010 the applicant’s Counsel advised that, since the application for an injunction had been refused and the article published the following day, there were no further steps open to the applicant through which she could have prevented the publication. In so concluding, Counsel noted that it had not been open to her to appeal to the Supreme Court on 15 or 16 May 2010 because that court was not sitting on either of those days.
In this case the High Court outlined the criteria for deciding interlocutory injunction requests. It recalled the judgment of the Supreme Court in Campus Oil v. Minister for Industry and Energy (No. 2) ([1983] I.R. 88) and noted the guidelines for the granting of an interlocutory prohibitory injunction. A plaintiff had to demonstrate:
(a) the existence of a serious question to be tried;
(b) the inadequacy of damages; and
(c) that the balance of convenience lies in favour of the grant of the injunction.
While resolving these issues in favour of an applicant would, in many cases, result in an injunction being granted, it was not always so. In addition to these three questions, there might be many other special factors to be taken into consideration in the particular circumstances of individual cases. Over the years, a number of cases had been identified where the guidelines, even if satisfied, do not result in an interlocutory injunction being granted. A good example of this was the rule in Bonnard v. Perryman ([1891] 2 Ch 269) which the High Court in Foley deemed to be of ‘some relevance’ to an application for an injunction restraining publication. Although the courts undoubtedly possessed the requisite jurisdiction to grant interlocutory injunctive relief, the rule in Bonnard provides that in all but exceptional circumstances they should not issue an interlocutory injunction to restrain the publication of a libel which the defence sought to justify except where it was clear that the defence would fail. The rule was based on the need not to restrict the right of free speech by interfering before the final determination of the matter save in a clear case of an untrue libel. The High Court in Foley noted that the right to freedom of expression as provided for in the Constitution and in the Convention is an important right and one which the courts must be extremely circumspect about curtailing particularly at the interlocutory stage of a proceedings. While refusing to restrict the defendant’s right between the making of the application for an injunction and the trial of the action, it did, however, direct an early trial and heard submissions on the delivery of accelerated pleadings.
The rule in Bonnard was approved and followed by the Supreme Court in Sinclair v. Gogarty ([1937] I.R. 377).
This rule reads as follows:
“13. Where an ex parte application has been refused in whole or in part by the High Court an application for a similar purpose may be made to the Supreme Court ex parte within four days from the date of such refusal, or within such enlarged time as the Supreme Court may allow.”


ITEMID: 001-86454
LANGUAGEISOCODE: ENG
RESPONDENT: BGR
BRANCH: CHAMBER
DATE: 2008
DOCNAME: CASE OF PETROV v. BULGARIA
IMPORTANCE: 3
CONCLUSION: Partly admissible;Violation of Art. 6-1;Violation of Art. 8;Violation of Art. 14+8;Violation of Art. 13 (excessive length of the criminal proceedings);No violation of Art. 13 (monitoring of the applicant's correspondence);Non-pecuniary damage - award
JUDGES: Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Peer Lorenzen;Rait Maruste;Snejana Botoucharova;Volodymyr Butkevych
TEXT: 5. On 12 November 1990 the applicant and a Mr S.V. were arrested in Sofia on suspicion of having stolen a car. They were charged by a military investigator, who was competent because at the time Mr S.V. was an army private, and placed in pretrial detention.
6. In the beginning of 1991 Mr S.V. managed to escape during a transfer from one detention facility to another. In May 1991 the applicant was released on bail.
7. On 24 July 1991 the applicant was arrested in Gabrovo on charges of theft. The case was assigned to the Pleven Regional Military Prosecutor’s Office on account of Mr S.V.’s being in the army. There it was joined to other cases pending against Mr S.V., some of which also concerned the applicant.
8. On 5 February 1993 the proceedings were stayed as Mr S.V.’s whereabouts were unknown. According to the applicant, Mr S.V. had settled in Greece, but during the following years had come back to Bulgaria every summer without ever having been stopped or bothered by the authorities, and had even renewed his identity documents.
9. In 2001 the applicant enquired about the state of the proceedings against him. He was informed that Mr S.V. had not been found yet and that the proceedings were still stayed.
10. On 27 July 2001 the investigation was taken up by the Pleven Regional Military Prosecutor’s Office. On 10 August 2001 this Office disjoined the cases against the applicant and assigned them to the Sofia, Varna, Plovdiv and Gabrovo District Prosecutor’s Offices, in accordance with their territorial competence, and to the Sofia Regional Military Prosecutor’s Office.
11. On 28 June 2002 the Plovdiv District Prosecutor’s Office discontinued the investigation against the applicant because the relevant limitation period has expired. On 28 August 2002 the Sofia District Prosecutor’s Office discontinued its investigation for the same reason.
12. On 5 March 2002 the Gabrovo District Prosecutor’s Office dropped certain charges against the applicant and indicted him for a number of others. The case was heard by the Gabrovo District Court, which convicted the applicant in a judgment of 4 November 2002. It seems that applicant did not appeal. Certain other charges against the applicant were dropped by the Gabrovo District Prosecutor’s Office on 28 October 2003.
13. It is unclear whether the cases against the applicant handled by the Varna District Prosecutor’s Office and the Sofia Regional Military Prosecutor’s Office have been discontinued or are still pending.
14. On 4 April 2001 the applicant was taken to the Lovech Prison to serve a sentence of three and a half years’ imprisonment imposed in 2000. Later this sentence was aggregated with several other punishments meted out in separate proceedings. He was released on 29 January 2003.
15. During his stay in prison, the applicant was not allowed to write to his lawyer representing him in various criminal proceedings and in the proceedings before the Court in sealed envelopes, or to talk to her on the telephone. His mail, including the letters to and from his lawyer, was systematically opened and checked. This was confirmed by a letter written on 15 November 2006 by the head of the “Execution of Punishments” directorate of the Ministry of Justice and produced by the Government before the Court. The letter said that pursuant to section 33(1)(c) of the 1969 Execution of Punishments Act (see paragraph 18 below) prisoners’ correspondence was subject to monitoring by the prison administration. It further said that as the applicant had been an inmate, his correspondence had been monitored to ensure the proper implementation of section 37(2) of the Regulations for the application of the Act (see paragraph 19 below).
16. In the summer of 2001 a telephone booth was installed in the prison and the inmates were allowed to use it to call their relatives twice a month. They were told that this facility concerned parents, brothers and sisters, children and spouses. At the request of several inmates the warden apparently informally accepted to extend it to unmarried partners. At first the applicant, who before his incarceration had lived for about four years with Ms S.P. and had had a child with her just forty days before going to prison, was also able to benefit from the opportunity to call his partner on the telephone. However, in August 2001 the warden refused to allow him to avail himself of this facility. The applicant objected, but the warden replied that the law provided for a right to call spouses only and that if the applicant was so attached to his partner and their child, he could always marry her. In the beginning of 2002, following an intervention by the Child Protection Agency, which the applicant’s lawyer had contacted about the matter, he was once again allowed to have telephone conversations with his partner.
17. Articles 30 and 34 of the 1991 Constitution read, as relevant:
“Everyone has the right to meet in confidence with the person who defends him. The confidentiality of their communication shall be inviolable.”
“1. The freedom and secret of correspondence and other communications shall be inviolable.
2. This rule may be subject to exceptions only with the permission of the judicial authorities when necessary for uncovering or preventing serious offences.”
18. Section 33 of the 1969 Execution of Punishments Act (Закон за изпълнение на наказанията), as in force at the relevant time, read, in so far as relevant:
“1. Prisoners are entitled ... to:
...
(c) correspondence and food parcels, which are subject to inspection by the [prison] administration.”
19. Section 37(2) of the regulations for the application of the Act, as in force at the relevant time and until present, provides that if the contents of a letter are such that for security, prison regime or disciplinary reasons it cannot be delivered to the prisoner or dispatched by mail, the inmate must be informed of this and the letter must be put in his file.
20. In June 2002 new provisions regarding persons detained on remand were added to the Act. Subsection 3 of the newly enacted section 132d read as follows:
“The correspondence of the accused and the indicted is subject to inspection by the [prison] administration.”
21. In a decision of 18 April 2006 (реш. № 4 от 18 април 2006 г. по конституционно дело № 11 от 2005 г., обн., ДВ, бр. 36 от 2 май 2006 г.) the Constitutional Court, acting pursuant to a request by Chief Prosecutor, declared this provision unconstitutional. After analysing in detail the relevant constitutional and Convention provisions and making, inter alia, reference to the cases of Campbell v. the United Kingdom (judgment of 25 March 1992, Series A no. 233), Calogero Diana v. Italy (judgment of 15 November 1996, Reports of Judgments and Decisions 1996V) and Petra v. Romania (judgment of 23 September 1998, Reports 1998VII), the court held that a blanket authorisation to inspect the correspondence of all inmates without regard to their particular circumstances and the threat which they allegedly posed to society through such correspondence was contrary to Articles 30 § 5 and 34 of the 1991 Constitution.
22. The subjectmatter of the case was limited to reviewing the constitutionality of section 132d(3) of the 1969 Execution of Punishments Act. For this reason section 33(1)(c) of the Act, despite having almost identical wording, was not reviewed for constitutionality.
23. Under Bulgarian law, the decisions of the Constitutional Court declaring a statutory provision contrary to the Constitution have effect only for the future (ex nunc).
24. Section 37a(1) of the Regulations for the application of the 1969 Execution of Punishments Act, added in June 2001, provides that inmates may use a payphone installed in the prison in accordance with regulations issued by the head of the “Execution of Punishments” directorate of the Ministry of Justice. Subsection 2 provides that inmates may use the telephone to call only their relatives by direct ascending or descending line, their brothers, sisters and spouses. The telephone conversations are carried out under the supervision of a prison staff member, who makes sure in advance that the conversation is indeed with its purported addressee (subsection 3).
25. Section 18(2) of the 1991 Bar Act (Закон за адвокатурата), presently superseded by section 33(2) of the 2004 Bar Act, provided that the correspondence between lawyers and their clients was inviolable, could not be subject to interception and could not be used as evidence in court.
VIOLATED_ARTICLES: 13
14
6
8
VIOLATED_PARAGRAPHS: 6-1
NON_VIOLATED_ARTICLES: 13


ITEMID: 001-95278
LANGUAGEISOCODE: ENG
RESPONDENT: SVK
BRANCH: ADMISSIBILITY
DATE: 2009
DOCNAME: BARTL v. SLOVAKIA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: David Thór Björgvinsson;Giovanni Bonello;Ján Šikuta;Ledi Bianku;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä
TEXT: The applicant, Mr Jaroslav Bartl, is a Slovak national who was born in 1941 and lives in Dunajská Lužná. The Slovak Government (“the Government”) were represented by their Agent, Mrs M. Pirošíková.
The facts of the case, as submitted by the parties, may be summarised as follows.
On 21 September 1995 the applicant requested an enforcement of the Bratislava Municipal Court’s decision of 1995, by which the defendant had been ordered to employ the applicant.
On 11 June 1996 the Bratislava I District Court ordered the enforcement.
On 30 May 1997 the applicant and the defendant concluded an employment contract.
On 6 November 1998, upon the District Court’s request, the applicant informed it that he wished to continue the enforcement.
On 21 January 2004 the District Court again asked the applicant if he wished to continue the proceedings.
In the applicant’s words, he requested the judgment of 1995 to be enforced because he had not been satisfied with the working conditions as provided for by the defendant. As a result, he had stopped going to work already in June 1997.
On 12 January 2005 the District Court discontinued the proceedings. It held that the defendant had complied with the obligation set out in the judgment of 1995 by concluding the contract with the applicant on 31 May 1997. The contract fulfilled the conditions stated in the judgment of 1995 and the applicant’s right pursuant to that judgment had been extinguished.
The applicant appealed and on 23 February 2009 the Regional Court upheld the District Court’s decision.
On 4 January 2007 and 18 March 2008 the Constitutional Court rejected two complaints about the length of the enforcement proceedings lodged by the applicant. On 15 April 2009, on the applicant’s third complaint, the Constitutional Court found that the District Court had violated the applicant’s right to a hearing without unjustified delay under Article 48 § 2 of the Constitution. It further held that the overall duration of the proceedings of more than thirteen years had been unreasonable. It awarded the applicant 3,500 euros (EUR) as just satisfaction in respect of non-pecuniary damage suffered.


ITEMID: 001-107699
LANGUAGEISOCODE: ENG
RESPONDENT: UKR
BRANCH: CHAMBER
DATE: 2011
DOCNAME: CASE OF BAZALT IMPEKS, TOV v. UKRAINE
IMPORTANCE: 4
CONCLUSION: Violation of Art. 6-1
JUDGES: Angelika Nußberger;Ann Power-Forde;Dean Spielmann;Elisabet Fura;Ganna Yudkivska;Karel Jungwiert
TEXT: 4. The applicant company, Bazalt Impeks limited liability company, is a Ukrainian legal entity registered in Svitlovodsk.
5. In June 2006 an IT company lodged a claim with the Kirovograd Regional Commercial Court against the applicant company seeking the cancellation of a contract and return of property.
6. By a decision of 26 July 2006, the court found against the applicant company. On 2 October 2006 the Dnipropetrovs’k Regional Commercial Court of Appeal dismissed the applicant company’s appeal and upheld the decision of the first-instance court.
7. By a decision of 12 December 2006, the Higher Commercial Court, upon the applicant company’s appeal, quashed the decisions of the lower courts and found in favour of the applicant company.
8. On 20 February 2007 the Supreme Court of Ukraine, upon the IT company’s cassation appeal, quashed the ruling of the Higher Commercial Court on the ground that its findings had been unfounded and erroneous, and upheld the decision of the Dnipropetrovs’k Regional Commercial Court of Appeal. In taking this decision, the Supreme Court noted:
“The Supreme Court of Ukraine, with regard to the provisions of Articles 6 and 8 of the Constitution of Ukraine, does not consider it necessary to remit the case for fresh examination to the first-instance court. This would be contrary to the provisions of Article 125 of the Constitution of Ukraine and sections 2 and 39 of the Law of Ukraine “On the Judicial System of Ukraine” [the Judiciary Act] regarding the status of the Supreme Court of Ukraine and its task to ensure the administration of justice in accordance with the law. It would further cause a constitutionally unacceptable need to quash the lawful decision of the court of appeal. In this regard, the list of possible outcomes of cassation appeals against decisions of the Higher Commercial Court of Ukraine envisaged in Article 111-18 of the Code of Commercial Procedure of Ukraine is not considered a legal impediment to adopting the decision.”
9. On 5 March 2007 the decision of the Supreme Court was sent to the applicant company.
10. The relevant extract of the Constitution of Ukraine reads as follows:
“State power in Ukraine is exercised on the principles of its division into legislative, executive and judicial power.
Bodies of legislative, executive and judicial power exercise their authority within the limits established by this Constitution and in accordance with the laws of Ukraine.”
“In Ukraine, the principle of the rule of law is recognised and effective.
The Constitution of Ukraine has the highest legal force. Laws and other normative legal acts are adopted on the basis of the Constitution of Ukraine and shall conform to it.
The norms of the Constitution of Ukraine are norms of direct effect. Appeals to the court in defence of the constitutional rights and freedoms of the individual and citizen directly on the grounds of the Constitution of Ukraine are guaranteed.”
“In Ukraine the system of courts of general jurisdiction is formed in accordance with the territorial principle and the principle of specialisation.
The Supreme Court of Ukraine is the highest judicial body in the system of courts of general jurisdiction ...”
“... The main principles of judicial proceedings are:
1) legality...”
11. The relevant provisions of the Act (in its wording of 1 January 2007) read as follows:
“The court, exercising justice based on the rule of law shall ensure the protection of the rights and freedoms of natural persons, the rights and legitimate interests of legal persons, and the interests of society and of the State as guaranteed by the Constitution of Ukraine and by the law.”
“1. The Supreme Court of Ukraine is the highest judicial body within the system of courts of general jurisdiction ...
2. The Supreme Court of Ukraine shall:
1) review ... the cases under the cassation procedure in the situations established by law...
7) exercise other powers pursuant to the law.”
Section 39 of the Act dealt with the competences of the Higher Specialised Courts.
12. The Code of Commercial Procedure (formerly: Arbitration Procedure) was significantly reworded on 21 June 2001. At that time, a fourth level of jurisdiction was introduced into commercial procedure. According to the relevant provisions of the Code, a cassation appeal to the Higher Commercial Court, similar to that found in other member States of the Council of Europe, and a second (or repeated) cassation appeal to the Supreme Court was available to the parties in a commercial case. Commercial procedure was the only judicial procedure of Ukraine where a fourth level of jurisdiction existed and where the Supreme Court acted as a second-instance court of cassation (in criminal and civil proceedings it acted as an ordinary court of cassation and in administrative and administrative offences proceedings it performed only extraordinary review). The relevant legislation was changed in July 2010 and the competence of the Supreme Court in commercial cases was limited to the review of a case in the event of inconsistencies in judicial practice or in the event that a decision is adopted by an international tribunal.
The relevant provisions of the Code of Commercial Procedure (in its wording of 15 May 2003) read as follows:
“A commercial court shall nullify proceedings in the case, if
1) a dispute is not subject to examination in the commercial courts of Ukraine; ...”
“The parties to a case and the Prosecutor General of Ukraine have the right to appeal in cassation to the Supreme Court of Ukraine against a resolution of the Higher Commercial Court of Ukraine adopted following the review of a decision of a first-instance commercial court that has entered into force, or a resolution of the Commercial Court of Appeal [as well as the ruling of the Higher Commercial Court of Ukraine on return of the appeal (request for review) in cassation].”
“The Supreme Court of Ukraine reviews in cassation the resolutions [or rulings] of the Higher Commercial Court of Ukraine if they are appealed against:
1) on the basis of the application by the Higher Commercial Court of Ukraine of a law or normative act which contravenes the Constitution of Ukraine;
2) where a decision contravenes decisions of the Supreme Court of Ukraine or of a higher court of a different specialisation on the issue of the application of the norms of substantive law;
3) where it is revealed that the Higher Commercial Court of Ukraine has applied the same provision of the law or any other normative act differently in similar cases;
[3-1) due to the inconsistency of the resolutions or rulings with the international treaties of Ukraine agreed as binding by the Verkhovna Rada of Ukraine;]
4) where an international judicial body whose jurisdiction is recognised by Ukraine finds that a resolution [or ruling] has violated the international obligations of Ukraine.”
“... The resolution [or ruling] of the Higher Commercial Court of Ukraine shall be reviewed in cassation on the basis of the rules for consideration of the case in the first-instance commercial court, save for
“The Supreme Court of Ukraine, following consideration of an appeal in cassation, or a request for review in cassation lodged by the Prosecutor General of Ukraine against a resolution [or ruling] of the Higher Commercial Court of Ukraine, shall be entitled to:
1) leave the resolution [or ruling] unchanged and dismiss the appeal (request);
2) quash the resolution and remit the case to the first-instance court for further consideration [or quash the ruling and remit the case for further consideration to the Higher Commercial Court];
3) quash the resolution [or ruling] and nullify the proceedings in the case.”
“The resolutions [or rulings] of the Higher Commercial Court of Ukraine shall be quashed if they contravene the Constitution of Ukraine, international treaties agreed as binding by the Verkhovna Rada of Ukraine, or if the substantive law has been misapplied otherwise.”
“... A resolution of the Supreme Court of Ukraine shall be final and shall not be subject to appeal.”
“Instructions, contained in the resolution of the Supreme Court of Ukraine, shall be binding for the first-instance court during a new consideration of the case [and for the Higher Commercial Court of Ukraine during consideration of the materials of the appeal in cassation or the request for review in cassation].
The resolution of the Supreme Court of Ukraine, following a re-examination of the case on the basis of an appeal in cassation against the resolution [or ruling] of the Higher Commercial Court of Ukraine shall not include instructions as to the admissibility or inadmissibility of evidence, the superiority of one type of evidence over another, the norms of substantive [or procedural] law which shall be applicable or the kind of decision that shall be adopted as a result of the further consideration of the case.”
13. Section 13 of the Act provides for general measures to be taken by the domestic authorities to eliminate underlying problems which led to finding of a violation by the Court and reasons for similar applications in the future.
14. Section 17 foresees the application of the Convention and the case-law of the Court as a source of law by the Ukrainian courts in adjudication of cases before them.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-107363
LANGUAGEISOCODE: ENG
RESPONDENT: DEU
BRANCH: ADMISSIBILITY
DATE: 2011
DOCNAME: GRAF v. GERMANY
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Angelika Nußberger;Dean Spielmann;Ganna Yudkivska;Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger
TEXT: The applicant, Ms Anna Graf, is a German national who was born in 1946. She is currently confined in a psychiatric hospital in Bayreuth. She was represented before the Court by Mr. H.-H. von Wilcken, a lawyer practising in Munich. The respondent Government were represented by their Agent, Mrs A. Wittling-Vogel, Ministerialdirigentin, of the Federal Ministry of Justice.
The facts of the case, as submitted by the parties, may be summarised as follows.
By a decision of 9 September 1997 the Fürth District Court ordered that the applicant, who was suspected of having killed her husband and had shown signs of a personality disorder in the past, be provisionally placed in the psychiatric department of the Erlangen district hospital in accordance with Article 126a of the Code of Criminal Procedure providing for such a measure if there are strong grounds to assume that a person has committed an unlawful act while lacking criminal responsibility and that committal to a psychiatric hospital will be ordered (see Relevant domestic law below).
The applicant had already voluntarily admitted herself to the psychiatric department of the Erlangen district hospital on 13 August 1997 and had remained there on the basis of decisions by the department for guardianship affairs of the Fürth District Court (Vormundschaftsgericht) of 22 August and 1 September 1997.
Following a decision of the Fürth District Court dated 12 September 1997 the applicant was transferred to the forensic psychiatric department of the Haar district hospital.
On 18 August 1998 the Nuremberg-Fürth Public Prosecutor’s Office applied for the initiation of separate preventive proceedings (selbstständiges Sicherungsverfahren) pursuant to Articles 413 et seq. of the Code of Criminal Procedure (see Relevant domestic law below) with the Nuremberg-Fürth Regional Court.
In the course of the subsequent court proceedings it was established that the applicant, who had no previous criminal record, had killed her husband, to whom she had been married for over twenty years and with whom she had raised three children. Since the beginning of the eighties the applicant had developed a pathological compulsion to collect rubbish, which she stored in the family home. Over the years this compulsion became her main purpose in life and she felt increasingly disturbed by her husband’s interfering with her compulsive hoarding. On 7 August 1997, in an attempt to sedate her husband, she secretly dissolved tranquillisers in his drink. Her aim was to attach him to his bed once he had fallen asleep so as to immobilise him for some time and prevent him from interfering with her compulsive hoarding. Since her attempts were to no avail, the next morning she hit her still sedated and unsuspecting husband several times on the head with a mineral water bottle until he lost consciousness. He died later that day as a result of the blows. During the following night, after discovering her husband’s death, the applicant dismembered the corpse and deposited the various parts in waste containers of a nearby housing area.
In its judgment of 22 January 1999 the Nuremberg-Fürth Regional Court, relying in particular on a confession by the applicant and corroborating witness statements, held that the killing of the applicant’s husband constituted the offence of murder. However, referring to an expert opinion established at the request of the public prosecutor’s office at the Nuremberg-Fürth Regional Court by a deputy medical director (Oberarzt) of the relevant department of the Haar psychiatric hospital on 27 April 1998, the Regional Court considered that the applicant had committed the offence without criminal responsibility. The expert had diagnosed the applicant as suffering from a psychotic disorder that had to be qualified as schizophrenia (schizophrenia simplex) and confirmed that she was incapable of understanding the wrongfulness of her act or of acting in accordance with such an understanding due to her mental disorder. She had thus acted without guilt when committing the criminal offence in accordance with Article 20 of the German Criminal Code (see Relevant domestic law below). The expert further found that the applicant’s illness had developed gradually over the years and that a recovery was not to be expected.
In accordance with the findings of the expert, the Regional Court found that the applicant presented a danger to society, since there was a high risk that she would commit further serious unlawful acts, and therefore ordered her placement in a forensic psychiatric clinic (Articles 20 and 63 of the Criminal Code, see Relevant domestic law below). The Regional Court specified that since the applicant did not recognise that she was suffering from schizophrenia and refused all medication, her continued detention was necessary and a suspension unjustified.
The applicant’s appeal on points of law against the Regional Court’s judgment was dismissed as unfounded by the Federal Court of Justice (Bundesgerichtshof) by a decision of 6 July 1999.
The applicant, now 65 years old, has meanwhile been confined in psychiatric hospitals for more than fourteen years.
Following her placement in the psychiatric hospital at Haar, the applicant was transferred on 15 July 1998 to the psychiatric hospital at Taufkirchen/Vils, where she stayed until 30 August 2006, the date she was transferred to the forensic clinic at Straubing, where she remained until 2009. The attending doctors in the psychiatric hospitals at Taufkirchen/Vils and Straubing upheld the initial diagnosis of schizophrenia when subsequent reviews of the applicant’s detention were conducted. Further experts involved in separately conducted guardianship proceedings came to the conclusion that guardianship should be ordered in respect of the applicant and that it was necessary to administer medication used for the treatment of psychotic disorders. An attempt to treat the applicant with anti-psychotic medication was nevertheless discontinued in 2001, due to adverse effects on the applicant’s health, and the applicant later objected to any further treatment with similar medication. On 4 March 2009 the applicant was transferred to a psychiatric hospital in Bayreuth.
The applicant’s placement in a psychiatric hospital has been reviewed annually since the year 2000 (compare Article 67d and Article 67e of the Criminal Code, see Relevant domestic law below) by the competent Regional Courts at Landshut and Regensburg, which have consistently refused her requests to suspend her detention on probation or grant relaxations of her detention (Vollzugslockerungen). Her related appeals to the relevant Courts of Appeal in Munich and Nuremberg were to no avail.
In their decisions the domestic courts, having heard the applicant and relying on the statements of the attending doctors at the Taufkirchen/Vils psychiatric hospital, found it established that the applicant was still suffering from schizophrenia, did not show any insight into her illness and its seriousness and objected to the necessary treatment with anti-psychotic medication that would be required for a long-term therapy of her disorder. Since no therapeutic progress had been made, there persisted a risk that the applicant would commit further serious unlawful acts if released. The domestic courts further held that in view of the applicant’s persisting mental disorder and the seriousness of the crime committed the continuation of her detention was necessary and proportionate.
Within the scope of their annual reviews the domestic courts also referred on several occasions to external expert opinions which had been commissioned by the applicant’s lawyer, one in 2000 and further ones in the period from 2003 to 2005. These experts had found that the applicant’s personality disorder did not constitute schizophrenia and the negative prognosis as to the danger presented by the applicant could not be confirmed. Several of these experts recommended that relaxations of the applicant’s detention should be implemented rapidly with a view to examining whether she could cope with life outside the hospital.
For instance, on 17 June 2002 the Landshut Regional Court, in a decision confirmed on appeal, took into account an external expert opinion of 15 January 2000 obtained by the applicant’s lawyer, which contested the diagnosis of schizophrenia. Considering that the doctors at the Taufkirchen/Vils hospital had been attending to the applicant for almost four years on a daily basis, whereas the findings of the external expert dated from 2000, the court found no reason to doubt the attending doctors’ diagnosis and the negative prognosis for the applicant in terms of the likelihood that she would commit further crimes.
In preparation of the annual review of the applicant’s detention in 2004, the Landshut Regional Court commissioned an external expert opinion by the director of the Straubing district hospital, with a view to clarifying whether there was still a risk that the applicant would commit further unlawful acts, making the continuation of her detention necessary. In his opinion, issued on 17 July 2004, the expert found that the applicant was suffering from a schizophrenic disorder (schizotype Störung) and that the prognosis, that she was likely to commit further crimes if released, was a negative one. During her continuing placement in the psychiatric hospital she had not shown any serious insight into her illness, and according to the hospital’s records she had collected and hidden various, sometimes perishable, objects in her room on repeated occasions. The hospital staff’s attempts to dispose of the collected items had triggered anxiety and despair in the applicant, which showed that the compulsive nature of her mental disorder had lost nothing of its intensity.
In a related decision of 4 October 2004 the Landshut Regional Court pointed out that the applicant’s statements on the occasion of the hearing had confirmed the thorough and well-founded assessment by the external expert, which was also in line with the initial assessment of the applicant by the experts in 1998. For this reason the court found that there was nothing to indicate a positive prognosis in respect of the applicant if released. The court specified that it was unable to share the opinion of a further external expert heard during the proceedings at the applicant’s request, who suggested that relaxations of the latter’s detention could be envisaged on the ground that her deed had been related to a specific conflict situation between her and her husband, which would not be reproduced. In the court’s view the applicant presented a potential danger to any housemate who interfered with her compulsive hoarding if she was released.
In view of the discrepancies between the external expert opinion commissioned by the Regional Court in 2004 and the several external expert opinions obtained by the applicant’s lawyer, the latter obtained a further expert opinion (Obergutachten) from the head physician of the general psychiatric department of the Rhineland clinics at Viersen, which was rendered on 22 September 2006 and supplemented on 29 March 2007. This expert found that while the applicant was suffering from a complex personality disorder (schizothyme Persönlichkeitsstörung) and showed a pathological compulsive personality structure (anankastisch strukturierte Persönlichkeit) there was nothing to establish that her disorder constituted a schizophrenic psychosis or schizophrenia (schizophrenia simplex). The expert emphasised that the related initial diagnosis of 1998, as upheld during the applicant’s continued detention by the attending doctors, was most likely wrong.
’s assistant prior to her marriage, and thereafter had taken care of her family and raised three children. She regretted and did not show any tendency to trivialise the offence she had committed. The insufficient therapeutic progress made during her detention was mainly due to the fact that the attending doctors had made further therapeutic measures subject to the applicant’s treatment with anti-psychotic medication, to which she had objected. In the expert’s opinion the applicant’s personality disorder did not require such medication and there was no justification for making it a precondition for further therapeutic measures or for the applicant’s release on probation. If released on probation the applicant had the opportunity to live with and care for her mother, and in addition she had the lifelong prospect of being integrated into her twin sister’s farm household where she could participate in farming chores. In the light of the above, the expert concluded that in the applicant’s case there was a low risk of reoffending, that her prognosis was most likely positive in terms of likelihood to commit criminal offences if released, and that her continued detention in a psychiatric hospital pursuant to Article 63 of the Criminal Code was no longer justified.
The Landshut Regional Court addressed this expert opinion within the scope of a review of the applicant’s detention in 2006. The court noted in its related decision of 8 November 2006 that the expert’s findings and his conclusion that the applicant’s continued detention in a psychiatric hospital under Article 63 of the Criminal Code was no longer justified contradicted the assessments of the applicant by the attending doctors at the Taufkirchen/Vils hospital over several years, as well as those of the external expert opinion commissioned by the court in 2004, and its recommendations should therefore not be followed. In the court’s opinion the expert failed to establish that there was no risk of the applicant being confronted with new situations of conflict if released which, given her disorder, might result in further criminal offences.
The Munich Court of Appeal, by a decision of 10 April 2007 endorsing the Regional Court’s reasoning, dismissed the applicant’s appeal. The Court of Appeal found in particular that in view of the applicant’s resurgent addiction to compulsive hoarding, as evidenced by the attending doctors at the Straubing district hospital in a statement dated 14 March 2007, it could not be excluded that the applicant, once released, would be confronted with conflict situations in her personal environment similar to the one that had been the origin of her husband’s murder. Having regard to the numerous expert opinions and due to the fact that the applicant had been transferred to the Straubing district hospital in August 2006, the Court of Appeal took the view that it had not been necessary to commission a further external expert opinion at that point in time.
By a decision of the Landshut Regional Court dated 15 November 2007, as confirmed by the Munich Court of Appeal decision of 28 December 2007, the applicant’s renewed request for a suspension of her detention was refused. In their decision-making the courts again opposed the findings of the external expert opinion of 2006 and relied on statements by the attending doctors indicating that the applicant was continuing her compulsive hoarding and did not show any insight into her illness.
On 20 November 2008 the Regensburg Regional Court dismissed a further request by the applicant to have her detention suspended on probation (see Article 67d and Article 67e of the Criminal Code) and held that a further similar request would be inadmissible if made within a period of one year.
Relying on a statement of the Straubing psychiatric hospital of 4 September 2008, the Regional Court found that it was established that the applicant was suffering from a schizophrenic disorder (schizotype Störung) and that her therapy had not led to any progress that would allow a positive legal prognosis. In particular, the applicant did not show any insight into her illness or its seriousness and objected to treatment with the medication which would be required for long-term therapy for her disorder. In view of these findings, the Regional Court held that for the time being the risk persisted that the applicant would commit further serious unlawful acts if released on probation and that thus her continued placement in a psychiatric hospital was proportionate.
On 14 January 2009 the Nuremberg Court of Appeal dismissed an appeal by the applicant against the Regional Court’s decision. The Court of Appeal specified that the applicant’s continued detention was still proportionate. The principle of proportionality required that placement in a psychiatric hospital only continued as long as it served its purpose and as long as that purpose could not be achieved by a less severe measure. The longer the detention lasted the higher were the standards for scrutiny as to whether its duration was still proportionate to the gravity of the offences committed by or to be expected from the detained person and to the danger he or she presented to society. Having regard to the doctors’ statement of 4 September 2008 confirming that the applicant could be expected to commit further serious unlawful acts if released and as long as the applicant was not following a successful course of therapy, her continued detention was justified in view of the threat she still posed to society. Furthermore, since there was no indication that the applicant’s condition would change in the near future, the Regional Court’s decision to set a time-limit of one year before which the applicant could make a new request for suspension of her detention pursuant to Article 67e) § 3 of the Code of Criminal Procedure did not pose a problem.
The Court of Appeal also argued that the divergent expert opinions obtained by the applicant in the past had already been the subject of her previous requests for suspension of her detention and had been addressed by the Court of Appeal’s decision of 28 December 2007. Referring to its assessment of the applicant’s complaint in this previous decision, the Court of Appeal confirmed its conclusion that the continued detention of the applicant was justified. In the instant case it had not been necessary to obtain a further psychiatric expert opinion, since the court did not even consider suspending the applicant’s detention on probation. Furthermore, the five-year period as stipulated in Article 463 § 4 of the Code of Criminal Procedure had not elapsed since the last external psychiatric expert opinion had been obtained by the competent courts on 17 July 2004.
By written submissions dated 23 February 2009 the applicant lodged a constitutional complaint against the decisions of the Regensburg Regional Court of 20 November 2008 and of the Nuremberg Court of Appeal dated 14 January 2009.
She alleged in particular that in view of the several external expert opinions contesting the diagnosis of schizophrenia and confirming that her criminal prognosis was positive, her continued detention in a psychiatric hospital was disproportionate. The domestic courts’ failure to thoroughly examine the expert opinions commissioned by her lawyer, the global reference to previous court decisions rejecting the applicant’s requests for a suspension of her detention, and the courts’ refusal to obtain a decisive expert opinion showed that their decision-making had been arbitrary.
On 26 March 2009 the Federal Constitutional Court declined to consider the applicant’s constitutional complaint (file no. 2 BvR 398/09) on the ground that it had no prospect of success. However, the Federal Constitutional Court pointed out that in view of the fact that the last external expert opinion had been obtained by the relevant courts in 2004, the requirement to obtain the best possible clarification of the circumstances of a case as reflected in Article 463 § 4 of the Code of Criminal Procedure necessitated the commissioning of a new opinion by an external expert who had not yet been involved in the case at hand with regard to the upcoming review of the applicant’s detention.
The Federal Constitutional Court’s decision was posted on 7 April 2009.
Following the applicant’s transfer to the Bayreuth psychiatric hospital on 4 March 2009 occasional relaxations of her detention were granted, such as accompanied exits from the clinic.
On the occasion of the subsequent review of the applicant’s detention, the now competent Bayreuth Regional Court, by a decision of 19 November 2009, after hearing the applicant and relying on an opinion by the Bayreuth district hospital of 21 September 2009, again ruled that the applicant should remain in a psychiatric hospital. The attending doctors had confirmed the diagnosis of schizophrenia and found that her behaviour was characterised by an inability to show emotionally adequate reactions and a lack of motivation, accompanied by increased fatigue. The applicant’s state of health had reached a certain stability in the protected hospital environment that might be at risk if she was subjected to pressure. Referring to the external expert opinion obtained by the applicant on 22 September 2006, as supplemented on 29 March 2007, the court found that, even taking into account that the applicant’s victim had been her husband her illness was so serious that it could not be established that the crime had been an isolated event. The danger the applicant posed to society resulted from her illness, and since she had not made any progress in her therapy, there was still a risk that she would commit further criminal offences if released.
The applicant’s related appeal was dismissed by the Bamberg Court of Appeal on 22 December 2009, confirming that the applicant’s placement in a psychiatric hospital was proportionate in view of the danger she still presented to society. However, the Court of Appeal pointed out that the Regional Court had not based its decision on a new external expert opinion as required by Article 463 § 4 of the Code of Criminal Procedure after every five-year period of a detainee’s committal to a psychiatric hospital. While failure to comply with that requirement did not give the applicant the right to be released, any decision to continue confinement in a psychiatric hospital following the expiry of the five-year period that was not based on a new external expert opinion had to be regarded as provisional until a decision in accordance with that requirement had been rendered. The Court of Appeal held that therefore the Regional Court was obliged to proceed immediately to a new review of the continuation of the applicant’s detention on the basis of a new external expert opinion.
On 7 January 2010 the Regional Court ordered an external expert opinion with a view to clarifying whether the applicant was likely to reoffend, what type of offences could be expected and what would be the appropriate therapeutic and accompanying measures to diminish the risk of reoffending. The applicant’s objection of 5 July 2010 to the expert, who had been appointed at her own request, was rejected by a decision of the Regional Court of 23 September 2010, and her related complaint was dismissed by a decision of the Regional Court of 19 November 2010.
By a further decision of 19 November 2010 the Regional Court again ordered that the applicant’s confinement in a psychiatric hospital be continued, and set the next review of the applicant’s detention for 18 November 2011. The court pointed out that the external expert opinion commissioned on 7 January 2010 had still not been rendered, due to the applicant’s repeated objections to an examination and to the appointed expert. Relying on a statement of the Bayreuth district hospital of 27 October 2010 confirming that the diagnosis of schizophrenia for the applicant remained unchanged, that she still did not show any insight into her disease and that she was refusing the necessary medication, the court found it established that the risk persisted that the applicant would reoffend and therefore a release, even on probation, could not be envisaged. In the court’s view, the expert opinions obtained by the applicant which were at variance with these findings did not lead to a different conclusion.
By a decision of 3 January 2011 the Bamberg Court of Appeal dismissed the applicant’s related appeal against the Regional Court’s decisions of 19 November 2010. As regards her objection to the appointed expert, the court held that there were no objective grounds to doubt the latter’s impartiality. Concerning the applicant’s continued detention, the Court of Appeal, having regard to the statements of the Bayreuth district hospital of 27 October 2010 as well as a statement by the Bamberg General Prosecutor, found it established that the risk persisted that the applicant would commit similar offences if released. Referring to the reasoning in its decision of 22 December 2009 the Court of Appeal further reiterated that the confinement was still proportionate. It specified that it had not been able to base its decision on the required new external expert opinion, due to the applicant’s obstructive behaviour.
The external expert opinion dated 31 March 2011 was finally submitted to the Bayreuth Regional Court on 6 April 2011. Following examination of the applicant and taking into account the partly conflicting expert opinions previously established, as well as the statements of the attending doctors at the relevant psychiatric hospitals, the expert concluded that the applicant was suffering from schizophrenia which, however, did not meet the characteristics of the previously diagnosed schizophrenia simplex but had to be qualified as so-called undifferentiated schizophrenia (undifferenzierte Schizophrenie). According to the expert, an assessment of all relevant factors led to the conclusion that the prognosis for the applicant was still negative, since there persisted a risk that she might commit offences involving bodily harm towards persons in her personal environment in particular in the event she was subject to pressure. The expert, while pointing out that anti-psychotic medication was no longer essential, recommended that the applicant’s psychiatric treatment be continued. Furthermore, relaxations of the applicant’s detention should be envisaged and gradually increased over a period of up to one year, in order to enable the applicant to confront and learn to deal with situations of stress. In the event these relaxations proved successful, she could be transferred to an appropriate therapeutic institution or an elderly people’s home. Following a stay of two to three years in such an institution under therapeutic supervision a reunion with her relatives might be considered, subject to consultation with all parties concerned.
The German Criminal Code distinguishes between penalties (Strafen) and socalled correction and prevention measures (Maßregeln der Besserung und Sicherung) to deal with unlawful acts. Penalties (see Articles 38 et seq. of the Criminal Code) consist mainly of prison sentences and fines. The penalty is fixed according to the defendant’s guilt (Article 46 § 1 of the Criminal Code). Measures of correction and prevention (see Articles 61 et seq. of the Criminal Code) consist mainly of placement in a psychiatric hospital (Article 63 of the Criminal Code) or a detoxification facility (Article 64 of the Criminal Code) or in preventive detention (Article 66 of the Criminal Code). The purpose of these measures is to rehabilitate dangerous offenders or to protect the public from them. Placement in a psychiatric hospital may be ordered against offenders who have acted without or with diminished criminal responsibility. The measure must, however, be proportionate to the gravity of the offences committed by, or to be expected from, the defendants concerned, as well as to the danger they present (Article 62 of the Criminal Code).
Pursuant to Article 20 of the Criminal Code, a person who upon commission of a criminal offence is incapable of appreciating the wrongfulness of an act or of acting in accordance with such appreciation due to a pathological emotional disorder, profound consciousness disorder, mental defect or any other serious emotional abnormality, acts without guilt.
Article 63 of the Criminal Code provides that if someone commits an unlawful act without criminal responsibility pursuant to Article 20, the court orders their placement without a maximum duration in a psychiatric hospital if a comprehensive assessment of the defendant and his act reveals that, as a result of his condition, he can be expected to commit serious unlawful acts and that he is therefore dangerous to the general public.
Pursuant to Article 126a of the German Code of Criminal Procedure, if there are strong grounds to assume that while lacking criminal responsibility or in a state of diminished responsibility someone has committed an unlawful act and that his committal to a psychiatric hospital or to an institution for withdrawal treatment will be ordered, the court may, in a committal order, direct that he be provisionally committed to one of these institutions if public security so requires.
Article 413 of the Code of Criminal Procedure stipulates that if the public prosecutor does not conduct criminal proceedings because of the perpetrator’s lack of criminal responsibility or his unfitness to stand trial, it may file an application for an order imposing measures of correction and prevention on their own, if this is admissible by virtue of a statute and the order is to be anticipated in the light of the outcome of the investigations (procedure for preventive detention).
Article 67d of the Criminal Code governs the duration of detention. If the court considers that following the commencement of detention in a psychiatric hospital the conditions for the measure are no longer met or that the further execution of the measure would be disproportionate, it declares the measure terminated (Article 67d § 6).
Article 67e of the Criminal Code provides for the review of a person’s detention, inter alia, in a psychiatric hospital. The court may review at any time whether the further execution of the detention order should be suspended on probation. It is obliged to do so within fixed time-limits (§ 1 of Article 67e). For a person detained in a psychiatric hospital, this time-limit is one year (§ 2 of Article 67e). The court may shorten these time-limits. Within the scope of the stipulated review periods it may fix time-limits within which requests for a review are inadmissible (§ 3 of Article 67e).
Article 463 § 4 of the Code of Criminal Procedure specifies that as part of its examinations pursuant to section 67e of the Criminal Code the court shall obtain the opinion of an expert after every five-year period of committal to a psychiatric hospital. The expert shall not, within the framework of such a committal, have been involved in the treatment of the person committed, nor shall he be working in the psychiatric hospital in which the person committed is located.


ITEMID: 001-83206
LANGUAGEISOCODE: ENG
RESPONDENT: HUN
BRANCH: ADMISSIBILITY
DATE: 2007
DOCNAME: BODI v. HUNGARY
IMPORTANCE: 4
CONCLUSION: Inadmissible
TEXT: The applicant is a Hungarian national who was born in 1950 and lives in Budapest. He was represented before the Court by Mr G. Kutas, a lawyer practising in Budapest. The Hungarian Government (“the Government”) were represented by Mr L. Höltzl, Agent, Ministry of Justice and Law Enforcement.
The facts of the case, as submitted by the parties, may be summarised as follows.
On 21 May 2000 regulatory offence proceedings were instituted against the applicant, because his dog had bitten Mr H. On 7 November 2000 he was fined on account of the regulatory offence of ‘endangering with a dog’ (kutyával való veszélyeztetés). On the applicant’s objection, the case was forwarded to the Budapest XVIII/XIX District Court. The court ordered that the principal decision be reviewed. As a result, on 20 March 2001 the court changed the decision and fined the applicant a lesser amount on account of the regulatory offence of having walked his dog without a leash. This decision was declared final on 10 May 2001.
On 14 November 2002 criminal proceedings were instituted against the applicant, in the context of the same incident, for ‘not having assisted the victim’ in respect of the danger caused by him.
Between 9 December 2004 and 17 March 2006, the District Court held five hearings and obtained the opinion of an expert. On that date it acquitted the applicant for want of evidence. The public prosecutor’s office appealed but withdrew its appeal on 30 June 2006.
The applicant’s appeal, pleading the absence of a crime, was dismissed by the Budapest Regional Court on 8 November 2006.
In the meantime, the applicant’s criminal accusations against an interrogator involved in the above proceedings were to no avail and were finally rejected by the Supreme Court on 27 April 2004.