ITEMID: 001-23252
LANGUAGEISOCODE: ENG
RESPONDENT: POL
BRANCH: ADMISSIBILITY
DATE: 2003
DOCNAME: FUTRO v. POLAND
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Nicolas Bratza
TEXT: The applicant, Mr Marian Futro, is a Polish national, who was born in 1951 and lives in Poznań, Poland.
The facts of the case, as submitted by the parties, may be summarised as follows:
In 1975 the applicant’s property in Poznań was expropriated. In February 1990 the applicant and one of his brothers lodged an application for restitution of that land with the Poznań Municipality (Urząd Miejski).
The Poznań Mayor (Prezydent Miasta) failed to issue a decision. On 13 June 1991 the case-file was transferred to the Poznań District Office (Urząd Rejonowy), as under the new legislation it had become competent to deal with the applicant’s case.
On 16 June 1991 the applicant lodged a complaint with the Supreme Administrative Court alleging inactivity on the part of the first-instance administrative authority. On 5 November 1991 the court gave a judgment and ordered the District Office to deliver a decision within a time-limit of thirty days.
Meanwhile, on 15 July 1991 the District Office issued a partial decision and determined that one of the expropriated plots of land had ceased to serve the purpose indicated in the expropriation decision. On 31 January 1992 the Governor of Poznań quashed this decision and remitted the case for re-examination.
On 17 June 1992 the District Office held the so-called “administrative hearing” (rozprawa administracyjna). On 11 February 1993 an expert submitted his report.
On 30 June 1993 the Poznań District Office issued a decision to the effect that part of the property be returned to the applicant and other co-owners. It also ordered that they pay the indexed sum to the State Treasury in return for the compensation, which they had received in 1975.
On 27 September 1993, upon an appeal lodged by the applicant’s brother, the Poznań Governor quashed the first-instance decision and remitted the case
On 20 June 1994 the District Office ordered that a plan concerning the partition of the property be drawn.
On 20 December 1994 the District Office decided that expert evidence be obtained in order to determine the value of the property. On 23 January 1995 the expert submitted her report.
In the course of the proceedings, the applicant’s father died. On 27 March 1995 the Poznań District Court declared that his property was inherited by one of the applicant’s brothers and his children.
On 21 April 1995 the District Office held an administrative hearing.
In November 1995 the District Office ordered that yet another expert report be obtained. On 5 November 1995 the expert submitted his report.
On 17 July 1996 and 24 July 1997 the District Office asked the relevant authorities for information about the infrastructure of the street situated along the property in question.
On 1 January 1998 the Law of 21 August 1997 on Land Administration (Ustawa o gospodarce nieruchomościami) came into force. On that date the Poznań Governor became competent to deal with the applicant’s case.
On 30 March 1998 an administrative hearing was held.
On 15 June 1998 the authorities informed the applicant that a new time-limit for the issue of a decision determining the case was set for 30 September 1998.
On 3 August 1998 the Poznań Governor informed the applicant that he could consult the expert report concerning the value of the property (operat szacunkowy).
On 25 September 1998 the Poznań Governor held an administrative hearing.
On 30 September 1998 the expert report was amended.
On 30 December 1998 the Poznań Governor issued a decision ordering that a certain part of the property be returned to the applicant and other co-owners, as it had no longer served the purpose specified in the expropriation decision. The Poznań Governor ordered the co-owners to pay the indexed sum to the State Treasury in return for the compensation awarded to them in 1975.
On 12 and 18 January 1999 respectively, the applicant’s brother and the respondent company appealed against that decision to the President of the Office for Housing and Town Development (Prezes Urzędu Mieszkalnictwa i Rozwoju Miast).
On 20 February 2001 the President of the Office for Housing and Town Development upheld the decision of the Poznań Governor.
It appears that on a further appeal the case is pending before the Supreme Administrative Court.
Article 35 of the Code of Administrative Procedure lays down time-limits ranging from 1 month to 2 months for dealing with a case pending before an administrative authority. If those time-limits have not been complied with, the authority must, under Article 36 of the Code, inform the parties of that fact, explain the reasons for the delay and fix a new time-limit. Pursuant to Article 37 § 1, if the case has not been dealt with within the time-limits referred to in Articles 35 and 36, a party to administrative proceedings may lodge an appeal to the higher authority, alleging inactivity. In cases where the allegations of inactivity are well-founded, the higher authority fixes a new term for examining the case and orders an inquiry in order to determine the reasons for the inactivity and to identify the persons responsible for the delay. If need be, the authority may order that measures be applied to prevent such delays in the future.
Until 1 October 1995, under Article 216 of the Code of Administrative Procedure, a party to administrative proceedings could, at any time, lodge a complaint with the Supreme Administrative Court about the fact that an administrative authority had failed to issue a decision.
On 1 October 1995, when a new Law of 11 May 1995 on the Supreme Administrative Court (“the 1995 Act”) took effect, Article 216 of the Code of Administrative Procedure was repealed.
Under section 17 of the 1995 Act, a party to administrative proceedings may, at any time, lodge a complaint with the Supreme Administrative Court about inactivity on the part of an authority obliged to issue an administrative decision.
Section 26 of the Law provides:
“When a complaint alleging inactivity on the part of an administrative authority is well-founded, the Supreme Administrative Court shall oblige that authority to issue a decision, or to perform a specific act, or to confirm, declare, or recognise a right or obligation provided for by the law.”
Pursuant to section 30 of the Law, the decision of the Supreme Administrative Court ordering an authority to put an end to its inactivity is legally binding on the authority concerned. If the authority has not complied with the decision, the court may, under section 31 of the 1995 Act, impose a fine on it and may itself give a ruling on the right or obligation in question.


ITEMID: 001-88957
LANGUAGEISOCODE: ENG
RESPONDENT: LVA
BRANCH: CHAMBER
DATE: 2008
DOCNAME: CASE OF BLUMBERGA v. LATVIA
IMPORTANCE: 3
CONCLUSION: Preliminary objection joined to merits and dismissed (ratione materiae);Preliminary objection joined to merits;No violation of P1-1;Violation of Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - award
JUDGES: Alvina Gyulumyan;Corneliu Bîrsan;Egbert Myjer;Elisabet Fura;Ineta Ziemele;Josep Casadevall
TEXT: 6. On 19 April 1995 the applicant, who was born in 1939 and lives in Ventspils, was arrested by the Jelgava police and remanded in custody until 13 June 1995. During this period of time some of the applicant’s property stored in her house in Jelgava, where a café belonging to her was also located, and in her second house in Dobele, was stolen. Criminal proceedings were initiated in this connection.
7. On 23 May 1995 criminal proceedings in case no. 22546495 were initiated regarding the burglary in Jelgava.
8. On 25 May 1995 the Jelgava police decided to acknowledge the applicant as a civil claimant in criminal case no. 22546495, with a claim for 763 Latvian lati (LVL) (approximately EUR 1,090).
9. On 11 July 1995 another set of criminal proceedings, allocated case number no. 22564195, was initiated regarding the burglary in Jelgava. On the same date the Jelgava police decided to acknowledge the applicant as a civil claimant in criminal case no. 22564195, with a claim for LVL 6725.60 (approximately EUR 9,607). According to a copy of that decision, submitted by the applicant, the police investigator crossed out the above amount, putting LVL 12,103 (approximately EUR 17,290) instead. The applicant requested to be acknowledged as a civil claimant with a claim for that amount when she was questioned on 11 September 1995.
10. On 28 February 1997 the Jelgava police joined the two sets of criminal proceedings into one case, no. 22564195.
11. On 17 September 1997 a public prosecutor attached to the Zemgale District Court (“the Zemgale public prosecutor”) informed the applicant that, following her complaint to the Prosecutor General’s Office, an examination of the investigation in the criminal proceedings relating to the burglary of her property had been carried out. During the examination, serious infringements of the provisions of the Criminal Procedure Code had been detected. In that regard, according to the Zemgale public prosecutor, she had on 27 January 1997 requested the head of the Jelgava police to rectify the deficiencies indicated to him and to identify the police officers who had failed to protect the applicant’s property upon her detention, as required by Article 80 of the Criminal Procedure Code. An official investigation had been carried out into the failure to protect the applicant’s property and the criminal proceedings in respect of the burglary of the property. As a result, two police officers had been identified as responsible for the failure to protect the applicant’s property. One of them had been disciplined and the other’s professional conduct had been assessed by the professional attestation commission.
12. On 20 August 2000 the applicant wrote to the Zemgale public prosecutor, inquiring about the progress in the criminal proceedings.
13. On 26 September 2000 the Zemgale public prosecutor informed the applicant that her complaint in respect of lack of progress in the criminal proceedings was well-founded, since the Jelgava police had not carried out any investigative measures and the investigation in the criminal proceedings had been unlawfully delayed. According to the prosecutor, the head of the police at the Ministry of the Interior had been informed thereof on 25 September 2000.
14. On 20 January 2001 the applicant complained to the Prosecutor General about the inefficiency of the Zemgale public prosecutor, which had hindered the restitution of her stolen property. On 5 February 2001 the Prosecutor General informed the applicant that her complaint had been transferred to the Zemgale public prosecutor for examination.
15. On 13 February 2001, the Zemgale public prosecutor informed the applicant that the investigation in the criminal proceedings in case no. 22564195 was still in progress. She had requested the head of the Jelgava police to speed up the investigation and to carry out the instructions she had given the Jelgava police on 27 January 1997 by 25 February 2001. Thereafter, an additional examination of the conduct of the investigation was to be carried out.
16. On 12 May 2001 the applicant complained to the Prosecutor General about the lack of progress in the investigation in the criminal proceedings.
17. On 20 June 2001 the Zemgale public prosecutor confirmed that the applicant had been declared a civil claimant in the criminal proceedings in case no. 22564195, which were still ongoing.
18. On 19 July 2001 the Prosecutor General informed the applicant that her application of 12 May 2001 had been transferred for examination to the Zemgale public prosecutor on 21 May 2001.
19. On 23 July 2001 the Zemgale public prosecutor sent the applicant the decision of 20 June 2001, without answering in substance the applicant’s questions about the progress in the criminal proceedings.
20. On 24 July 2001 the Zemgale public prosecutor informed the applicant that both decisions declaring her a civil claimant had been sent to her.
21. On 11 December 2001 the Jelgava police, pursuant to Article 139 § 5 of the Criminal Code, decided to acknowledge the applicant as a civil claimant in criminal proceedings no. 22564195, with a claim for LVL 32,789.10 (approximately EUR 46,840).
22. On 5 May 2005 the applicant wrote to the Zemgale public prosecutor, inquiring about the progress in the criminal proceedings.
23. On 13 May 2005 the Zemgale public prosecutor informed the applicant that her inquiries concerning criminal proceedings no. 22564195 had been transferred to the Jelgava City public prosecutor, and those concerning criminal proceedings nos. 20517495 and 2503000802 (paragraph 33, below) to the Dobele District public prosecutor.
24. On 7 June 2005 the Jelgava City public prosecutor informed the applicant that criminal proceedings no. 22564195 were still ongoing. The Jelgava Police Department had been instructed to speed up the investigation.
25. On 30 June 2005 a police officer of the Jelgava police decided to transfer the criminal case to the public prosecutor of the City of Jelgava for prosecution. It had been established by the pre-trial investigation that between 19 April and 13 June 1995, during the applicant’s detention, R.Z., E.R., V.I. and I.B. had stolen and consumed food and alcoholic beverages, and stolen money, clothes, kitchen equipment and other items, which amounted to a total loss of LVL 32,798.10 (approximately EUR 46,841) to the applicant. R.Z., E.R., V.I. and I.B. had thus committed a crime under Article 139 § 5 of the Criminal Code. This decision was sent to the applicant on 1 July 2005.
26. On 8 July 2005 a prosecutor of the Prosecutor’s Office of the City of Jelgava brought a charge against I.B. for burglary in the amount of LVL 2,642 (approximately EUR 3,774). A preventive measure – prohibition on changing her place of residence – was imposed on her.
27. On 17 August 2005 a prosecutor of the Prosecutor’s Office of the City of Jelgava brought a charge against E.R. for burglary in the amount of LVL 2,622 (approximately EUR 3,746).
28. On 8 September 2005 a prosecutor of the Prosecutor’s Office of the City of Jelgava decided to terminate the criminal proceedings in case no. 22564195 because of a lack of sufficient evidence. It was stated, inter alia, that since during questioning the applicant had constantly increased the amount of the loss she had allegedly suffered, her statements in this respect should be treated with caution. It was established that during questioning I.B., E.R., R.Z. and V.I. had denied having burgled the applicant’s property and that it was impossible, on the basis of an assessment of the evidence, to discover what had been stolen from the applicant’s property, and in what circumstances. Besides, since the instigation of the criminal proceedings in 1995 no evidence had been obtained as to the persons responsible for the loss or theft of the applicant’s property. The prosecutor considered that the case should be terminated on the grounds that it was impossible to obtain further evidence and to prove any charges against named individuals. According to the information provided by the Government, the decision was sent to the applicant on 14 September 2005, and she was informed that it could be appealed against to the Zemgale Regional Public Prosecutor’s Office. The applicant contested that claim, stating that she had not received the decision.
29. On 28 June 1995 the Dobele police instituted criminal proceedings in case no. 20517495 in respect of the burglary of the applicant’s house in Dobele.
30. On 8 August 1995 the Dobele police acknowledged the applicant as a civil claimant for an amount of LVL 9,439 (approximately EUR 13,484).
31. On 28 February 1996 a public prosecutor of the Dobele District decided to terminate the criminal proceedings in part and to reject the applicant’s civil claim in part. It was established that the accused E.R. had confessed to having stolen a few of the items declared by the applicant as stolen and was thus liable for the amount of LVL 1,005 (approximately EUR 1,436). Taking into account that the applicant could not give details of all the stolen items and their value, the prosecutor decided that the loss suffered by her should be considered approximate and, pursuant to Article 208 § 2 of the Criminal Procedure Code, decided to terminate the criminal case against E.R. in part because of the lack of evidence and to reject the applicant’s civil claim in the amount of LVL 8,434 (approximately EUR 12,049) as unsubstantiated.
32. On 16 December 1996 a public prosecutor of the Dobele District decided to terminate the remainder of the criminal proceedings. She established that during the pre-trial investigation no evidence had been obtained to justify charging I.B. with the burglary. As to E.R., considering that he was serving a sentence imposed on him in another set of criminal proceedings on 25 November 1996, and was thus unable to commit new offences, the prosecutor decided to terminate the criminal proceedings against him in the remaining part.
33. On 10 December 2002 the head of the Zemgale Region Public Prosecutor’s Office quashed the decision of the public prosecutor of the Dobele District to reject the applicant’s civil claim in the amount of LVL 8,434 (approximately EUR 12,049) as unsubstantiated. The head prosecutor instructed that, at the pre-trial stage, it had to be checked whether the burglary could have been carried out by another person, and that the applicant herself should be questioned in detail as regards the allegedly stolen items, their description and value. The prosecutor ordered the initiation of a new criminal case, no. 2503000802, in respect of the theft of the applicant’s property in the amount of LVL 8,434 (approximately EUR 12,049).
34. On 31 May 2005 the Dobele District public prosecutor informed the applicant that criminal proceedings no. 20517495 had been terminated on 16 December 1996, pursuant to Article 208 § 4 of the Criminal Procedure Code; criminal proceedings no. 2503000802 (concerning the stolen property in the amount of LVL 8,434 (approximately EUR 12,049)) were still ongoing at the Dobele Police Department, and the perpetrator had not been identified.
35. According to a letter of the Prosecutor’s Office of the Dobele District, criminal case no. 2503000802 was transferred to the Dobele District police for pre-trial investigation on 7 January 2003. The prosecutor responsible for the supervision of the investigation examined the case on 1 July 2005.
36. According to the submissions of the Government, the investigation of the criminal case is still ongoing.
37. On 10 June 2001 the applicant filed a civil claim for damages against the State Police Authorities with the Rīga Regional Court, and asked to be exempted from court taxes because of her poor financial situation. According to the documents she submitted to the Court, she attached a copy of her pensioner’s certificate of 15 May 1996, stating that she received an old-age pension in the amount of LVL 35.91 (approximately EUR 50), and the replies of the Zemgale public prosecutor of 13 February 2001, 26 September 2000 and 17 September 1997 to her complaints. She requested the court to award her compensation in the amount of LVL 250,000 (approximately EUR 357,143) for her stolen property and for the non-pecuniary damage she had suffered because the Jelgava police had acted contrary to the requirements of Article 80 of the Criminal Procedure Code.
38. On 14 June 2001 a judge of the Civil Chamber of the Rīga Regional Court informed the applicant that she had requested exemption from paying court taxes without submitting any evidence that she was financially unable to do so. The judge further noted that she had not submitted any documents confirming the circumstances on which her claim was based. The judge set a deadline of 23 July 2001 for rectification of those deficiencies.
39. On 27 June 2001 the applicant amended her claim, stating that because the police had acted contrary to the requirements of Article 80 of the Criminal Procedure Code her rights guaranteed by Article 13 of the Convention and Article 1 of Protocol No. 1 to the Convention had been violated. She again requested exemption from court taxes, attaching a copy of her pensioner’s certificate and copies of the replies of the Zemgale public prosecutor of 26 September 2000 and 17 September 1997 to substantiate the claim.
40. On 29 June 2001 the judge of the Rīga Regional Court replied to the applicant that her amendments of 27 June 2001 were insufficient and that she should rectify the deficiencies by 23 July 2001.
41. On 15 July 2001 the applicant amended her claim by submitting a copy of the decision of the Jelgava police of 11 July 1995, which acknowledged her as a civil claimant and stated that in order to assess the value of the remainder of the stolen property she was to invite witnesses to give evidence.
42. On 13 August 2001 the judge of the Rīga Regional Court considered that the deficiencies indicated by him had not been rectified and, finding that the claim had not been properly submitted, returned it to the applicant without examination.
43. On 4 October 2001 the Civil Chamber of the Supreme Court, in response to the applicant’s ancillary complaint of 21 August 2001, upheld the decision of the Rīga Regional Court. The court considered that the applicant had failed to submit evidence as to her financial situation and to attach documents establishing the circumstances her claim was based on. The decision was final and not subject to appeal.
1. The Criminal Procedure Code (Latvijas Kriminālprocesa Kodekss), as in force until 1 October 2005
44. Article 80 stated that “if an arrested person had property or an apartment which was left unattended, the police, a public prosecutor or a court had to ensure its protection”.
45. Article 101 stipulated that a civil claim could be submitted by a person who had suffered damage as a result of a crime. The civil claim could be brought against the accused or a person who was vicariously liable for the acts of the accused (paragraph 1). The civil claim could be lodged upon initiation of a criminal case, during the pre-trial investigation, or with the court before the adjudication of the case (paragraph 2). If the court stayed the adjudication, the civil claim could also be lodged before the beginning of the adjudication at the subsequent court hearing (paragraph 3). A person had the right to lodge a civil claim by way of civil proceedings if the claim had not been brought in criminal proceedings or if the claim was not adjudicated due to the termination of the criminal case or a not guilty verdict (paragraph 7).
46. Pursuant to Article 102, a person who had suffered pecuniary damage as a result of a criminal offence could bring a civil claim against an accused or a person who was vicariously liable for the acts of the accused, which would be examined by a court in conjunction with the criminal case. Further, a person who had been acknowledged as a civil claimant by a decision of the police, a public prosecutor or a court was entitled to submit a complaint in respect of acts of the aforementioned authorities.
47. Article 140 provided that a person who had suffered damage as a result of a crime could be declared a civil party during the pre-trial investigation.
48. Pursuant to Article 208 §§ 2 and 4, a criminal case or a part of it was to be terminated if a charge had not been proved and it was impossible to obtain additional evidence, and if it had been acknowledged, because of changed circumstances during the investigation of the case, that an offence committed by a person had lost its element of public danger or that that person no longer posed a danger to the public.
49. A civil claimant could submit a complaint about acts of the police to a public prosecutor. The complaint could be submitted to the prosecutor directly or through the intermediary of the person against whom the complaint was brought. A complaint submitted to a police officer had to be forwarded together with his explanations to the prosecutor within twenty-four hours (Article 220). The prosecutor had to decide on the complaint within three days from its receipt and notify the complainant of the outcome. If the complaint was rejected, reasons therefore had to be stated. Decisions and acts of a public prosecutor could be appealed against to a higher prosecutor, who had to deal with that appeal in accordance with the aforementioned procedures (Articles 221 and 222).
50. Pursuant to Article 308, if a civil claim had been left without examination upon adjudication of a criminal case, it could be lodged de novo within civil proceedings.
51. Article 139 § 5 stated that aggravated robbery carried a sentence of imprisonment of from six to fifteen years, with confiscation of property.
52. According to Article 7 § 1, civil claims for compensation for pecuniary or non-pecuniary damage in criminal matters may be brought in accordance with the procedures prescribed by the criminal procedure law.
53. Article 96 § 3 states that a judgment in criminal proceedings is binding in civil proceedings to the extent that it concerns the determination of the offence for which a defendant has been sentenced, and the liability of the defendant.
54. The court shall stay court proceedings if adjudication of the case is not possible prior to the deciding of another matter which is required to be adjudicated in accordance with criminal procedure (the relevant part of Article 214).
55. Article 1635 stipulates that every wrongful act or failure to act per se shall give the person who has suffered damage the right to claim compensation from the wrongdoer, insofar as he or she may be held liable for such act or failure.
56. Everyone has a duty to compensate for losses he has caused through his acts or failure to act (Article 1779). A loss shall be understood to mean any deprivation which can be assessed financially (Article 1770). Losses may be either losses that have already been incurred, or losses that are expected to be incurred; they give rise to a right to compensation (Article 1771). A loss which has already been incurred may be a diminution of the value of the victim’s existing property or a decrease in his or her anticipated profits (Article 1772).
57. Every person has the right to defend his rights and lawful interests in a court and, in the event of unlawful interference with his rights, everyone has the right to adequate compensation (Article 92).
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-90464
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: CHAMBER
DATE: 2009
DOCNAME: CASE OF AKPOLAT v. TURKEY
IMPORTANCE: 4
CONCLUSION: Violation of Article 5 - Right to liberty and security;Violation of Article 6 - Right to a fair trial
JUDGES: András Sajó;Françoise Tulkens;Ireneu Cabral Barreto;Nona Tsotsoria;Vladimiro Zagrebelsky
TEXT: 5. The applicant was born in 1975 and is currently serving a life sentence in a prison in Turkey.
6. On 18 July 1995 the applicant was arrested in Istanbul on suspicion of killing a person on behalf of the PKK. The same day he was placed in police custody, where two statements were taken from him by police officers.
7. On 31 July 1995 he was brought before a prosecutor and a judge, who questioned him further. The judge remanded the applicant in custody pending the introduction of criminal proceedings against him.
8. On 2 August 1995 the prosecutor at the Istanbul State Security Court filed an indictment with that court, accusing the applicant and five other persons of carrying out activities for the purpose of bringing about the secession of part of the national territory. He sought the death penalty under Article 125 of the Criminal Code.
9. Criminal proceedings began before the Istanbul State Security Court (“the trial court”) on 30 October 1995.
10. During the 31st hearing held on 28 February 2001, the applicant’s lawyer requested the trial court to release the applicant on bail. In the request the lawyer also referred to a number of judgments adopted by the European Court of Human Rights in cases concerning Article 5 of the Convention. The request for release was refused by the trial court. The objection lodged against the refusal was also rejected on 9 May 2001.
11. On 17 April 2002 the applicant was found guilty as charged and sentenced to death. The death sentence was commuted to life imprisonment on 24 September 2002. An appeal lodged by the applicant against his conviction was dismissed by the Court of Cassation on 10 June 2003.
VIOLATED_ARTICLES: 5
6


ITEMID: 001-70630
LANGUAGEISOCODE: ENG
RESPONDENT: MKD
BRANCH: ADMISSIBILITY
DATE: 2005
DOCNAME: IVANOVSKI v. "THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA"
IMPORTANCE: 4
CONCLUSION: Inadmissible
TEXT: The applicant, Mr Slobodan Ivanovski, is a Macedonian national who was born in 1946 and lives in Skopje. He was represented before the Court by a lawyer practising in Skopje, the former Yugoslav Republic of Macedonia.
On 27 October 1997 an individual brought criminal charges for defamation against the applicant, who at that time was a police officer.
In a summary procedure, on 3 October 2000 the Basic Court Skopje II Skopje found the applicant guilty and sentenced him to four months’ imprisonment suspended for one year. It found that the applicant told a third person (“the witness”) that the complainant would be convicted and sentenced to three years’ imprisonment and that he was unfit to carry a gun and that it would be seized. The court found the accusations credible and convicted the applicant of defamation. It, inter alia, stated:
“...the defendant [name] on 15 October 1997 visited the witness [name] at his work in the elementary school ... on which occasion he made untruthful statements about the complainant [name] and told him that the latter would be sentenced to at least 3 years imprisonment and that he was unfit to carry weapons and his pistol would be taken away...The court finds that the accused [name] and the witness [name] took part in the incident by taking into account the clear and precise statement of the witness [name] who described the critical incident and the defendant’s statement, who states that he did meet with the witness on the stated day...”
Before the decision was reached, on 3 October 2000, the court held a public hearing, which was attended by the complainant, the applicant and the witness to whom the defamatory statements were allegedly made. The applicant’s lawyer was not present at the hearing. She had not been properly summoned, which the court expressly noted in the minutes. However, despite the absence of the applicant’s lawyer, the court held the hearing as the applicant had been warned at the previous hearing held on 5 July 2000 that the (next) hearing would be held even in the lawyer’s absence, as legal representation was not compulsory and as the applicant had failed to secure the presence of his lawyer. The applicant did not explicitly object to the hearing proceeding in the absence of his lawyer. He did not ask for an adjournment and consented to giving evidence and himself put questions to the witness.
In his evidence to the court, the applicant stated that he had been served with the criminal complaint, but that he was not able to judge whether to remain silent or to defend himself. He rejected the accusations and declared himself not guilty. He stated that he had known the complainant for about 40 years and they had recently met more often, as he was divorcing and was asking for some consultations with the complainant who was a retired lawyer. He started seeing the complainant’s daughter. Their relations became troubled when the applicant allegedly refused the complainant’s proposal to transfer some property to the name of his daughter. He admitted that he occasionally saw the witness while on official visits to the school where the latter worked, but that he did not make any of the alleged defamatory statements to him.
The complainant stated that he had only known the applicant for several years and that he visited his house occasionally. As the applicant allegedly had asked him to found a company to enter into business relations with the underground in some neighbouring countries, he stopped all contact with him. After a couple of months, the complainant complained to the police authorities that the applicant was peering into his house, due to which internal disciplinary proceedings within the Ministry of the Interior were instituted against the latter. The event was noticed by the witness, who was a neighbour. He confirmed that, during the disciplinary proceedings, the applicant visited him several times in the school and threatened him to make him withdraw the statement. In the course of those visits, the applicant made untrue statements about the complainant to the witness which were the subject of criminal charges.
The witness confirmed that the applicant was the one who peeked into the complainant’s house, about which he made a statement to the police authorities. The applicant allegedly visited him several times at the school in order to persuade him to be objective and not to make statements against him in the disciplinary proceedings. He stated that the applicant did not tell him anything against the complainant, except not to be under his influence and to give an objective statement in the disciplinary proceedings. He also said that he thought that the applicant had mentioned to him that a gun would be seized from the complainant and that he would go to prison, but that he did not understand how would that be done and by whom. He received neither threats nor anything else from the applicant. He was also contemplating to complain to the police authorities about the applicant’s visits. He, inter alia, stated:
“... Sometime after that incident, the defendant ... visited me at work, and if I can say so, to pressure me because I understood he found out that a disciplinary procedure was initiated at his work place. He was telling me to be impartial and not to take the side of [name] the complainant, since he was my neighbour and he would definitely try to influence me to give a statement against him. During all those meetings, the defendant [name] was showing me pictures illustrating that he was in contact with the complainant’s [name] family. He was telling me about [name] his daughter, but he didn’t tell me anything about the complainant [name]. I repeat again that regarding the complainant [name] all he was saying was not to be under his influence and to give an impartial statement in the disciplinary procedure. That is all he was telling me. I say that he did not tell me anything regarding the complainant [name] as a person. I cannot quote him precisely, but I think that at one occasion, the defendant [name] mentioned that allegedly the complainant’s [name] pistol would be taken away and that he would be going to prison. But I did not understand in which context and by whom and in which way this would be done.”
The court refused the applicant’s request to summon several witnesses for the purpose of describing his relations with the complainant and his daughter as irrelevant for the offence of which he was accused.
The applicant appealed the court’s verdict on, inter alia, the following grounds: that the trial court violated his right to defend himself as he was tried in the absence of his lawyer; that the court erred in establishing the facts, especially in that it based its decision solely on the witness’s statement, which was not credible; and that it failed to call and examine the witnesses as proposed by the applicant. On 13 July 2001 the Appellate Court of Skopje dismissed both the applicant’s and his lawyer’s complaints as ill-founded. Regarding the applicant’s allegations of a violation of his right to defend himself before the trial court, the Appellate Court stated that:
“...according to the minutes of the hearing held on 5 July 2000, the accused was warned that if he would not secure the presence of his lawyer for the hearing scheduled for 3 October 2000, it would be held in her absence, as legal representation for criminal offences of that type was not compulsory. As the accused, despite the warning of the trial court, failed to secure the presence of his lawyer, the court finds that the trial court has properly decided to hold the hearing in the absence of his lawyer for representation was not compulsory. Thus, it did not violate his right to defend himself...”
The court dispensed with a hearing, albeit applicant’s request.
On 26 September 2001 the Public Prosecutor refused the applicant’s request to lodge a request for protection of legality with the Supreme Court.
Proceedings on the appeal
Article 362
“(1) A notification of the Chamber’s session will be given to the defendant and his lawyer, the person damaged as a complainant or to the private prosecutor who, within the period prescribed for the appeal or reply to the appeal, have requested to be informed about the session or have proposed a hearing to be held before the second instance court (Articles 364 to 366). The Chairman of the Chamber or the latter may decide a notification about the Chamber’s session also to be given to the parties when they have not requested it or to the party which has not requested it, if their presence would be useful for any matter to be clarified...”
Article 364
“(1) The hearing before the second instance court will be held only if it is necessary for new evidence to be presented due to an erroneously or incompletely established facts or for the evidence be re-presented and there are no justified reasons for the case be referred back to the first instance court for a retrial.
(2) For the hearing before the second instance court the defendant and his counsel, the prosecutor, the person damaged, the defence attorneys and legal representatives of the complainant, the person damaged as a complainant and the private prosecutor are summoned, as well as the witnesses and experts whom the court will decide to be heard...”
Summary proceedings
Article 416
“In the proceedings before the court in first instance for crimes of which a fine or imprisonment up to three years is prescribed as a main punishment, the provisions of Articles 417 to 430 of this Code will apply. If these provisions do not otherwise provide, the other provisions of this Code will be accordingly applied.”
Article 431
“(1) When the second instance court decides on appeal against the judgment of the first instance court delivered in a summary proceedings, both parties will be notified about the Chamber’s session only if the Chairman of the Chamber or the Chamber finds that the presence of the parties would be useful for the clarification of any matter...”
Defamation
Article 172
“(1) A person who expresses or spreads some untruth about another, which could damage his honor and reputation, shall be fined or sentenced to imprisonment of up to six months.
(2) If the crime from par. 1 is committed by means of the press, radio, television, or through other public media or at a public gathering, the offender shall be fined or sentenced to imprisonment of up to one year.
(3) If the untruth that is expressed or spread is of such significance that it caused or could have caused severe consequences for the complainant, the offender shall be sentenced to imprisonment of three months to three years.
(4) If the accused proves the truth of his statement, or if he/she proves that he had reasonable grounds to believe in the truthfulness of what he had stated or spread, he shall not be punished for defamation, but may be punished for insult (article 173), respectively for slight by reproach about a crime (article 175).
(5) A person who falsely expresses or spreads about another that he/ she has committed a crime which is prosecuted in the line of duty, he/ she shall be punished for defamation, even though he/ she had had reasonable grounds to believe in the truthfulness of what he/ she expressed or spread, if the expression or spreading is not performed under the conditions from article 176, item 2. The truthfulness of the fact that another has committed a crime for which he/ she is prosecuted in line of duty may be proved only with a sentence that has come into effect and with other evidence only if the prosecution of the trial is not possible or is not allowed.”


ITEMID: 001-69041
LANGUAGEISOCODE: ENG
RESPONDENT: SVK
BRANCH: CHAMBER
DATE: 2005
DOCNAME: CASE OF Z.M. AND K.P. v. SLOVAKIA
IMPORTANCE: 3
CONCLUSION: Preliminary objection rejected (non-exhaustion of domestic remedies);Violation of Art. 6-1 (length of the proceedings);Not necessary to examine Art. 6-1 (access to court);No violation of Art. 8;Violation of Art. 13+6;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings
JUDGES: Nicolas Bratza
TEXT: 8. The first applicant is the mother of the second applicant. The applicants were born in Slovakia in 1960 and 1981, respectively, and now live outside Slovakia. They both have Slovakian nationality and the nationality of the country of their permanent residence.
9. In 1985 the Bratislava 4 District Court (then Obvodný súd, at present Okresný súd) pronounced the first applicant’s divorce from Mr P., the biological father of the second applicant. The second applicant was entrusted to the care and custody of the first applicant.
10. In 1993 the first applicant married Mr O.A.M. abroad and the applicants set up their permanent residence with him there.
11. On 8 January 1996 Mrs O., the mother of the first applicant, filed an action with the Dunajská Streda District Court claiming that she should be granted the right to educate the second applicant, her granddaughter. At that time the second applicant was fourteen years old and both applicants were in Slovakia on a temporary stay. Mr P. later joined the proceedings on the side of Mrs O.
12. On 14 February 1996 the District Court appointed the Veľký Meder District Office (Okresný úrad) to look after the second applicant’s interests in the proceedings.
13. On 19 February 1996 the first applicant made several submissions to the District Court. She asserted that she and the second applicant were permanently residing outside Slovakia and that, in addition to Slovakian nationality, they also had the nationality of the country of their permanent residence. As they were staying in Slovakia only temporarily, the Slovakian courts had no jurisdiction to entertain the question of the education and care of the second applicant. The first applicant further expressed critical views as to the character of Mrs O. and Mr P. Finally, she lodged an appeal against the decision of 14 February 1996 arguing that officials of the District Office had previously failed to represent the second applicant’s interests adequately and that they could not be expected to do so properly in the future.
14. In April and May 1996 the first applicant sought to disqualify the judge dealing with the case as well as all other judges of the District Court on grounds of bias. The hearing scheduled for 13 May 1996 had therefore to be adjourned and the casefile was submitted to the Trnava Regional Court (Krajský súd) for a decision on the challenge.
15. On 27 May 1996 the first applicant filed a petition with the Bratislava Regional Court claiming that Mr P. should be deprived of his parental rights over the second applicant. According to the applicants, no decision has ever been taken in respect of this request.
16. On 31 May 1996 the District Office issued an interim measure ordering that the second applicant be temporarily placed in the care of Mrs O. The applicants claim that this measure was illegal and that it has never been served officially on them. The first applicant subsequently returned with the second applicant to their home abroad.
17. On 11 July 1996 the Trnava Regional Court sent the casefile back to the District Court instructing it to invite the first applicant to indicate which judges of the District Court she was challenging and why. Subsequently the police informed the District Court that the applicants had left Slovakia in June 1996.
18. On 26 August 1996 Mrs O. requested that the District Court issue an interim measure granting her the custody of the second applicant pending the outcome of the proceedings. The applicants have never been made officially aware of this request.
19. The casefile was again sent to the Trnava Regional Court in September 1996. The Regional Court decided that the District Court’s judges were not biased and, on 18 October 1996, returned the casefile to the latter.
20. The District Court held a hearing on 28 November 1996.
21. Following their arrival for another temporary stay in Slovakia, the District Court heard the first applicant and Mr O.A.M. on 5 December 1996 and the second applicant on 10 December 1996.
22. On 18 December 1996 the case was adjourned and on 19 December 1996 the District Court dismissed Mrs O.’s request of 26 August 1996 for an interim measure. The District Court did so observing that the applicants were living in Slovakia at that time and that, when questioned on 10 December 1996, the second applicant had expressed the wish to stay with the first applicant. The applicants maintain that at that time they were staying in Slovakia only temporarily.
23. On 14 January 1997 the first applicant filed a petition with the Dunajská Streda District Court in which she again claimed that Mr P. should be deprived of his parental rights over the second applicant.
24. On 16 January 1997 the District Court heard witnesses and on 30 January 1997 it appointed an expert in psychology to draw up a report on the second applicant. The latter filed an appeal against this decision.
25. On 3 February 1997 the District Court appointed the Dunajská Streda District Office to look after the second applicant’s interests in the proceedings. The applicants maintain that they have never been notified of the appointment.
26. On 13 February 1997 the expert informed the District Court that she was not in a position to produce the report because of a heavy workload.
27. The hearing called for 18 February 1997 had to be adjourned as the first applicant and Mr P. failed to appear. The District Court ordered that the District Office look into the upbringing environment of the second applicant and the personal and material situation of the first applicant and Mr P.
28. Mr P. requested that an interim measure be issued to prevent the second applicant from travelling abroad without his consent. On 21 February 1997 the District Court dismissed the request.
29. At a hearing held on 6 March 1997 the District Court heard the parties and a representative of the Dunajská Streda District Office. The first applicant was fined for disturbing the orderly conduct of the hearing by, as the applicants claim, objecting to the truthfulness of the testimony given by Mr P. The case was then adjourned and Mr P. was invited to submit documentary evidence.
30. On 7 March 1997 the first applicant filed an appeal “against all decisions” delivered by the District Court judge dealing with the case.
31. On 10 March 1997 Mr P. appealed against the decision of 21 February 1997. He also claimed that his right to meet the second applicant be determined by the court.
32. On 20 March 1997 the first applicant requested that further documentary evidence be taken.
33. On 27 March 1997 Mr O.A.M. lodged a request for adoption of the second applicant. It was his third request to this effect after he had withdrawn two similar requests made previously on 31 January and 19 February 1996.
34. On 13 May 1997 the District Court submitted the casefile to the Trnava Regional Court for a decision on the appeals filed by the parties. On 23 June 1996 the Regional Court returned the casefile to the District Court instructing it to ensure that the first applicant eliminated formal shortcomings in her appeal of 7 March 1997.
35. On 28 July 1997 the Trnava Regional Court dismissed the second applicant’s appeal against the decision of 30 January 1997 concerning the appointment of an expert and quashed the above District Court’s decision of 21 February 1997.
36. On 8 September and 6 October 1997 the District Court inquired of the first applicant’s father about the applicants’ whereabouts. On 15 September and 23 October 1997 he replied that the applicants were currently staying abroad where they had left on 6 May 1997. According to the applicants, they had left Slovakia on 23 April 1997 and were not present there until 6 May 1997.
37. From November 1997 to January 1998 the court attempted several times to establish the address of the applicants in the country of their residence. The police notified the address to the District Court on 29 January 1998.
38. On 24 February 1998, while both applicants were abroad, the District Court issued an interim measure prohibiting them inter alia from leaving Slovakia. On 25 March 1998 Mr O.A.M. appealed against this decision. The first applicant, Mrs O. and Mr P. also appealed.
39. On 14 April 1998 the casefile was submitted to the President of the Trnava Regional Court who returned the file on 7 May 1998.
40. On 8 July 1998, after having taken several procedural steps, the District Court resubmitted the casefile to the Trnava Regional Court for a determination of the appeals against the decision of 24 February 1998.
41. On 26 August 1998 the Trnava Regional Court quashed the District Court’s decision to the extent that it prohibited the applicants from travelling abroad and dismissed the request of Mr P. for an interim measure to this effect. The casefile was returned to the District Court on 4 September 1998. On 11 November 1998 and on 10 March 1999 the District Court judge arranged for service of the Regional Court’s decision on the parties.
42. In the meantime, on 28 October 1998, the first applicant had requested that further evidence be taken.
43. The District Court judge dealing with the case was ill for a considerable period between August 1998 and January 1999 and also between March and May 1999.
44. On 21 April 1999, on the complaint of Mrs O., the Constitutional Court found that her constitutional right to a hearing without unjustified delay had been violated in the above proceedings. In its decision the Constitutional Court admitted that, to a certain extent, the length of the proceedings was due to the behaviour of the parties. However, the case was not particularly complex and what was at stake in the proceedings called for particular diligence. The Constitutional Court further noted that the District Court had caused undue delays in the proceedings by failing to decide in a timely manner on the request for an interim measure restricting the applicants’ travel abroad, thus bringing about the need for the assistance of foreign authorities. Furthermore, by the time of the Constitutional Court’s decision the District Court judge had not yet prepared the request for assistance that was to be sent to these authorities.
45. The Constitutional Court further observed that the District Court had not proceeded with the case effectively in that it had failed to take evidence, including an expert opinion, required for a decision on the case. Delays in the proceedings had also arisen as a result of the ordinary courts’ failure to decide on the requests for interim measures within the statutory timelimit. Finally, the Constitutional Court noted that the District Court had failed to take any effective action in the case since 4 September 1998.
46. The applicants were not informed of the above proceedings before the Constitutional Court, did not take part in them and only learned of their outcome once the proceedings were completed.
47. On 3 September 1999 the District Court judge prepared a request for assistance which was to be submitted through the Slovakian Ministry of Justice to the competent authorities in the country of the applicants’ residence. In particular, the District Court sought that information be obtained from the first applicant and Mr O.A.M. as regards the care and education of the second applicant, Mr P.’s parental and visiting rights in respect of the second applicant and the second applicant’s adoption. The District Court also sought an inquiry into the general upbringing environment of the second applicant and the personal, social and material situation of the first applicant and Mr O.A.M.
48. In a letter of 26 November 1999 the Ministry of Justice invited the District Court to complete the request for assistance by submitting further information and copies of the relevant documents.
49. On 21 January 2000 the District Court took three separate decisions to discontinue the proceedings concerning, respectively, the education and care of the second applicant, the deprivation of Mr P. of his parental rights over her and her adoption by Mr O.A.M. The decisions stated that the second applicant had reached the age of majority in 1999 and that, therefore, the said matters could no longer be determined on the merits.
VIOLATED_ARTICLES: 13
6
VIOLATED_PARAGRAPHS: 6-1
NON_VIOLATED_ARTICLES: 8


ITEMID: 001-57543
LANGUAGEISOCODE: ENG
RESPONDENT: AUT
BRANCH: CHAMBER
DATE: 1974
DOCNAME: CASE OF NEUMEISTER v. AUSTRIA (ARTICLE 50)
IMPORTANCE: 2
CONCLUSION: Non-pecuniary damage - finding of violation sufficient;Pecuniary damage - claim dismissed;Costs and expenses award - domestic proceedings;Costs and expenses award - Convention proceedings
TEXT: 1. The Neumeister case was referred to the Court on 7 October 1966 by the European Commission of Human Rights (hereinafter referred to as "the Commission") and on 11 October 1966 by the Government of the Republic of Austria (hereinafter referred to as "the Government"). The case has its origin in an application against the Republic of Austria submitted to the Commission by an Austrian national, Mr. Fritz Neumeister, in 1963. The applicant complained, inter alia, of the length of time he had spent in detention while on remand from 24 February to 12 May 1961, that is, two months and sixteen days, and from 12 July 1962 to 16 September 1964, that is two years, two months and four days.
2. By judgment of 27 June 1968 the Court, while rejecting two other complaints of the applicant, held that there had been a breach of Article 5 (3) (art. 5-3) of the Convention in that the detention of Neumeister had been continued for longer than a reasonable time (first point of the operative part of the judgment and paragraphs 3 to 15 of the reasoning).
3. On 2 July 1968, the Vienna Regional Criminal Court sentenced the applicant to five years’ severe imprisonment for aggravated fraud; the two above-mentioned periods of detention on remand were reckoned as part of the sentence. The Supreme Court upheld that decision on 16 June and 4 November 1971.
4. On 23 December 1970, Neumeister presented to the Austrian Federal Ministry of Justice a claim for a provisional overall sum of 3,500,000 schillings compensation in reparation of the damage he had allegedly sustained by reason of the violation so found by the European Court. On 17 March 1971, the Finanzprokuratur (revenue department of the Attorney General’s office) informed him that the Republic of Austria could not accept that he was entitled to such compensation since the conditions required therefore under the law in force were not satisfied.
5. Considering this reply as a final decision under the law, the applicant addressed his claim to the Commission on 16 September 1971, referring to the judgment of 27 June 1968 and to Articles 5 (5) and 50 (art. 5-5, art. 50) of the Convention. He stated that, by reason of his second detention on remand (12 July 1962 - 16 September 1964), he had suffered considerable financial loss, not to mention personal injustice and humiliation. He alleged that the sudden cessation of his services had ruined his business; that not only had he lost important business contacts, but contracts in hand had had to be left unfulfilled or carried out incompletely; that this had resulted in a serious decline of the Scherzinger company and an almost total loss of the company’s capital. Reserving his right to present further claims, Neumeister for the time being estimated the loss at 3,500,000 schillings at least. He requested the Commission to accept his claim and to initiate the proceedings provided in this connection.
6. On 27 September 1971, Mr. Sørensen, Principal Delegate of the Commission in the earlier proceedings, transmitted the applicant’s request to the Registrar.
7. After consultation with the judges, the President of the Court directed that the examination of this aspect of the case should be conducted by the Chamber which had given judgment on 27 June 1968. Mr. O’Donoghue, a substitute judge since an additional drawing of lotson 12 May 1972, has been called upon to sit by reason of the death (April 1973) of Mr. Rolin, President; Mr. Balladore Pallieri has become President of the Chamber. In February 1972 Mr. Schima, appointed by the Government in February 1968 as an ad hoc judge when the elected judge of Austrian nationality, Mr. Verdross, was prevented from attending, found in agreement with the President, Mr. Rolin, that he was no longer able to sit to hear the case; in these circumstances Mr. Verdross has resumed ex officio his place in the Chamber. Mr. Bilge, a member of the Chamber in 1968 and of the Court until 7 November 1972, was not able to exercise his functions (Rule 4): he was appointed as a member of the Government of Turkey and subsequently as ambassador, and he has been replaced by Mr. Cremona, substitute judge.
8. On the instructions of the President of the Chamber, the Registrar requested the Agent of the Government to present his written observations on the question of the application of Article 50 (art. 50) in this case. The Registrar received these observations on 15 February and 23 May 1972.
9. On 17 February 1972, the Delegates of the Commission informed the Registrar that they would not reply to the Government’s observations for the time being but would do so later, in writing or at the hearing, as the Court might decide.
10. By Order of 21 March 1972, the President of the Chamber decided that the oral hearings should open on 23 May.
By telex message received on 16 May 1972, the Agent of the Government informed the Court that he had "initiated negotiations with a view to reach a friendly settlement of Mr. Neumeister’s claims for compensation"; he explained that "the aim of these negotiations (was) a pardon concerning the remaining part of the sentence Mr. Neumeister would have to serve"; the Agent asked the Court to adjourn the oral hearings "since the proceedings to bring about such settlement take at least six months".
On being consulted by the President of the Chamber through the Registrar, the Delegates of the Commission stated that they had "no objections to make", observing that the applicant had informed them that he agreed to an adjournment. On the same day, the President of the Chamber adjourned the hearings.
11. The Court has since received additional information concerning the events which preceded the dispatch of the telex message. On 12 May 1972, the applicant’s lawyer, Mr. Waldhof, had an interview at the Federal Ministry of Justice to negotiate an agreed settlement. Three days later a meeting took place at the Federal Ministry of Foreign Affairs, with Mr. Waldhof and his client on one side and the Agent of the Government and several senior officials on the other. An arrangement was contemplated on that occasion, but its precise terms have been disputed before the Court: according to the Government, Neumeister undertook to waive all claim to monetary compensation if the remainder of his sentence were remitted by an act of grace; the applicant’s account is that there was also mention of the Republic of Austria abandoning claims for money it was entitled to bring against him arising out of his conviction.
12. In November 1972, the President of the Chamber directed the Registrar to make enquiries about the progress of the negotiations for an agreed settlement which had begun in May.
By letter received on 26 March 1973, the Agent of the Government informed the Registrar that "the Federal President of the Republic of Austria on 14 February 1973 (had) granted a pardon to Fritz Neumeister in respect of the unserved part of the sentence pronounced by the Regional Court of Criminal Matters in Vienna on 2 July 1968 ... This pardon (had) the effect that Fritz Neumeister (was) to be considered under probation concerning the remainder of his sentence for the time of three years".
13. The observations and documents filed subsequently with the Court make it possible to reconstruct the events which occurred between 16 May 1972 and 14 February 1973:
(a) On 26 May 1972, Neumeister addressed to the Ministry of Justice a request for remission of sentence by an act of grace. Referring to the proceedings pending before the Court and to the negotiations between the Agent of the Government and his lawyer, he stated, inter alia, that it was clearly impossible to wipe out (ungeschehen zu machen) the detention on remand which he had had to endure from July 1962 to September 1964, but that partial reparation would be possible in his case if the Republic of Austria forbore to insist on his serving the remainder of his sentence. He added that for his part he was prepared to waive all claims for material reparation (materielle Ersatzansprüche) against the Republic of Austria. In an addendum of 2 June 1972, he stressed that he had offered in his letter of 26 May to withdraw, in the event of his obtaining the settlement under negotiation, the claim for compensation which he had made to the Commission.
(b) In a report of 11 January 1973 prepared for the Federal President of the Republic after consultation with the Ministry of Foreign Affairs and the Federal Chancellery, the Ministry of Justice stressed that conditional remission, by an act of grace; of the part of the sentence remaining unserved would be a more adequate reparation than monetary compensation. The Ministry of Foreign Affairs, to whom the report was submitted subsequently, made a note on the file to say they shared the opinion of the Ministry of Justice: the procedure contemplated seemed to them the most likely to show the public that Austria was disposed to observe its obligations under the Convention. The Federal Chancellery, for its part, made comments along the same lines and noted that Neumeister would be agreeable (ware einverstanden) to this form of reparation and would waive (würde verzichten) all claims to monetary compensation.
(c) It was on the basis of this proposal that, on 14 February 1973, the Federal President of the Republic of Austria granted Neumeister remission of the part of his sentence remaining unserved, i.e., two years, seven months and ten days. The decision, which bears the signature of the President and is countersigned by the Minister of Justice, is worded as follows: "I assent to the proposal for pardon, Zl. Gt. 42/73, for Fritz Neumeister".
Remission has the effect of a conditional sentence subject to a probationary period of three years. In order to conserve the benefit of the act of grace, Neumeister must comply with the conditions – and them alone - laid down in Section 3 of the Austrian Act on Conditional Sentences.
14. On the instructions of the President of the Chamber, the Registrar invited the Delegates of the Commission, on 27 March 1973, to present by 9 April any observations they might have to make on the letter received on 26 March from the Agent of the Government (paragraph 12 above).
In a reply of 5 April, the Delegates enquired "what (was), in the Austrian Government’s opinion, the significance of the information submitted by the Government in relation to Mr. Neumeister’s claim under Article 50 (art. 50) of the Convention".
15. On the following day the President of the Chamber, through the Registrar, accordingly requested the Government to provide explanations in writing by 26 April as to the significance they attributed to that information for the purposes of the proceedings pending in the case before the Court.
In a letter received on 27 April, the Agent stressed that the judgment delivered by the Court on 27 June 1968 had been "an essential element motivating the Federal President ... to grant the pardon to Mr. Neumeister"; he furthermore expressed the opinion - which, he stated, had been "shared by Mr. Neumeister ... during the conversations which (had) preceded the granting of the pardon – that this pardon (had) to be considered as a form of compensation in the largest sense of the word for any disadvantages Mr. Neumeister might have experienced through the violation" of Article 5 § 3 (art. 5-3).
16. On the instructions of the President of the Chamber, the Registrar invited the Delegates of the Commission, on 27 April 1973, to send him by 7 May their observations on that letter.
The Delegates’ reply was received at the Registry on 2 May: the applicant’s lawyer, Mr. Gussenbauer, had confirmed to the Secretary of the Commission that his client had been granted a pardon: Mr. Gussenbauer was now expecting "an agreement to be concluded between the Federal Ministry of Finance or the Finanzprokuratur and Mr. Neumeister by which the Republic of Austria (would) waive any claims against Mr. Neumeister resulting from" his conviction and sentence on 2 July 1968.
17. Again at the direction of the President of the Chamber, the Registrar wrote to the Agent of the Government and the Delegates of the Commission on 11 May 1973.
He requested the Delegates to send him by 15 June any observations they wished to make on the two latest communications received from the Agent (paragraphs 12 and 15 above).
In his letter to the Agent of the Government the Registrar asked him to present, also by 15 June, his observations on the above-mentioned letter of 2 May (paragraph 16 above) and informed him that the President of the Chamber especially wished to have explanations concerning the negotiations mentioned in that letter, their progress and the nature of the Republic of Austria’s claims against the applicant arising out of the judgment of 2 July 1968.
18. In their reply which was received on 4 June 1973, the Delegates considered that "pending a final clarification of the ... situation" they could do no more than communicate to the Court information which they had received from Mr. Gussenbauer. That information concerned the conversations which had taken place on 12 and 15 May 1972 (paragraph 11 above) and also a further discussion on 16 March 1973 between another of the applicant’s lawyers, Mr. Waldhof, and several senior Austrian officials, including the Agent of the Government.
19. In a letter received at the Registry on 11 July 1973, the Agent of the Government provided the Court with additional information from his side relating to the discussions of 15 May 1972 and 16 March 1973 (paragraphs 11 and 18 above). He stated that the granting of the pardon on 14 February 1973 "was not connected with any request by the competent Austrian authorities that Mr. Neumeister should waive his claim for monetary compensation, since on the one hand such a waiver appeared to be a logical consequence of the whole arrangement and, on the other hand, an act of grace by the Head of State could not be considered to be part of any ‘deal’". The Agent concluded by stating that his "Government (was) not in the position to take any further measures in respect of any new requests of Mr. Neumeister aiming at a friendly settlement of the case. If the Court" - unlike the Government -"should not consider the act of grace ... as sufficient and just compensation it (had) to be assumed that the attempt to reach a friendly settlement (had) ultimately failed".
20. It was through the two last-mentioned replies that the Court was apprised of the meeting which had taken place on 16 March 1973; further details concerning it have been furnished since.
At that meeting, Mr. Waldhof stated that his client was now withdrawing all his claims connected with the proceedings before the Court on condition that the Republic of Austria waived all possible claims against Mr. Neumeister which might have arisen out of the facts leading to his conviction.
As to what transpired later in the discussion two divergent versions have been given to the Court. According to the Government, the parties agreed to inform the organs at Strasbourg "of the mere fact of the granting of the pardon to Mr. Neumeister" and the Agent referred Mr. Waldhof "to the competent finance authorities" in so far as the additional requests were concerned. The applicant maintains on his side that on 16 March 1973 it was agreed in principle that the Republic of Austria would drop all claims it had against him arising out of his conviction in return for which he himself would waive his claim for compensation pending before the Court.
However that may have been, it was immediately after the meeting that the Agent of the Government informed the Court of the granting of the pardon to the applicant.
21. On the instructions of the President of the Chamber, the Registrar invited the Delegates of the Commission, on 11 July 1973, to send him in writing by 15 August any observations and submissions they wished to make. In their reply, received at the Registry on 25 July, the Delegates submitted certain observations on the applicant’s claim for compensation. They also transmitted to the Court a letter of 8 May 1972 which they had received from Neumeister and which, in view of the adjournment of the hearings fixed for 23 May 1972 (paragraph 10 above), they had not thought appropriate to forward to the Court at the time.
In that letter, the applicant gave further particulars of, and developed, his initial claim (paragraph 5 above). He estimated the total damage allegedly caused to his firm at 3,564,400 schillings at the very least, and the loss of his salary and allowances as manager as additional damage of not less than 405,000 schillings. He further claimed that he had spent in vain at least 100,000 schillings in lawyers’ fees in order to obtain his release. Finally, he considered that he was entitled to at least 3,000,000 schillings damages for the injustice he had suffered. He pointed out, however, that the total amount he claimed, 7,069,400 schillings, should be reduced somewhat as his business losses resulting from his arrest had been calculated on estimated gross profits. Noting that the damages due to him by the Republic of Austria considerably exceeded the total sum originally claimed, he reserved his right to make a corresponding increase in his claim and in addition he asked for payment of interest at an official rate of 5 per cent per annum.
22. In accordance with the directions of the President of the Chamber the Registrar, on 26 July, invited the Agent of the Government to send him by 30 August any observations he wished to make. On 7 August and at the request of the Government, the time was extended to 31 October.
23. The Government’s memorial entitled "further additional observations" was received at the Registry on 5 November. When transmitting it the same day to the Delegates of the Commission, the Registrar, in accordance with the instructions of the President of the Chamber, requested them to submit as soon as convenient and if possible by 23 November, any available evidence concerning the applicant’s claim which they might think useful to furnish to the Court. The Delegates submitted in reply, on 20 November and with some brief comments, several documents which Neumeister had appended to his above-mentioned letter of 8 May 1972 (paragraph 21 above), including the balance sheets of the Scherzinger company for the years 1961 to 1966.
24. On 12 November 1973 and on the instructions of the President of the Chamber, the Registrar requested the Agent of the Government to send him, if possible by 23 November, a copy of the act of grace of 14 February 1973 (paragraph 12 above) and to indicate on the same occasion the condition or conditions to which the remission of the applicant’s sentence was made subject unless the same appeared from the terms of the act of grace itself.
That document and the information requested were received at the Registry on 29 November and 11 December 1973 (paragraph 13 (c) above).
25. By Order of 6 December 1973, the President of the Chamber decided that the oral hearings should open on Tuesday, 22 January 1974.
26. The public hearings took place on 22 and 23 January in the Human Rights Building at Strasbourg.
There appeared before the Court:
- for the Commission:
- for the Government:
and
The Court heard the addresses and submissions of these representatives as well as their replies to questions put by several judges.
The Government produced to the Court a copy of the request for pardon made on 26 May 1972 and several other documents relating to the meetings and consultations which had preceded the decision of the President of the Republic taken on 14 February 1973 (paragraphs 10 to 13 above).
The Delegates of the Commission produced copies of correspondence exchanged on 30 October and 22 November 1973 between Mr. Waldhof and the Ministry of Finance. They, furthermore, handed in to the Court a statement of account dated 18 January 1974 in which Neumeister put his costs for lawyers’ fees at approximately 250,000 to 260,000 schillings.
27. On 24 January 1974, the Registrar informed the Agent of the Government that the President had fixed at two weeks the time within which the Agent was to file any observations in writing he might wish to make on the above mentioned statement of account of 18 January. Observations were received at the Registry on 11 February and 27 March.


ITEMID: 001-80464
LANGUAGEISOCODE: ENG
RESPONDENT: POL
BRANCH: CHAMBER
DATE: 2007
DOCNAME: CASE OF BĄCZKOWSKI AND OTHERS v. POLAND
IMPORTANCE: 2
CONCLUSION: Violation of Art. 11;Violation of Art. 13;Violation of Art. 14
JUDGES: Nicolas Bratza
TEXT: 7. The applicants, a group of individuals and the Foundation for Equality (of whose executive committee the first applicant is also a member empowered to act on its behalf in the present case), wished to hold, within the framework of Equality Days organised by the Foundation and planned for 1012 June 2005, an assembly (a march) in Warsaw with a view to alerting public opinion to the issue of discrimination against minorities – sexual, national, ethnic and religious – and also against women and disabled persons.
8. On 10 May 2005 the organisers held a meeting with the Director of the Safety and Crisis Management Unit of Warsaw City Council. During this meeting an initial agreement was reached as to the itinerary of the planned march.
9. On 11 May 2005 Mr Bączkowski obtained an instruction of the Warsaw Mayor's Office on “requirements which organisers of public assemblies have to comply with under the Road Traffic Act” should the assembly be regarded as an “event” (impreza) within the meaning of Article 65 of that Act.
10. On 12 May 2005 the organisers applied to the City Council Road Traffic Office for permission to organise the march, the itinerary of which would lead from the Parliament buildings (Sejm) to Assembly Square (Plac Defilad) in the centre of Warsaw.
11. On 3 June 2005 the Traffic Officer, acting on behalf of the Mayor of Warsaw, refused permission for the march, relying on the organisers' failure to submit a “traffic organisation plan” (“projekt organizacji ruchu”) within the meaning of Article 65 (a) of the Road Traffic Act, which they had allegedly been ordered to submit.
12. On the same day the applicants informed the Mayor of Warsaw about stationary assemblies they intended to hold on 11 June 2005 in seven different squares in Warsaw. Four of these assemblies were intended to protest about discrimination against various minorities and to support actions of groups and organisations combating discrimination. The other three planned assemblies were to protest about discrimination against women.
13. On 9 June 2005 the Mayor issued decisions banning the stationary assemblies to be organised by Mr Bączkowski, Mr Biedroń, Mr Kliszczyński, Ms Kostrzewa, Mr Szypuła, and another person, Mr N. (who is not an applicant), who are active in various nongovernmental organisations acting for the benefit of persons of homosexual orientation. In his decision the Mayor relied on the argument that assemblies held under the provisions of the Assemblies Act of 1990 (Ustawa o zgromadzeniach) had to be organised away from roads used for road traffic. If they were to use roads, more stringent requirements applied. The organisers wished to use cars carrying loudspeakers. They had failed to indicate where and how these cars would park during the assemblies so as not to disturb the traffic, and how the movement of persons and these cars between the assembly sites would be organised.
14. Moreover, as a number of requests had been submitted to organise other assemblies on the same day the tenor of which ran counter to the ideas and intentions of the applicants, permission had to be refused in order to avoid any possible violent clashes between participants in the various demonstrations.
15. On the same day the municipal authorities, acting on the Mayor's behalf, allowed the three planned assemblies concerning discrimination against women to be held as requested by the applicants.
16. On the same day the same authorities permitted six other demonstrations to be held on 11 June 2005. The themes of these assemblies were as follows: “For more stringent measures against persons convicted of paedophilia”, “Against any legislative work on the law on partnerships”, “Against propaganda for partnerships”, “Education in Christian values, a guarantee of a moral society”, “Christians respecting God's and nature's laws are citizens of the first rank”, “Against adoption of children by homosexual couples”.
17. On 11 June 2005, despite the decision given on 3 June 2005, the march took place. It followed the itinerary as planned in the original request of 12 May 2006. The march, attended by approximately 3,000 people, was protected by the police.
18. In addition to the march, nine stationary assemblies were held on the same day under permission granted by the Mayor on 9 June 2005 (see paragraphs 1516 above).
19. On 28 June 2005 the applicant Foundation appealed to the Local Government Appeals Board against the decision of 3 June 2005 refusing permission for the march. It was argued that the requirement to submit “a traffic organisation plan” lacked any legal basis and that the applicants had never been requested to submit such a document prior to the refusal. It was also argued that the decision amounted to an unwarranted restriction of freedom of assembly and that it had been dictated by ideological reasons incompatible with the tenets of democracy.
20. On 22 August 2005 the Board quashed the contested decision, finding that it was unlawful. The Board observed that under the applicable provisions of administrative procedure the authorities were obliged to ensure that parties to administrative proceedings had an opportunity of effectively participating in them. In the applicant's case this obligation had not been respected in that the case file contained no evidence that the applicant Foundation had been informed of its procedural right to have access to the case file.
The Board's decision further read, inter alia:
“In the written grounds of the decision complained of, the firstinstance authority refers to the fact that no traffic organisation plan is to be found in the case file. Under section 65 (a) item 3 (9) an organiser of a demonstration is obliged to develop such a plan in cooperation with the police if he or she is required to do so by the authority. However, in the case file there is no mention that the organisers were obliged to submit such a plan. (...) The document on the procedure for obtaining permission to organise an event which was served on the organisers contained no information on such an obligation either.
Having regard to the fact that the organisers' request concerned a march to be held on 11 June 2005 and that the appeal was received by the Board's Office [together with the case file] on 28 June 2005, the proceedings had already become devoid of purpose by that latter date.”
21. On 10 June 2005 the applicants appealed to the Mazowsze Governor against the Mayor's refusals of 9 June 2005 of permission to hold several of the planned assemblies. They argued that the assemblies were to be entirely peaceful and that banning them breached their freedom of assembly guaranteed by the Constitution. They submitted that the assemblies did not pose any threat to either public order or morals. They contested the argument relied on in the decision that they were required to submit a document on the planned itinerary between the places where the assemblies were to be held, arguing that they only intended to organise stationary assemblies, not any movement of persons between them, and that they should not be held responsible for the organisation or supervision of such movement.
22. On 17 June 2005 the Mazowsze Governor quashed the contested 9 June 2005 refusals of authorisation to hold the assemblies .
It was first observed that these decisions breached the law in that the parties had been served only with copies of the decisions, not with originals as required by the law on administrative procedure. It was further noted that the Mayor had informed the media of his decisions before they had been served on the applicants, which was manifestly in breach of the principles of administrative procedure.
23. It was further observed that the 1990 Assemblies Act was a guarantee of freedom of assembly in respect of both the organisation of and participation in assemblies. The Constitution clearly guaranteed freedom of assembly, not a right. It was not for the State to create a right to assembly; its obligation was limited to ensuring that assemblies were held peacefully. Thus the applicable law did not provide for any permit for the holding of an assembly.
24. The Governor noted that the requirement to submit a permit to occupy a part of the road, based on the provisions of the Road Traffic Act, lacked any legal basis in the provisions of the Assemblies Act. The Mayor had assumed that the demonstration would occupy a part of the road, but had failed to take any steps to clarify whether this had really been the organisers' intention, which he was obliged to do by law.
It was further observed that a decision banning an assembly had to be regarded as a method of last resort because it radically restricted freedom of expression. The principle of proportionality required that any restriction of constitutionally protected freedoms be permitted only in so far as it was dictated by the concrete circumstances of a particular case.
25. The Governor noted in this connection that the Mayor's reliance on the threat of violence between the demonstrations organised by the applicants and the counterdemonstrations planned by other persons and organisations for the same day could not be countenanced. It was tantamount to the administration endorsing the intentions of organisations which clearly and deliberately intended to breach public order, whereas protecting the freedom of expression guaranteed by the Assemblies Act should be an essential task of the public powers.
26. He then discontinued the proceedings as they had become devoid of purpose, the assemblies having taken place on 11 June 2005.
27. “E. Siedlecka: The Assemblies Act says that freedom of assembly can be restricted only if a demonstration might entail a danger to life or limb, or a major danger to property. Did the organisers of the march write anything in their application that indicates that there is such a danger?
Mayor of Warsaw: I don't know, I haven't read the application. But I will ban the demonstration regardless of what they have written. I am not for discrimination on the ground of sexual orientation, for example by ruining people's professional careers. But there will be no public propaganda about homosexuality.
E. S. What you are doing in this case is precisely discrimination: you are making it impossible for people to use their freedom only because of their particular sexual orientation.
MoW: I do not forbid them to demonstrate, if they want to demonstrate as citizens, not as homosexuals.
E. S.: Everything seems to suggest that – like last year – the Governor will quash your prohibition. And if the organisers appeal to the administrative court, they will win, because preventive restrictions on freedom of assembly are unlawful. But the appeal proceedings will last some time and the date for which the march is planned will pass. Is this what you want?
MoW: We will see whether they win or lose. I will not let myself be persuaded to give my permission for such a demonstration.
E. S.: Is it right that the exercise of people's constitutional rights should depend on the views of the powers that be?
MoW: In my view, propaganda about homosexuality is not to the same as exercising one's freedom of assembly.”
28. Article 57 of the Constitution reads:
Freedom of peaceful assembly and participation in such assemblies shall be ensured to everyone. Limitations upon such freedoms may be imposed by statute.
29. Article 79 § 1 of the Constitution, which entered into force on 17 October 1997, provides as follows:
“In accordance with principles specified by statute, everyone whose constitutional freedoms or rights have been infringed shall have the right to appeal to the Constitutional Court for a judgment on the conformity with the Constitution of a statute or other normative act on the basis of which a court or an administrative authority has issued a final decision on his freedoms or rights or on his obligations specified in the Constitution.”
30. Article 190 of the Constitution, insofar as relevant, provides as follows:
“1. Judgments of the Constitutional Court shall be universally binding and final.
2. Judgments of the Constitutional Court, ... shall be published without delay.
3. A judgment of the Constitutional Court shall take effect from the day of its publication; however, the Constitutional Court may specify another date for the end of the binding force of a normative act. Such time-limit may not exceed 18 months in relation to a statute or 12 months in relation to any other normative act. ...
31. Pursuant to section 1 of the 1990 Assemblies Act, everyone has the right to freedom of peaceful assembly. A gathering of at least fifteen persons, called in order to participate in a public debate or to express an opinion on a given issue, is to be regarded as an assembly within the meaning of the Act.
32. Under section 2, freedom of assembly can be restricted only by statute and where it is necessary for the protection of national security or public safety, for the protection of health or morals or for the protection of the rights and freedoms of others.
33. All decisions concerning the exercise of freedom of assembly must be taken by the local authorities in the municipality where the assembly is to be held. These decisions can be appealed against to the Governor.
34. Under section 3 of the Act, the municipality must be informed by the organisers of the intention to hold a public gathering in the open air for an indeterminate number of persons. Under section 7 such information must be submitted to the municipality not earlier than thirty days before the planned date of the demonstration and not later than three days before it. The information must include the names and addresses of the organisers, the aim and programme of the demonstration, its place, date and time as well as information about the itinerary if the demonstration is intended to proceed from one place to another.
35. Pursuant to section 8 the municipality shall refuse permission for the demonstration if its purpose is in breach of the Act itself or of provisions of the Criminal Code, or if the demonstration might entail a danger to life or limb, or a major danger to property.
36. A first-instance refusal of permission to hold a demonstration must be served on the organisers within three days of the date on which the relevant request was submitted and not later than three days before the planned date of the demonstration. An appeal against such a refusal must be lodged within three days of the date of its service. The lodging of such an appeal does not have a suspensive effect on the refusal of permission to hold the demonstration.
37. A decision given by the appellate authority must be served on the organisers within three days of the date on which the appeal was submitted.
38. Under section 65 of the Road Traffic Act of 1997, as amended in 2003, the organisers of sporting events, contests, assemblies and other events which may obstruct road traffic are obliged to obtain permission for the organisation of such assemblies.
39. Under section 65 read together with section 65 (a) of the Act, organisers of such events are obliged to comply with various administrative obligations specified in a list contained in that provision and numbering nineteen items, including the obligation to submit a traffic organisation plan to the authorities.
40. These provisions were repealed as a result of the judgment of the Constitutional Court, referred to below.
41. In its judgment of 18 January 2006 the Constitutional Court examined a request submitted to it by the Ombudsman to determine whether the requirements imposed on organisers of public events by the provisions of the Road Traffic Act were compatible with the Constitution in so far as they impinged on freedom of assembly, or whether they amounted to an excessive limitation of that freedom.
42. The Constitutional Court observed that the essence of the constitutional problem was whether the requirements imposed by section 65 of the Act were compatible with freedom of expression as formulated by the Constitution and developed by the Assemblies Act. It noted that the 1990 Assemblies Act was based on the premise that the exercise of this freedom did not require any authorisations or licences issued by the State. As it was a freedom, the State was obliged to refrain from hindering its exercise and to ensure that it was enjoyed by various groups despite the fact that their views might not be shared by the majority.
43. Accordingly, the Assemblies Act provided for a system based on nothing more than the registration of the proposed assembly.
The court observed that subsequently, when it enacted the Road Traffic Act, the legislature had incorporated various administrative requirements which were difficult to comply with into the procedure created for the organisation of sporting events, contests and assemblies, thus replacing the registration system by a system based on permission. In so doing, it placed assemblies within the meaning of the Assemblies Act on a par with events of a commercial character or organised for entertainment purposes. This was incompatible with the special position that freedom of expression occupied in a democratic society and rendered nugatory the special place that assemblies had in the legal system under the Constitution and the Assemblies Act. The court also had regard to the fact that the list of requirements imposed by the Road Traffic Act contained as many as nineteen sundry administrative obligations. The restrictions on freedom of assembly imposed by that Act were in breach of the requirement of proportionality applicable to all restrictions imposed on the rights guaranteed by the Constitution.
44. The court concluded that section 65 of the Road Traffic Act was incompatible with the Constitution in so far as it applied to assemblies.
VIOLATED_ARTICLES: 11
13
14