ITEMID: 001-59364
LANGUAGEISOCODE: ENG
RESPONDENT: CHE
BRANCH: GRANDCHAMBER
DATE: 2001
DOCNAME: CASE OF D.N. v. SWITZERLAND
IMPORTANCE: 1
CONCLUSION: Violation of Art. 5-4;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings
JUDGES: Elisabeth Palm
TEXT: 9. The applicant, born in 1964, had been placed in psychiatric detention on eleven occasions since 1989. In 1994 she was hospitalised in February, June and September.
10. On 14 November 1994 Dr E., a district medical officer (Bezirksarzt) in St Gall, decided in agreement with the applicant to send her to the Wil cantonal psychiatric clinic (“the psychiatric clinic”) on account of chronic schizophrenia and of constituting a danger to herself.
11. On 1 December 1994 the applicant applied for release from the psychiatric clinic. Her request was refused on the same day by Dr O., the chief medical officer of the psychiatric clinic, who referred, inter alia, to a psychotic outbreak (Schub) of recurring schizophrenia and to her inability to accept her illness (mangelnde Krankheitseinsicht).
12. On 12 December 1994 the applicant, who was represented by counsel, filed an application with the Administrative Appeals Commission (Verwaltungsrekurskommission) of the Canton of St Gall, requesting, with reference to Article 397e § 2 of the Swiss Civil Code (Zivilgesetzbuch), her release from the psychiatric clinic. She also requested that the expert who was to examine her should not act as specialised judge (Fachrichter).
13. The Administrative Appeals Commission appointed one of its members, R.W., a doctor specialising in psychiatry and psychotherapy, to act as judge rapporteur.
14. On 15 December 1994 R.W. interviewed the applicant at the psychiatric clinic from 2.25 p.m. to 3.15 p.m. A court registrar (Gerichtsschreiberin) was also present. According to the verbatim record prepared by the latter, R.W. concluded the interview as follows:
“W. explains the further procedure and that the hearing will take place on 28 December 1994.
W.: I shall propose to the court to dismiss the action.
N.: Pity.”
15. By letter of 19 December 1994 the Administrative Appeals Commission informed the applicant’s counsel that the hearing had been fixed for 28 December 1994 at the psychiatric clinic. The letter referred to R.W. as being one of the specialised judges on the bench and rapporteur. It was further stated that at the hearing counsel would have the opportunity to comment on the expert opinion and on the case file.
16. On 23 December 1994 R.W. submitted his expert opinion. He diagnosed a schizophrenic mental illness and found that the applicant could not be released in view of the required high doses of medication. The report concluded: “If the applicant’s situation does not clearly improve before the date of the hearing, I recommend dismissal of the action. The applicant may consult this report.”
17. The hearing took place on 28 December 1994 at the psychiatric clinic. The bench of the Administrative Appeals Commission consisted of the President, who was a professional judge, and four other judges, namely a youth attorney (Jugendanwalt) and lawyer; a district director and curator (Amtsvormund) of the social services; an administrator of Pro Infirmis, a charitable association assisting the ill; and R.W., the rapporteur. The Administrative Appeals Commission heard two doctors from the psychiatric clinic and the applicant. The applicant’s counsel, who was on holiday, remained absent, the Administrative Appeals Commission having refused to grant his request to postpone the hearing until January 1995.
18. On 28 December 1994 the Administrative Appeals Commission dismissed the applicant’s action.
19. In its decision, the Administrative Appeals Commission concluded with reference, inter alia, to R.W.’s expert opinion that the applicant suffered from severe mental disturbances warranting her detention in a psychiatric institution.
20. In so far as the applicant had requested to be examined by an expert who was not a member of the Administrative Appeals Commission, it was found that the she had not substantiated her request. Reference was made to the case-law of the Federal Court (Bundesgericht), in particular a decision published in 1993 (Bundesgerichtsentscheide (BGE), vol. 119 Ia, p. 260), where that court had not expressly ruled out the combination of expert and judicial functions.
21. The applicant lodged a public-law appeal (staatsrechtliche Beschwerde) with the Federal Court, complaining, inter alia, of the position of the expert R.W., who should not have dealt with the case as he had already previously dealt with it by acting as an expert (Vorbefassung).
22. On 3 April 1995 the Federal Court dismissed the public-law appeal. In respect of the position of the expert, the court found, with reference to its own case-law:
“In the letter ... of 19 December 1994 counsel for the applicant was informed of the identity of the expert, and also that he would act as specialised judge and rapporteur. Already in her application to the Administrative Appeals Commission the applicant had provisionally requested that the expert should not act as specialised judge. However, she does not discuss the contrary opinion of the Federal Court. In line with the Federal Council’s Message to Parliament concerning the part of the Civil Code dealing with committal to a psychiatric institution, ... it has not been called in question that experts within the meaning of Article 397e § 5 of the Civil Code will also act as members of the deciding body ..., to the extent that their position can at all be compared with that of a regular expert who is consulted in evidence proceedings ... It is true that the Federal Court has recently described the combination of expert and judicial functions as being ‘not entirely unobjectionable’ ... However, no change of case-law can be seen in that decision, and the applicant has not shown today in what respect such a change would be called for ...”
23. Articles 397a et seq. of the Swiss Civil Code concern deprivation of liberty, inter alia, on account of mental illness. Articles 397a and 397b list the conditions for such deprivation. Articles 397d, 397e and 397f provide as follows, in the version applicable at the relevant time:
D. Judicial review
1. The person concerned or another close person may lodge in writing with the judge a complaint against the decision within ten days of its receipt.
2. This right shall apply even if a request for release has been refused.
E. Proceedings in the cantons
I. In general
The proceedings shall be determined by the cantonal law with the following exceptions:
1. In each decision the person concerned shall be told the reasons of the decision and informed in writing of the possibility of lodging a complaint with a judge.
2. Every person who enters a clinic must immediately be informed in writing that a complaint can be lodged with a judge in case of detention or if a request for release is refused.
3. A request for judicial examination shall immediately be transferred to the competent judge.
4. The request for judicial examination can be granted suspensive effect by the authority ordering the hospitalisation or by the judge.
5. In the case of mentally ill persons a decision can only be taken after consultation of an expert; if in judicial proceedings this has already happened, higher courts need not do so.
II. Before the court
1. The judge shall decide in simple and speedy proceedings.
2. Where necessary he shall appoint a legal representative for the person.
3. The judge of first instance shall hear this person orally.”
24. Upon enactment of these provisions the Federal Council published in 1977 in the Official Gazette (Bundesblatt 1977, vol. III, p. 37) a message (Botschaft) to the Federal Parliament in which it was explained that cantons were free to appoint as experts for these release proceedings persons within or outside the judicial body deciding on the release.
25. The Federal Court has developed extensive case-law on Article 397e § 5 (see paragraph 23 above). In a judgment published in 1984 (BGE, vol. 110 II, p. 122) it dealt with the issue whether the expert referred to in Article 397e § 5 could act as a judge in the proceedings and stated:
“This provision is complied with if experts belong as members to the deciding body ... The purpose of the statutory provision is that in the case of mentally ill persons no decision should be taken without the advice and the specialised knowledge of psychiatrically trained doctors. This will be the case in an optimal manner if such doctors participate as members of the judicial body.”
26. In a judgment of 1992 (BGE, vol. 118 II, p. 253) the court stated:
“It is one of the essential procedural guarantees that the expert mentioned in Article 397e § 5 of the Civil Code, even if he is not a member of the deciding body, shall be both an established expert and impartial. This implies that the expert shall not already have expressed an opinion on the illness of the person concerned in the same procedure, i.e. in the administrative proceedings preceding the court procedure ... For it should not be overlooked that the judge who examines the grounds stated in Article 397a §§ 1 and 3 of the Civil Code will substantially depend on the opinion of the expert. The position granted by the federal legislator to the expert within the framework of detention on grounds of protective care is exceptional: his position cannot at all be compared with that of an expert who is consulted in proceedings in which evidence is taken. The expert must imperatively be heard before the contested decision whether or not to release a person from detention.”
27. In judgments published in 1993 (BGE, vol. 119 Ia, p 260, and vol. 119 II, p. 319) the Federal Court referred to the “not entirely unobjectionable combination of expert and judicial functions” (“nicht ganz unbedenkliche Verquickung sachverständiger und richterlicher Funktionen”) and, in respect of the expert
mentioned in Article 397e § 5 of the Civil Code, to “the particular requirement of critical objectivity towards clinical doctors and psychiatrists” (“die hier besonders geforderte kritische Objektivität gegenüber den Klinikärzten und den Psychiatern”).
28. In the Canton of St Gall the Administrative Appeals Commission (Verwaltungsrekurskommission) is the competent body to decide on matters of deprivation of liberty if and when a person contests detention. The commission has one full-time judge and twenty-four to thirty specialised judges, including doctors (often psychiatrists) and social workers. The professional judges are appointed by the cantonal parliament; the non-professional judges and the specialised judges are appointed, upon proposal of the Administrative Tribunal of the Canton of St Gall, by the cantonal government. A judge’s term of office lasts six years.
29. The Administrative Appeals Commission sits with five judges, including regular judges and specialised judges.
30. The Administrative Appeals Commission has opted for the system whereby the expert required by Article 397e § 5 of the Civil Code is appointed from the bench of judges.
31. According to section 71c(2) of the Act on Administrative Court Procedure (Gesetz über die Verwaltungsrechtspflege) of the Canton of St Gall, in the version in force at the relevant time, after an action has been filed with the Administrative Appeals Commission the President will immediately order the questioning of the person concerned by a judge. The questioning is undertaken by the judge rapporteur who will then prepare an expert opinion (Rule 6 of the Rules of Procedure of the Administrative Appeals Commission – Reglement über den Geschäftsgang der Verwaltungsrekurskommission).
VIOLATED_ARTICLES: 5
VIOLATED_PARAGRAPHS: 5-4


ITEMID: 001-23191
LANGUAGEISOCODE: ENG
RESPONDENT: ROU
BRANCH: ADMISSIBILITY
DATE: 2002
DOCNAME: ROSCA STANESCU and ARDELEANU v. ROMANIA
IMPORTANCE: 1
CONCLUSION: Inadmissible
TEXT: The applicants, Mr Sorin Roşca Stănescu and Mrs Cristina Ardeleanu, are Romanian nationals, born in 1949 and 1975 respectively and living in Bucharest (Romania). They were represented before the Court by Mr Vasiliu, of the Bucharest Bar.
The facts of the case, as submitted by the parties, may be summarised as follows.
The applicants are journalists. At the material time they were working for the newspaper Ziua.
On 11 May 1995 the Bucharest police commenced a judicial investigation concerning a number of articles the applicants had published in Ziua. According to the police, certain statements made about the then Romanian President, Mr Iliescu, amounted to an insult to authority, an offence punishable under Article 238 of the Criminal Code.
At their trial in the Bucharest Court of First Instance, the applicants pleaded that Article 238 of the Criminal Code was unconstitutional. The Constitutional Court dismissed their objection in a decision of 6 March 1996, noting that the purpose of Article 238 of the Criminal Code was to uphold the authority of the State and that it was necessary to punish such an offence as the authority of the State was a prerequisite for the exercise of State power. The offence therefore involved an insult aimed at authority, not an individual. Furthermore, whether the offence had taken place or not depended on the status of the victim, who had to be someone holding high office within the State. Article 238 was necessary to create an ideal climate of order and perfect security for people entrusted with important duties under the Government’s programme. The crucial requirement for the charge of insult to authority to be made out was that the offence committed should have been such as to undermine authority, for if that condition was not satisfied, the offence did not constitute an insult to authority but an offence against an individual, even if it had been committed against a person holding high office within the State.
The applicants appealed against the Constitutional Court’s decision.
On 24 October 1996 the Bucharest Court of First Instance found the applicants guilty of the offence of insult to authority provided for in Article 238 of the Criminal Code on the ground that in articles published from 9 May 1995 onwards in Ziua they had denigrated or even insulted the Romanian President, Mr Iliescu, through tendentious or false statements. The court noted, in particular, that in an article published on 9 May 1995, the first applicant had called the Romanian President, Mr Iliescu, a murderer, accusing him of having ordered the distribution of arms on 22 December 1989 and hence of having deliberately triggered off the ensuing “genocide”. The Court of First Instance also noted that the applicants had stated in an article published on 31 May 1995 that Mr Iliescu had been recruited by the KGB while he was studying in Moscow.
The court sentenced the first applicant to one year’s imprisonment and the second to two years’ imprisonment.
The applicants appealed against that decision.
On 19 November 1996 the Constitutional Court dismissed the applicants’ appeal against its decision of 6 March 1996, holding that Article 238 of the Criminal Code was compatible with the Constitution and Article 10 of the European Convention on Human Rights.
The appeal against the judgment of 24 October 1996 was allowed by the Bucharest County Court in a decision of 24 March 1997 against which no further appeal lay. The County Court acquitted the applicants, holding that the provisions of Article 238 of the Criminal Code were not applicable to the press, as the statements in question related to political matters, for which the freedom of expression as safeguarded by Article 10 of the Convention was broader. Lastly, the County Court considered that the applicants could not be punished otherwise than by the application of rules of professional conduct.
The relevant provisions of the Criminal Code are the following:
OFFENCES AGAINST DIGNITY
“Anyone who disparages the reputation or honour of another through words, gestures or any other means, or by exposing him to mockery, shall be liable to imprisonment for between one month and two years or to a fine. ...
The prosecuting authorities are seised of the case on a complaint by the victim. ...”
“Anyone who makes any statement or allegation in public concerning a particular person which, if true, would render that person liable to a criminal, administrative or disciplinary penalty or expose them to public opprobrium, shall be liable to imprisonment for between three months and one year or to a fine.”
“Evidence of the truth of such a statement or allegation is admissible where the statement or allegation was made in order to protect a legitimate interest. Where the truth of the statement or allegation is proved, no offence of insult or defamation will have been committed.”
OFFENCES AGAINST AUTHORITY
“Public disparagement of or threats against a person belonging to one of the categories referred to in Article 160 in connection with their activity and of a nature to undermine authority shall be punished by imprisonment for between six months and five years. ...”
“Insults, defamation or threats uttered directly or by direct means of communication against a civil servant holding an office which involves the exercise of State authority in the performance of his duties or on account of acts carried out in the performance of his duties shall be punished by imprisonment for between three months and four years.
Assault or any other act of violence together with infliction of bodily harm on the persons referred to in the first paragraph during the performance of their duties or on account of acts carried out in the performance of their duties shall be punished by imprisonment for between six months and seven years and, in the case of serious bodily harm, by imprisonment for between three and twelve years.
Where the offences referred to in the preceding paragraphs have been committed against a member of the national legal service, police officer, gendarme or other member of the military, the maximum sentence shall be increased by three years”.


ITEMID: 001-77666
LANGUAGEISOCODE: ENG
RESPONDENT: POL
BRANCH: CHAMBER
DATE: 2006
DOCNAME: CASE OF ORZECHOWSKI v. POLAND
IMPORTANCE: 4
CONCLUSION: Violation of Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award
JUDGES: Nicolas Bratza
TEXT: 4. The applicant was born in 1946 and lives in Częstochowa, Poland.
5. On 30 December 1991 the applicant lodged an application with the Minister of Agriculture (Minister Rolnictwa i Gospodarki Żywnościowej), seeking annulment of the Minister’s decision of 3 February 1950 to expropriate the property of the applicant’s father.
6. The applicant complained several times to the Minister and the Ombudsman about lack of progress in the proceedings.
7. On 22 June 1995 the Minister informed the applicant that his application would be examined in the fourth quarter of 1995.
8. On 6 April 2001 the applicant lodged a complaint about the Minister’s inactivity with the Supreme Administrative Court (Naczelny Sąd Administracyjny).
9. On 15 January 2002 the Supreme Administrative Court ordered the Minister to deal with the applicant’s case within 2 months.
10. The Minister failed to do so and, on 16 April 2002, the applicant lodged a further complaint with the Supreme Administrative Court about the Minister’s inactivity. The court examined his complaint on 18 February 2003.
11. In the meantime, on 19 April 2002, the Minister stayed the proceedings. He found that it was necessary to obtain a geodetic expert opinion. The Minister upheld his decision on 10 July 2002.
12. On 10 March 2004, upon the applicant’s request, the Warsaw Regional Administrative Court (Wojewódzki Sąd Administracyjny) quashed both decisions as inadmissible in law.
13. On 27 September 2004 the Minister of Agriculture gave a decision. He found that the decision of 3 February 1950 was not in accordance with law. However, he refused to restore the property to the applicant.
14. On 18 October 2004 the applicant made an application to the Minister for the matter to be reconsidered (wniosek o ponowne rozpatrzenie sprawy).
15. The Minister upheld his original decision on 6 April 2005.
On 28 April 2005 the applicant lodged an application for compensation for the loss of his estate.
16. The Minister granted the request on 3 October 2005. The applicant was awarded 146,996 Polish zlotys in compensation.
17. On 1 October 1995, the Law of 11 May 1995 on the Supreme Administrative Court (“the 1995 Act”) entered into force. Under section 17 of the 1995 Act the Supreme Administrative Court was competent to examine complaints about inactivity on the part of an authority obliged to issue an administrative decision or to carry out enforcement proceedings.
18. Section 26 of the Act provided:
“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 law.”
19. Pursuant to section 30 of the 1995 Act, the decision of the Supreme Administrative Court ordering an authority to put an end to its inactivity was legally binding on the authority concerned. If the authority had not complied with the decision, the court might, under section 31, impose a fine on it and might itself give a ruling on the right or obligation in question.
20. The 1995 Act was repealed and replaced by the Law of 30 August 2002 on Proceedings before Administrative Courts (“the 2002 Act”) which entered into force on 1 January 2004. Section 3 § 2 of the 2002 Act, contains provisions analogous to section 17 of the 1995 Act. A party to administrative proceedings can lodge a complaint about inactivity on the part of an authority obliged to issue an administrative decision or to carry out enforcement proceedings with an administrative court. Under section 149, if a complaint is well-founded, an administrative court shall oblige the authority concerned to issue a decision, or to perform a specific act, or to confirm, declare, or recognise a right or obligation provided for by law.
21. The relevant domestic law provisions are set out in the Court’s judgment in the case of Krasuski v. Poland, no. 61444/00, §§ 34-46, ECHR 2005–V (extracts).
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-58826
LANGUAGEISOCODE: ENG
RESPONDENT: AUT
BRANCH: CHAMBER
DATE: 2000
DOCNAME: CASE OF EISENSTECKEN v. AUSTRIA
IMPORTANCE: 1
CONCLUSION: Violation of Art. 6-1;Pecuniary damage - claim dismissed;Costs and expenses partial award - Convention proceedings
TEXT: 6. On 7 March 1985 the applicant concluded with E. a contract for property to vest in a third person on the owner's death (Übergabevertrag auf den Todesfall) under which the applicant would receive the farming estate of E. situated in Mils after the latter's death.
7. On 15 December 1992, after the death of E., the applicant filed a request with the local Real Property Transactions Authority for Mils (Grundverkehrsbehörde) at the office of the Innsbruck District Administration (Bezirkshauptmannschaft) for the approval of the contract and submitted that he intended to work the land himself. On 23 July 1993 the Real Property Transactions Authority approved the contract concluded with E.
8. On 2 August 1993 the Real Estate Transactions Officer (Landesgrundverkehrsreferent) at the Office of the Regional Government (Amt der Landesregierung) for Tyrol exercised his right of appeal to the Regional Real Property Transactions Authority (Landesgrund-verkehrsbehörde). On 10 August 1993 the administrator of the deceased's estate also appealed.
9. On 14 October 1993 the applicant requested an oral hearing. On 2 December 1993 the Regional Real Property Transactions Authority held a hearing in camera.
10. On 7 July 1993 a new Tyrol Real Property Transactions Act was adopted, which came into force on 1 January 1994. According to this Act the name and composition of the Regional Real Property Transactions Authority were changed.
11. On 28 February 1994 the newly established Regional Real Property Transactions Commission (Landes-Grundverkehrskommission) granted the appeal of the Real Estate Transactions Officer and refused to approve the contract with E. As regards the appeal of the administrator of the deceased's estate, the Regional Real Property Transactions Commission found that he lacked legal standing.
12. On 13 April 1994 the applicant lodged a complaint with the Constitutional Court (Verfassungsgerichtshof). He complained, inter alia, that the Regional Real Property Transactions Commission had adopted its decision without offering him the opportunity of presenting his arguments in the course of an oral hearing before this body.
13. On 27 February 1995 the Constitutional Court dismissed the applicant's complaint. Referring to its own case-law, the court found that an oral hearing in the present case was not obligatory.
14. Under the Tyrol Real Property Transactions Act 1983 (Grundverkehrsgesetz), a contract concerning the transfer of ownership of real property was subject to approval by the real property transactions authorities if agricultural and forestry land was involved or if the purchaser did not possess Austrian nationality (sections 1 and 3). If approval was withheld, the acquisition was null and void (section 16(1)).
15. On 1 January 1994 a new Real Property Transactions Act (dated 1993) came into force. According to the 1983 Act, the authority of second and final instance had been the Regional Real Property Transactions Authority (Landesgrundverkehrsbehörde). In the 1993 Act the Regional Real Property Transactions Authority was replaced by the Regional Real Property Transactions Commission (Landes-Grundverkehrskommission).
16. The procedure before the real property transactions authorities is governed by the General Administrative Procedure Act 1950 (Allgemeines Verwaltungsverfahrensgesetz). Section 40(1) of this Act deals with oral hearings and provides as follows:
“Oral hearings shall be held in the presence of all known parties and the necessary witnesses and experts. If oral hearings have to be combined with an inspection of the location, they should, if possible, be held there or otherwise at the seat of the authority or another location which in the circumstances appears most suitable.”
17. It is the consistent practice of administrative authorities to hold oral hearings in camera unless the law provides otherwise, as it is commonly understood that the principle of publicity does not extend to administrative proceedings (see Walter/Mayer, Grundriss des österreichischen Verwaltungsverfahrensrechts, 6th edition, Vienna 1995, pp. 114-15).
18. Article 90 § 1 of the Federal Constitution provides:
“Hearings by trial courts in civil and criminal cases shall be oral and public. Exceptions may be prescribed by law.”
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-105196
LANGUAGEISOCODE: ENG
RESPONDENT: CZE
BRANCH: ADMISSIBILITY
DATE: 2011
DOCNAME: PASTYŘÍK v. THE CZECH REPUBLIC
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Angelika Nußberger;Dean Spielmann;Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger
TEXT: The applicant, Mr Vladimír Pastyřík, is a Czech national who was born in 1972 and lives in Plzeň. He was represented before the Court by Mr K. Hrádela, a lawyer practising in Prague.
In 2003 the police started to investigate a scheme to influence the outcome of matches of the Czech national football league by means of bribery. The public was interested in this investigation on account of the popularity of the sport in the country, where matches of the national league are followed closely. The press reported on the investigation regularly. As part of the investigation, several telephones were tapped.
On 19 February 2004 a judge at the Brno Municipal Court (městský soud) ordered that the telephone of a certain I.H., who was president of a football club, be tapped from 19 February to 19 May 2004. That club was at that time the last but one in the national league rankings and thus faced demotion to a lower division for the next season. I.M. was suspected of bribing referees to influence the outcome of matches played by his team.
On 27 February 2004, while I.H.’s telephone was tapped, the police intercepted a call with the applicant, a football referee at that time. The conversation included the following exchange:
“I.H.: “We are fucked, really, it couldn’t be worse, dude. We have one last chance to reverse it somehow. We will see, the guys on the field must of course, because we play like shit. I would like to ask you a favour, should it turn out, I do not know, you were here last year, weren’t you?
Applicant: “Yes, I was there, I was there.
I.H.: “1:0 with Zlín in the last minute, dude, I’ll take that. That would be great.”
Applicant: “Sure.”
I.H. “Keep your favour and I will of course arrange some stuff with Jarda, I mean, what it takes to keep the favour, and there will be three dimes in it for you.
Applicant: “Sure, see you on Sunday!”
I.H.: “O.K. bye.
Applicant: “Bye!”
In Czech:
“I.H.: “Úplně v prdeli, fakt už to horší nemůže bejt vole, máme poslední šanci ještě to nějak zvrátit, uvidíme. Musejí samozřejmě kluci na hřišti hlavně, protože hrajeme hovno. Chci tě poprosit, kdyby to dopadlo, jako nevím, ty jsi tu byl nějak před rokem asi viď?
Applicant: “No byl jsem tam, byl jsem tam.
I.H.: “Se Zlínem jedna nula v poslední minutě, ty vole, tak to beru, to by bylo super.”
Applicant: “Jasně.”
I.H.: “Zachovej přízeň a já samozřejmě s Jardou domluvím některý věci, jako co je potřeba, ať se zachová přízeň a třicetník je tam pro tebe no”
Applicant: “Jasně, uvidíme se v neděli.”
I.H.: „Dobrý, ahoj!“
Applicant: „Ahoj!“
The match concerned was won by I.H.’s team 2:0.
On 30 July 2004 the police charged the applicant with accepting a bribe.
On 19 September 2005 the Prague 3 District Court (obvodní soud) found the applicant guilty as charged. It found it established that the applicant had accepted payment of 30,000 Czech korunas (CZK) (1,200 euros (EUR)) for being favourable to I.H.’s team and thus influencing the results of the match. The court sentenced him to eight months’ imprisonment suspended for two years. The recording of the telephone conversation, which was played at the hearing, was the main evidence against the applicant. Other testimonies were heard and other evidence, which was mostly suggested by the applicant, adduced. The court did not admit other additional evidence relating to the quality of the telephone signal at the applicant’s home, considering it unnecessary.
The applicant appealed, arguing, inter alia, that the tapping had been illegal and thus could not be used as evidence, that “three dimes” had been meant literally and thus only the equivalent of approximately EUR 0.01 had been at stake, that by “jasně” in the conversation he had not meant “sure” but “clearly” as in “I can’t hear you clearly” and that none of that had constituted a crime.
On 4 January 2006 the Prague Municipal Court upheld the first-instance judgment, finding that the telephone tapping had been legal and endorsing the conclusions of the District Court in other respects.
The applicant appealed on points of law, reiterating his arguments. On 9 August 2006 the Supreme Court (Nejvyšší soud) dismissed his appeal as manifestly ill-founded.
The applicant lodged a constitutional appeal (ústavní stížnost) in which he complained of violations of his right to a fair trial and right to respect for his private life. He complained, in particular, that the telephone tapping had been illegal and the recording should not have been admitted as evidence, that the courts’ judgments had been insufficiently reasoned that their findings had been wrong, that the act he had committed had not constituted a criminal offence and that the courts had refused to admit evidence suggested by him.
On 2 March 2009 the Constitutional Court (Ústavní soud) dismissed the applicant’s constitutional appeal as manifestly ill-founded. Regarding his claim as to the illegality of the telephone tapping, it referred to its earlier decision in the case of another accused in the bribery scheme. In that case the court found that the telephone tapping had been legal, because, inter alia, the investigation had been conducted in the context of criminal proceedings in respect of an intentional crime which fell to be prosecuted under an international treaty, namely, the Council of Europe Civil Law Convention on Corruption.
The judge at the Municipal Court who had ordered the tapping, who had not subsequently been in any way involved in the criminal proceedings brought against the applicant, testified as a witness at the trial of another accused in the bribery scheme, where he made a negative statement about the character of the accused.
Article 88 regulated telephone tapping:
(1) In the context of criminal proceedings for a particularly serious intentional crime or any other intentional crime that falls to be prosecuted under an international treaty, the presiding judge, and at the pre-trial stage a judge on a proposal of a prosecutor, may order the interception and recording of telecommunications traffic, if it can be reasonably assumed that it will reveal facts relevant to the criminal proceedings. The interception and recording of telecommunications traffic between the lawyer and the accused is impermissible. If the police, while intercepting and recording telecommunications traffic, discover that the accused is communicating with his lawyer, they must stop the interception immediately, destroy the recording and not use the information learned in this context in any way.
(2) A warrant for the interception and recording of telecommunications traffic shall be issued in writing and shall be reasoned. It must also state the period during which the interception and recording will be carried out, which may not be longer than six months. A judge may extend this period for another six months. The judge shall send a copy of the warrant to a prosecutor without delay. The police shall undertake the interception and recording of telecommunications traffic for all the prosecuting authorities.
...
(4) If a recording of telecommunications traffic is to be used as evidence, it is necessary to accompany it with a report, giving the place, time, manner and contents of the recording, as well as the person making the recording. ... the recording can be used as evidence in a criminal case other than the one for which the telecommunications traffic was intercepted and recorded only if that case also concerns a criminal offence of the nature specified in paragraph 1...
(5) If the interception and recording has not revealed any facts relevant to the criminal proceedings, the recording must be destroyed in the prescribed manner.


ITEMID: 001-59221
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: CHAMBER
DATE: 2001
DOCNAME: CASES OF ECER AND ZEYREK v. TURKEY
IMPORTANCE: 1
CONCLUSION: Violation of Art. 7-1;Non-pecuniary damage - financial award;Costs and expenses partial award
JUDGES: Elisabeth Palm;Gaukur Jörundsson
TEXT: 8. On 2 September 1993 security forces from the Şırnak central gendarmerie command apprehended the applicants. An arrest protocol of the same day stated that the applicants had been arrested on the grounds that they were wanted for the offences of aiding and sheltering members of the PKK (Workers’ Party of Kurdistan) terrorist organisation and acting as couriers in the organisation as well as supplying logistic support to the organisation. The applicants were then placed in custody.
9. On 22 September 1993 two officers interrogated the applicants at the Şırnak central gendarmerie command. During their interrogation the applicants both confessed that they had been involved in the PKK since 1988 and that they had supplied food and money to PKK militants. The applicant Abdülaziz Ecer stated that he had placed his son, Mustafa Ecer, at the disposal of the PKK rather than paying them a levy. The applicant Mehmet Zeyrek told the officers that he had been carrying provisions on mules to PKK militants and that he had last carried a battery for them in August 1993.
10. The applicants were then confronted with a witness, İkram Yamaner, who had been arrested on charges of aiding and sheltering members of the PKK between April 1990 and July 1992. İkram Yamaner identified the applicants and stated that they had been supplying food and clothes to members of the PKK when he was in the organisation.
11. On 23 September 1993 the Şırnak public prosecutor questioned the applicants in relation to their activities in the PKK. He first informed the applicants of the nature and cause of the accusations against them and then read out the statements they had made to the officers during their detention in custody. The applicants denied the accuracy of the statements read out by the public prosecutor. They alleged that they had no connection with the PKK and that they had never supplied provisions to members of the organisation. Abdülaziz Ecer asserted that his son, Mustafa Ecer, had been abducted by the PKK and had been forced to join the organisation, contrary to what was written down by the gendarme officers during his questioning at the Şırnak gendarmerie command.
On the same day, 23 September 1993, the applicants were brought before the Şırnak Magistrates’ Court (sulh ceza mahkemesi). Before the court the applicants denied their involvement in the PKK and claimed that they were innocent of the charges. The court ordered the applicants’ detention on remand.
12. On 24 September 1993 the Şırnak public prosecutor issued a decision of non-jurisdiction and sent the investigation file to the Principal Public Prosecutor’s Office at the Diyarbakır National Security Court.
13. On 19 October 1993 the Principal Public Prosecutor filed an indictment with the Diyarbakır National Security Court accusing the applicants of having assisted and given shelter to members of the PKK between 1988 and 1989. The public prosecutor alleged that the applicants had supplied food to members of the armed gang in a rural area. He further asserted that the applicant Abdülaziz Ecer had stored food in his shop for members of the gang and that he had helped and sheltered them by means of his contacts with his son, currently an active militant in the gang. The public prosecutor relied on the applicants’ confessions at the Şırnak central gendarmerie command and the evidence given by the witness İkram Yamaner, as well as the documents contained in the investigation file.
The public prosecutor requested that the applicants be punished in accordance with Article 169 of the Turkish Criminal Code and section 5 of the Prevention of Terrorism Act (Law no. 3713 of 12 April 1991, “the 1991 Act”; see paragraph 19 below).
14. In the proceedings before the Diyarbakır National Security Court the applicants denied the statements they had made during their detention in custody. They both alleged that the gendarme officers had prepared those statements and that they had signed without reading them.
The applicants further maintained that they did not know of İkram Yamaner, with whom they had allegedly been confronted, since they had been kept blindfolded during their questioning while in custody. They asked the court to rule that they were innocent of the charges.
15. On 12 May 1994 the Diyarbakır National Security Court convicted the applicants on account of their assistance to the PKK in 1988 and 1989, sentenced them to three years and nine months’ imprisonment and debarred them from public service for three years. In assessing the penalty to be imposed, the court first found that a sentence of three years’ imprisonment would be appropriate under Article 169 of the Turkish Criminal Code; it then applied section 5 of the 1991 Act, according to which this sentence had to be increased by half, that is, to four years and six months’ imprisonment; finally the court applied Article 59 of the Turkish Criminal Code, thereby reducing the sentence by one-sixth and thus decreasing the overall length to three years and nine months’ imprisonment. The court held, in particular:
“Offence: Aiding and sheltering members of the illegal PKK organisation
Date of the offence: 1988 and 1989
...
Assessment of the evidence:
1. The defendant Mehmet Zeyrek
In his statements to the gendarmes, he said that he had been influenced by the propaganda spread by members of the PKK during their frequent visits to [his] village in 1989. Having seen that the organisation worked for them he had begun aiding [the PKK]. He had given his relative Behiye Zeyrek to the organisation rather than paying them a levy. He knew some of the members of the organisation with the code names Hamit, Mahmut, Sorej, Rojger and Ahmet. He met them in the Besta region, at the Kaniye Rengin point, at the Zirvi stream and on the outskirts of the Elma mountain. He knew a few of the warriors. [He stated further] that, on the instructions of the organisation and the instructions he had received from leaders of the groups during his meetings, he had carried provisions to them on his mules. Nobody had helped him to join the organisation. Members of the organisation had spread propaganda [in favour of the PKK] in the past, but they did not do it later as everybody knew the organisation. He also stated that some time before he had carried a battery and some provisions to a militant with the code name Hamza at the coalmine across from the Milli [gendarmerie] station.
In his statements to the public prosecutor, he denied the [accuracy of] his statements to the gendarmes; he claimed that he did not know a person with the code name Ahmet, that the latter had not told the truth about him but had slandered him. He [maintained] that he had not carried provisions to [members of] the organisation. He denied that he had placed Behiye Zeyrek at the disposal of the PKK rather than paying them a levy. He alleged that he did not know of her whereabouts.
In his statements to the Şırnak Magistrates’ Court, he submitted that he had never supplied aid to the PKK terrorist organisation, that he had never carried provisions to [PKK militants], that he had never met members of the [PKK]. [He claimed] that he is innocent of the charges.
In his statements to our court, the defendant denied the charges of aiding and sheltering [members of] the PKK. He alleged that he did not know of İkram Yamaner who was mentioned in the bill of indictment. He claimed that he is innocent of the charges.
According to the identification and confrontation protocol contained in dossier no. 9, when the defendant Mehmet Zeyrek was shown to İkram Yamaner with the code name Ahmet, the latter stated that he knew of Mehmet Zeyrek. He submitted that [Mehmet Zeyrek] used to come to see members of the organisation with the code names Erdal, Mehmet, Hamit and Serxabun and that he had often brought provisions on ten to fifteen mules to the Besta region, the Elma mountain, the Zirvi stream and to the Keniya Rengin point. [The witness] further stated that he had shown [to security forces] the places where these provisions were stored. He claimed that the defendant [Mehmet Zeyrek] was an important militant in the organisation.
When İkram Yamaner gave evidence as a witness before our court, he stated that the defendant had met senior members of the organisation, that he was a permanent member of the organisation and that he had frequently been in contact with [a militant] with the code name Erdal. [He further stated] that the defendant had supplied provisions such as food, drinks and weapons to the organisation.
It was established that the defendant had supplied provisions to members of the armed organisation who used to come to his village and that he had further supplied them provisions in rural areas. These acts of the defendant constitute the offence of knowingly aiding and sheltering members of an armed gang, [namely] the illegal PKK terrorist organisation. The court therefore concludes that there exist the actus reus and mens rea elements of the offence. His defence in this respect was rejected.
The defendant’s good conduct during the hearing was considered to be a mitigating circumstance.
2. The defendant Abdülaziz Ecer
In his statements to the gendarmes he said that he had joined the PKK in early 1988 following the advice given by those in charge of the Besta region with the code names Amid and Mahmut during their visit to his village. He first placed his son Mustafa Ecer at the disposal of the organisation in order to help it. His son is currently an active armed militant in the organisation. He worked as a shopkeeper in the Geçitboyu village of the province of Şırnak and later on he stopped working. Apart from his son with the code name Amid, he knew [militants] with the code names Mahmut, Sorej and Ahmet as well as Aydın and Kalender. Since he worked as a shopkeeper, he allowed members of the organisation to take as many provisions as they wanted. Sometimes he was given money by members of the organisation with which he bought provisions such as flour, sugar and butter. He kept these provisions in his shop until he delivered them [to the militants]. He supplied aid to the organisation on the instructions of an armed militant in the organisation from his village with the code name Cafer Demir. He gave packs of cigarettes to a member of the organisation with the code name Ahmet. [The defendant] further stated that he had been given money by a member of the organisation with the code name Mahmut who wanted him to buy 1000 bags of flour. He delivered [to the organisation] thirty mule-loads of provisions such as flour, butter, sugar, lentils, socks and peşmerge clothing.
In his statements to the public prosecutor, he claimed that he had not helped members of the organisation and that he had not supplied any materials to the organisation. He alleged that he did not know of İkram Yamaner who had the code name Ahmet. He denied the latter’s allegations and submitted that he had no links with the organisation.
In his statements to the Şırnak Magistrates’ Court, [the defendant] alleged that he had not given aid to the PKK terrorist organisation, that he had not bought provisions for members of the organisation and that he had not bought flour for them either. He denied the charges against him.
In his oral evidence before our court, [the defendant] denied the charges brought against him. He submitted that Mustafa Ecer, who was mentioned in the bill of indictment, was his son. He had not seen him for five years. He heard [through some people] that his son had died. He claimed that he had not given aid to members of the PKK by means of sheltering them or supplying them with provisions.
According to the identification and confrontation protocol contained in dossier no. 9, when the defendant Abdülaziz Ecer was shown to İkram Yamaner with the code name Ahmet, the latter stated that he knew of Abdülaziz Ecer and that he had visited him at his home [while] he was working as a shopkeeper in the village. The team commander with the code name Mahmut gave some money to Abdülaziz Ecer and asked him to buy 1000 bags of flour. The defendant used a room at the back of his house and opposite his shop as a depot. The defendant supplied provisions to the organisation and brought 600 pairs of shoes with the brand name of Mekap. The defendant’s son with the code name Erdal is an active militant in the organisation whose real name he did not know. İkram Yamaner further stated that he had been a team commander and that the defendant had brought them twenty bags of sugar, flour, butter and lentils and thirty mule-loads of provisions.
İkram Yamaner, in his capacity as a witness before our court, stated that the defendant had supplied provisions such as food, drink and arms to the organisation. He further stated that the defendant was an active militant in the organisation and that he had frequently seen the defendant while he was in the organisation.
It was established that the defendant had supplied provisions to members of the armed organisation who used to come to his village, the village of Geçitkaya, and that he had further supplied them provisions in rural areas. Further, the defendant stored provisions in his shop for members of the gang. He met members of the gang with the help of his son, Mustafa Ecer, who is currently in the organisation and supplied them with the materials they needed. By these acts, the defendant is guilty of the offence of knowingly aiding and sheltering members of an armed gang, [namely] the illegal PKK terrorist organisation. The court therefore concludes that there exist the actus reus and mens rea elements of the offence. His defence in this respect was rejected.
The defendant’s good conduct during the hearing was considered to be a mitigating circumstance.”
16. On 11 July 1994 the applicants lodged an appeal with the Court of Cassation, challenging the judgment of the Diyarbakır National Security Court. In particular, they alleged that the National Security Court had violated the principle of non-retrospective application of the criminal law since it had applied section 5 of the 1991 Act to increase the basic penalty under Article 169 of the Turkish Criminal Code by half. The applicants submitted that they had been convicted of acts committed in 1988 and 1989 as indicated in the bill of indictment. They maintained that the witness, İkram Yamaner, who testified against them and who had been apprehended in 1991, had said that 1988 and 1989 were the dates of the offences. The applicants finally argued that the court should not have admitted the statements made to the gendarmes as evidence since they had retracted them, asserting that they had been extracted under duress.
17. On 21 February 1995 the Court of Cassation rejected the appeal. It upheld the cogency of the National Security Court’s reasoning and its assessment of the evidence. The Court of Cassation did not deal specifically with the applicants’ complaint relating to the retroactive application of the 1991 Act to their case.
18. On 22 May 1995 the applicants applied to the Principal Public Prosecutor’s Office at the Court of Cassation requesting the rectification of the decision of 21 February 1995. On 19 June 1995 their request was dismissed by the Principal Public Prosecutor on the grounds that the Court of Cassation had examined all the points raised by the applicants and there was no other reason requiring the rectification of the decision.
19. Article 169 of the Turkish Criminal Code provides:
“Any person who, knowing that such an armed gang or organisation is illegal, assists it, harbours its members, provides it with food, weapons and ammunition or clothes or facilitates its operations in any manner whatsoever shall be sentenced to not less than three and not more than five years’ imprisonment ...”
According to the Government, the act of assisting and giving shelter to members of an illegal organisation has the character of continuity and the offence is a continuing one.
20. Under section 4 of the 1991 Act, the offence defined in Article 169 of the Criminal Code is classified in the category of “acts committed to further the purposes of terrorism”.
Pursuant to section 5 of the 1991 Act, the penalty laid down in the Criminal Code as punishment for the offence defined in section 4 of the Act is increased by one half.
21. Article 150 of the Turkish Code of Criminal Procedure provides:
“The punishment resulting from an investigation and conviction is determined by the crimes set forth in the indictment and can concern only those persons named in the indictment.”
VIOLATED_ARTICLES: 7
VIOLATED_PARAGRAPHS: 7-1


ITEMID: 001-111585
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: CHAMBER
DATE: 2012
DOCNAME: CASE OF MUSTAFA TAŞTAN v. TURKEY
IMPORTANCE: 4
CONCLUSION: Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);Violation of Article 3 - Prohibition of torture (Article 3 - Effective investigation) (Procedural aspect)
JUDGES: András Sajó;Françoise Tulkens;Guido Raimondi;Isabelle Berro-Lefèvre
TEXT: 5. The applicant was born in 1966 and lives in Kırşehir.
6. On 29 August 1999 the applicant was arrested and taken to the Ankara Security Headquarters on suspicion of carrying a gun without the required licence. It was also established that he was being sought for on suspicion of establishing a profit-making criminal organisation.
7. The following day, 30 August 1999 the applicant was brought before the Ankara public prosecutor. The public prosecutor ordered his release after having taken his statements.
8. However, on the same day, certain police officers brought the applicant back to the Security Headquarters. Immediately after that event, his lawyer filed a complaint with the Ankara public prosecutor, claiming that the applicant had been forcibly taken by the police officers despite the public prosecutor’s decision and had been beaten. She indicated that she had been denied entry into the Headquarters.
9. The applicant claimed to have been released the next day.
10. Following his release, the applicant went to a private clinic where he was examined by a doctor who noted that there existed several oedemas and bruises on various parts of the applicant’s body, caused by blows from a hard object. The doctor specified the places of the said oedemas and bruises as the right frontal area of the face, right cheekbone, left shoulder, left forearm, left leg and left gluteal area. He also maintained that there were cuts in the oral cavity caused by dental pressure. The doctor noted the date of the report as 30 August 1999 but did not write his name.
11. On an unspecified date the applicant filed a complaint against two police officers, alleging that they had inflicted ill-treatment on him.
12. On 13 January 2000 the Ankara Directorate of Security submitted an information note to the public prosecutor, stating that the applicant had gone to the Security Headquarters on 30 August 1999 of his own will and had stayed there for a brief period of thirty minutes. The note indicated that he had not been officially in custody during that period and had been allowed to see his lawyer. Subsequently, on 17 February 2000, the Directorate of Security further informed the public prosecutor that no record of the applicant’s meeting with his lawyer had been made.
13. On 25 February 2000 the applicant maintained before the Ankara public prosecutor that he had been forced to stay at the Security Headquarters for one day following his release by the public prosecutor and had been denied access to his lawyer during that period. He reiterated his allegations of ill-treatment, arguing that two police officers had put him in a barrel full of cold water and had beaten him the whole day. He also submitted a medical report from a private clinic, which he had obtained following his release.
14. On 28 March 2000, upon a request from the Ankara public prosecutor to that effect, the Ankara Forensics Medicine Institute issued a final report, indicating the findings of the initial medical report and concluding that those findings would keep the applicant from routine activities for a period of seven days.
15. The two police officers accused by the applicant of ill-treatment gave their statements before the Ankara public prosecutor on 3 April and 9 May 2000 respectively. They maintained, inter alia, that they had not ill-treated the applicant in any way and that the applicant had only stayed at the Department for fifteen minutes on the day the alleged events took place.
16. On 11 April 2000 the police informed the public prosecutor that the owner of the private clinic, who was a medical doctor, had stated that the initial medical report had not been issued in his clinic and that his name had been fraudulently used on it.
17. Subsequently, on 15 May 2000 the Ankara public prosecutor issued a decision not to prosecute the two police officers as he found that there was no evidence except the applicant’s allegations to prove that they had committed the alleged acts.
1. Criminal proceedings against the applicant for forging an official document
18. On 15 May 2000, the public prosecutor instigated criminal proceedings against the applicant before the 21st Chamber of the Ankara Criminal Court of General Jurisdiction for forging an official document.
19. During the proceedings, the owner of the clinic stated before the court that he had actually examined the applicant and drafted the medical report in question.
20. On 13 February 2001, upon a request of the court, an expert submitted a report, concluding that the handwriting in the medical report in question did not show the same characteristics as that of the owner of the clinic.
21. Nevertheless, on 24 January 2002 the Gendarmerie Command submitted another expert report to the court, confirming that the handwriting on the medical report belonged to the owner of the clinic.
22. Having regard to the latter expert report and the doctor’s statements, on 19 February 2002 the court acquitted the applicant of the charge against him.
2. Criminal proceedings against the police officers
23. On 30 December 2003 the Ankara public prosecutor filed an indictment with the 19th Chamber of the Ankara Criminal Court of General Jurisdiction, this time accusing the two police officers of illegal deprivation of liberty and ill-treatment pursuant to Article 181 of the former Penal Code (Law no. 765).
24. The applicant’s lawyer gave her statements before the court on 24 May 2004. She indicated that the applicant had been dragged by certain police officers following his release by the Ankara public prosecutor and that she had not witnessed him being beaten at the Security Headquarters, where he must have stayed for approximately one hour.
25. On 5 July 2004 the owner of the private clinic, where the applicant had obtained the medical report, stated before the court that he had not examined the applicant. At the following hearing on 20 July 2004 another doctor, K.İ.Z., maintained that at the time of the events he had been working at the said clinic. He stated that he was the one who had examined the applicant and drawn up a medical report about his condition.
26. At a hearing on 20 December 2004 the 19th Chamber of the Ankara Criminal Court of General Jurisdiction heard a certain S.Z.A., the chief officer who had conducted the administrative investigation against the two police officers. According to S.Z.A.’s statements, although there had been two conflicting expert reports about the medical report during the proceedings before the 21st Chamber, later on, the Gendarmerie Command had conducted another analysis and found out that the handwriting actually corresponded to that of K.İ.Z.
27. The applicant joined the criminal proceedings against the officers as a civil party (müdahil) on 7 November 2005.
28. On 6 March 2006 the first-instance court acquitted the police officers of ill-treatment. The court noted that the medical report issued immediately after the impugned events could not be considered valid as K.İ.Z., who had admitted to having examined the applicant in the clinic, had not had the work permit to draw up such a report. It maintained moreover that the report issued by the Ankara Forensics Medicine Institute, which relied wholly on the initial report, was invalid as well. The court hence concluded that there was insufficient evidence to convict the accused police officers of inflicting ill-treatment on the applicant. It sentenced the officers to ten months’ imprisonment for illegal deprivation of liberty and suspended that sentence.
29. On 20 March 2007 the Court of Cassation discontinued the case, finding that it was time-barred pursuant to Sections 102 and 104 of the former Penal Code (Law no. 765) and Section 223 of the Code on Criminal Procedure (Law no. 5271).
3. Disciplinary proceedings against the police officers
30. Meanwhile, following the Ankara public prosecutor’s indictment of the two police officers, on 13 January 2004 the Ankara Governorship assigned a chief officer to conduct a disciplinary investigation into the allegations of illegal deprivation of liberty and ill-treatment concerning the officers.
31. During the disciplinary proceedings, on 13 April 2004 the Gendarmerie Command submitted a new expert report, this time concluding that the handwriting on the medical report issued in respect of the applicant actually belonged to K.İ.Z.
32. On 19 September 2004 the Central Disciplinary Board of the Directorate of Security held that in the absence of any valid evidence, there was no ground to take disciplinary measures against the two police officers. The Board further struck the case out as the statutory time-limit for the alleged offences had expired.
33. The former Penal Code (Law no. 765) made it a criminal offence to deprive an individual unlawfully of his or her liberty (Article 179 generally, Article 181 in respect of civil servants).
34. The second paragraph of Article 181 regulated an aggravated sentence for cases where the accused civil servants threatened or inflicted ill-treatment on the individual concerned.
VIOLATED_ARTICLES: 3


ITEMID: 001-102203
LANGUAGEISOCODE: ENG
RESPONDENT: DEU
BRANCH: ADMISSIBILITY
DATE: 2010
DOCNAME: KRIEGISCH v. GERMANY
IMPORTANCE: 3
CONCLUSION: Inadmissible
JUDGES: Ganna Yudkivska;Isabelle Berro-Lefèvre;Mirjana Lazarova Trajkovska;Peer Lorenzen;Rait Maruste;Renate Jaeger;Zdravka Kalaydjieva
TEXT: The applicant, Mr Klaus-Peter Kriegisch, is a German national who was born in 1967 and lives in Heilbronn. He is represented before the Court by Ms Sylvia Schwaben, a lawyer practising in Pfinztal. The respondent Government were represented by their Agent, Mrs A. Wittling-Vogel, Ministerialdirigentin, of the Federal Ministry of Justice.
The facts of the case, as submitted by the parties, may be summarised as follows.
The applicant was arrested on 9 December 2003 on suspicion of having bought cocaine from H. and of having subsequently sold it to unknown consumers. H. had previously acquired the drugs in the Netherlands where he had travelled for this purpose in the company of B. and S.
In the course of preliminary investigations against the drug supplier H., B. and S., who had both been involved only in the importing of the drugs by H. but not in the subsequent sale to the applicant, were questioned by police officer P. and gave, inter alia, hearsay evidence about statements made by H. and other circumstances indicating that H. had subsequently sold part of the imported drugs to the applicant.
On 14 May 2004 a chamber of Mosbach Regional Court (Landgericht), with judge G. presiding, convicted H. of drug trafficking, sentenced him to eleven years’ imprisonment and ordered him to undergo treatment in a detoxification centre. The judgment was primarily based on a full confession made by H. following an unrecorded plea bargain reached with the court providing for mitigation of H.’s expected prison sentence in return for a confession. The veracity of the confession was confirmed by the testimony given by police officer P. regarding the statements made by B. and S. during previous police questionings.
The judgment enumerates the several clients to which H. had sold drugs on various occasions and among them mentions a person called “Jürgen Kriegisch”, to whom he had sold cocaine on three occasions. The related passages of the judgment establishing the facts of the case which refer to the said person read as follows:
“... he [H.]... brought the narcotics to Wertheim and sold them there as follows: - to Jürgen Kriegisch at least 150 grams of cocaine at a price of 40 euros per gram; - to ...; ... ... he [H.]... brought the narcotics to Wertheim and sold them there as follows: - to Jürgen Kriegisch at the day of its acquisition at least 750 grams but at most 1,125 kilograms of cocaine at a price of at least 30 and at most 40 euros per gram; - to ...; ... He [H.] brought the narcotics to Wertheim. From the quantity he had purchased in this manner, he sold a gross amount of 1.5 kilograms of cocaine directly following his return to Jürgen Kriegisch, who is being prosecuted separately, at a price of at least 30 and at most 40 euros per gram and to ...”
On 6 May 2004 the main hearing in three cases against the applicant on charges of drug trafficking was opened before a chamber of Mosbach Regional Court presided over by the same judge, G., who had previously presided over the trial against H. The applicant was represented by counsel throughout the proceedings.
On 22 July 2004 the Regional Court heard evidence from, inter alia, police officer P., regarding the statements made by S. and B. when questioned earlier by the police. H. refused to give evidence regarding the case as such and, on a request by the applicant to testify, stated that all he could do for the applicant was to remain silent.
During a break the presiding judge made an offer to the applicant that if he confessed, any prison sentence imposed on him would not exceed six years; otherwise the hearing would be adjourned and should the charges brought against the applicant prove true in the course of the resumed proceedings, a term of imprisonment of twelve years was to be discussed. The applicant refused the offer, which was not recorded.
Evidence was also heard from B. and S. as hearsay witnesses. B. refrained from making statements about the case as such. S. gave hearsay testimony on statements made by H. in relation to the sale of the drugs to the applicant following their importation but stated that he could not give any information regarding the sale of the drugs by H. to the applicant as such.
By a decision of 2 September 2004 the Regional Court, sitting as a panel of three judges including G., ordered the continuation of the applicant’s detention pending trial on the ground that the outcome of the main hearing had confirmed the suspicion of drug trafficking against the applicant. The court based its decision essentially on the information given by police officer P., the hearsay testimony given by S., and on H.’s refusal to testify.
At the opening of the resumed hearing on 21 October 2004 the applicant objected to the participation of the presiding judge, G., on the ground of possible bias. He argued, in particular, that G. had already presided in the previous trial against H. and had obtained a confession from the latter after having indicated that if H. confessed he would not impose preventive detention (Sicherungsverwahrung) on him. Pursuant to German law, a ruling on preventive detention constituted a legal consequence that was not subject to the discretion of the judge, and any such plea bargain was therefore unlawful. Furthermore, the assessment of the evidence given by the witnesses during the hearing of 22 July 2004 and the interpretation of H.’s refusal to testify as reflected in the court’s decision to continue the applicant’s detention had been partial. Finally, the applicant maintained that the offer to terminate the trial made by the presiding judge at the hearing of 22 July 2004 showed that the judge had sought to exert undue pressure on the applicant with a view to expediting the proceedings and avoiding a proper investigation of the case.
The applicant’s objection against presiding judge G. was dismissed by the substitute chamber (Vertreterkammer) of Mosbach Regional Court the same day. As regards the court’s order continuing the applicant’s detention pending trial, the court found that it was based on the outcome of the discontinued hearing of 22 July 2004 and did not anticipate the judges’ assessment following examination of the case in the course of the proceedings. As regards the offer to terminate the proceedings, the substitute chamber found that an accused person would reasonably presume that such an offer by the presiding judge could only mean that in the event of a confession the accused would not face a sentence longer than six years and that otherwise he could be acquitted or face a sentence of up to twelve years, depending on the outcome of the trial. Under no circumstances could the offer be interpreted to imply that in respect of the same facts and circumstances the applicant would be liable to six or twelve years’ imprisonment depending on whether or not he made a confession.
At subsequent hearings, on 25 and 29 October and on 4 and 8 November 2004, the Court again heard H., S., B. and police officer P. The court also heard E., who had been a non-presiding judge (beisitzender Richter) during the previous hearing of 22 July 2004 and whose testimony gave an account of the statements made by H. and S. at that hearing. S. again stated that he could not give any information regarding the sale of the drugs by H. to the applicant as such, and withdrew any statements previously made to police officer P. during the police interview, indicating that H. had mentioned the applicant as purchaser of the drugs. H. himself denied having been involved in drug trafficking with the applicant. The court heard a number of further witnesses called by the applicant in his defence, but refused the applicant’s request for expert opinions, with a view to verifying the credibility of B.’s testimony. The applicant refrained from making statements regarding the case as such throughout the proceedings.
On 8 November 2004 Mosbach Regional Court convicted the applicant of drug trafficking in one case and acquitted him in the other two cases. He was sentenced to nine years’ imprisonment. The Regional Court based its judgment mainly on the testimony given by B., police officer P. and judge E. The court pointed out that B. had only been a hearsay witness but had also testified as to her own perception of the events. The court stated that it was aware that the credibility of B.’s statements required particular scrutiny, and gave reasons as to why the content and circumstances of her testimony before the court had confirmed its credibility. The Regional Court further reasoned that its finding was supported by H.’s refusal to testify in order to protect the applicant and the evidence given by S. during his interview with police officer P. The court further pointed out that H.’s confession during his own trial had not been taken into consideration in the trial against the applicant.
On 2 February 2005 the applicant lodged an appeal on points of law with the Federal Court of Justice (Bundesgerichtshof) arguing that the presiding judge had been biased and should have been excluded from the trial. He further complained, inter alia, that the admission of evidence and the assessment of the witnesses’ statements by the court had been arbitrary.
On 1 June 2005 the Federal Court of Justice rejected the appeal as unfounded, following a statement of the Federal Public Prosecutor (Generalbundesanwalt).
On 6 July 2005 the applicant lodged a constitutional complaint alleging that the decisions of the Regional Court and the Federal Court of Justice infringed his right under Article 101 § 1, second sentence, of the German Basic Law (Grundgesetz), which provided that no one should be deprived of his right to a decision rendered by the court established by law (gesetzlicher Richter), on the ground that the presiding judge had been biased and the refusal to exclude him from the trial had been arbitrary. The conduct of the proceedings against H. and the plea bargain offered to the applicant at the beginning of his trial showed that the presiding judge had been convinced of the applicant’s guilt from the beginning of the proceedings. He further complained that H.’s confession had been obtained in violation of Article 136a § 1 of the Code of Criminal Procedure and should therefore not have been admissible as evidence in his own trial.
By a decision of 16 November 2005 the Federal Constitutional Court declined to consider the applicant’s constitutional complaint on the ground that it was unfounded. It held that the dismissal of the applicant’s objection to the presiding judge by the relevant courts had not been based on arbitrary considerations and did not therefore constitute a violation of the applicant’s right under Article 101 § 1, second sentence, of the German Basic Law. As regards the participation of the presiding judge in the proceedings against H., the Federal Constitutional Court pointed out that the lower courts could rely on the principle that the participation of a judge in separate proceedings did not generally give rise to bias on that judge’s part.
The Federal Constitutional Court specified that even though the considerable difference in the length of the prison sentences mentioned by the presiding judge in his offer to the applicant might give cause for concern, the alternatives given were only meant to indicate the scope within which a possible sentence was “to be discussed” and not to give binding alternatives regarding the length of a possible prison sentence depending on whether the applicant confessed or not. An indication by the presiding judge that a confession might entail a substantial mitigation of sentence and an offer of an upper limit on the prison sentence did not in itself constitute an attempt by the presiding judge to unduly influence the applicant. The fact that the offer was made by the presiding judge at a time when important witnesses had not yet made a statement during the main hearing, but only during police interviews, did not establish bias on his part either, particularly as the Regional Court had already heard the police officer who had previously interviewed those witnesses.
The Federal Constitutional Court further held that the presiding judge’s attempt to reach a plea bargain with the applicant with a view to terminating the proceedings did not amount to a violation of his basic rights, since in any event it had been to no avail and the judgment of the Regional Court had thus not been based on it. The same applied to the alleged violation of the provisions of the Code of Criminal Procedure in connection with the confession obtained from H., since the Regional Court did not base its judgment in the proceedings against the applicant on H.’s previous confession.
The relevant provisions of the Code of Criminal Procedure read as follows:
Article 24 § 2
“An objection can be raised on the ground of fear of bias if there is a reason which may justify doubts regarding the impartiality of a judge.”
Article 136a
“(1) The accused’s freedom to make up his mind and to manifest his will shall not be impaired by ill-treatment, induced fatigue, physical interference, administration of drugs, torture, deception or hypnosis. Coercion may be used only as far as this is permitted by the statutory criminal procedure. Threatening the accused with measures not permitted under its provisions or holding out the prospect of an advantage not envisaged by statute shall be prohibited.
...”
Article 333
“An appeal on points of law may be lodged against judgments of the penal chambers...”
Article 338
“A judgment shall always be considered to be based on a violation of the law
...3. if a professional judge or lay judge has participated in the drafting of a judgment after being challenged for bias and if the application to challenge was either declared to be well-founded or erroneously rejected...”.
Article 101 § 1, second sentence, of the German Basic Law (Grundgesetz) provides that no one shall be deprived of his right to a decision rendered by the court established by law (gesetzlicher Richter). In its case-law, the Federal Constitutional Court has consistently dealt with the issue of whether a judge should be excluded for suspicion of bias as a problem of the right to a decision rendered by the legally competent judge.


ITEMID: 001-72521
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: CHAMBER
DATE: 2006
DOCNAME: CASE OF TÜM HABER SEN AND ÇINAR v. TURKEY
IMPORTANCE: 1
CONCLUSION: Violation of Art. 11;Not necessary to examine Art. 13+11
JUDGES: Ireneu Cabral Barreto;Jean-Paul Costa;Karel Jungwiert;Volodymyr Butkevych
TEXT: 8. Tüm Haber Sen is a trade union, now dissolved, which was active between 1992 and 1995. The application was lodged by its former president, İsmail Çınar, a Turkish national who was born in 1954 and lives in Istanbul.
9. On 16 January 1992 Tüm Haber Sen was formed when its founding document was lodged with the Istanbul Governor's Office, in application of Article 51 of the Constitution. Its statutes referred, inter alia, to the right to conclude collective-bargaining agreements. The founders of Tüm Haber Sen were 851 public-sector contractual staff working in the communications field, in particular for the post office (PTT) and the telecommunications service (Türk Telecom). When it was dissolved the trade union had 40,000 members and 55 local branches.
10. On 20 January 1992 the Istanbul Governor's Office applied to the Şişli public prosecutor's office, seeking the suspension of Tüm Haber Sen's activities and the trade union's dissolution on the ground that State employees could not form trade unions. It referred in its complaint to Article 51 of the Constitution, section 1 of the Trade Union Act (Law no. 2821) and sections 22 and 27 of the State Employees Act (Law no. 657).
11. In a notice of 3 February 1992, the Principal Public Prosecutor called on the Fourth Civil Division of the Şişli District Court to suspend the trade union's activities and to order its dissolution on the ground that under the positive law State employees, who were subject to Law no. 657, were not entitled to form trade unions.
12. In their written observations submitted to the District Court on 26 March 1992, the trade union's representatives argued that the legal provisions in force did not expressly prohibit the formation of trade unions by civil servants and that an obstacle to the exercise of trade-union rights would be in breach of Turkey's international commitments as a signatory to the European Convention on Human Rights, the conventions of the International Labour Organisation, and the European Social Charter.
13. On 15 December 1992 the District Court suspended the trade union's activities and ordered that it be dissolved.
14. The trade union's representatives appealed to the Court of Cassation.
15. On 14 February 1994 the Court of Cassation quashed the District Court's judgment and referred the case back to it. In its reasoning, it stated that the fact that the words “trade union” appeared in the association's title did not make it a trade union in the technical sense, namely that it would be authorised to call strikes and to enter into collective agreements. At the most, the association could be considered as a professional organisation which aimed to protect the interests of its members, who worked in a specified sector.
16. Before the District Court, the representatives of Tüm Haber Sen argued that it ought to be considered as a trade union which was authorised to call strikes and to enter into collective agreements. On 9 November 1994 the District Court, having examined the arguments submitted by the trade union's representatives, upheld its initial judgment.
17. The trade union's representatives again submitted an appeal on points of law.
18. In a judgment of 24 May 1995, the Court of Cassation, sitting as a full court and ruling at last instance, ordered the dissolution of Tüm Haber Sen. It considered that implementation of the right to form trade unions, as set out in the Constitution, required the enactment of a general principles act. In the absence of any statutory provisions governing the legal status of trade unions for civil servants or public-sector contractual workers, the applicant trade union could not claim to have any legal status. Nor could it be considered as an association or as some form of professional organisation, since its leaders expressly presented it as a full trade union. In spite of Turkey's ratification of International Labour Conventions nos. 87 (on freedom of association and protection of the right to organise) and 151 (on protection of the right to organise and the procedures for determining the conditions of employment in the civil service) on 12 July 1993, the Court of Cassation, sitting as a full court, considered that the trade union could not rely on the conventions in question, since they were not directly applicable in domestic law and the legislature had not yet enacted implementing legislation.
19. The judgment was served on the trade union's representatives on 8 June 1995.
20. Between 26 June 1995 and 2 August 1995, all of Tüm Haber Sen's branches and sections were dissolved on the orders of the Ministry of the Interior.
21. The relevant provisions of the Constitution read as follows:
“Workers and employers have the right to form trade unions and employers' associations and federations of unions, without prior permission, in order to safeguard and develop their economic and social rights and interests in their labour relations.
In order to form a union or a federation of unions, it shall suffice to submit the information and documents prescribed by law to the competent authority designated by law. If it finds that this information and documentation is not in conformity with law, the competent authority shall apply to the appropriate court for the suspension of activities or the dissolution of the union or the association of unions.
Everyone shall be free to become a member of or withdraw from membership of a union.
No one shall be compelled to become a member, remain a member, or withdraw from membership of a union.
Workers and employers cannot hold concurrent memberships in more than one trade union or employers' association.
Employment in a given workplace shall not be made conditional on membership or lack of membership of a trade union.
In order to hold a leadership position in a trade union or federation of trades unions, it is necessary to have worked as an employee for at least ten years.
The status, administration, and functioning of trades unions and federations of trades unions should not be inconsistent with the characteristics of the Republic or with democratic principles as defined in the Constitution.”
“Workers and employers have the right to form trade unions and employers' associations and federations of unions, without prior permission, in order to safeguard and develop their economic and social rights and the interests of their members in their labour relations, and to join and withdraw from such entities of their own free will. No one shall be compelled to become a member or withdraw from membership of a union.
The right to form a union may only be restricted by law and for the purposes of safeguarding national security and public order and preventing crime, and for the protection of public health and public morals and the rights and freedoms of others.
The formalities, conditions and procedures to be applied in exercising the right to form a union shall be established by law.
It is not permitted to hold membership of more than one trade union simultaneously within the same sector of employment.
The scope of the rights in this area of civil servants who do not have the status of salaried employee, and the exceptions and limitations applicable to them, shall be established by law in line with the nature of the tasks entrusted to them.
The statutes, administration and functioning of trade unions and their higher bodies should not be inconsistent with the characteristics of the Republic or with democratic principles as defined in the Constitution.”
“Workers and employers have the right to conclude collective-bargaining agreements in order to regulate reciprocally their economic and social position and conditions of work.
The procedure to be followed in concluding collective-bargaining agreements shall be regulated by law.
It shall be forbidden to conclude or apply more than one collective-bargaining agreement in a single place of work for the same period.”
“Workers and employers have the right to conclude collective-bargaining agreements in order to regulate reciprocally their economic and social position and conditions of work.
The procedure to be followed in concluding collective-bargaining agreements shall be regulated by law.
The unions and federations of unions which the public employees mentioned in the first paragraph of Article 128 will be entitled to found and which do not fall under the scope of the first and second paragraphs of the same Article and also Article 54, may appeal to judicial authorities on behalf of their members and may hold collective-bargaining meetings with the administration in accordance with their aims. If an agreement is reached as a result of collective bargaining, a text of the agreement shall be signed by the parties. This text shall be presented to the Council of Ministers so that administrative or judicial arrangements can be made. If such a text cannot be concluded by collective bargaining, the points of agreement and disagreement shall also be submitted by the relevant parties for consideration by the Council of Ministers. The regulations for the execution of this Article shall be set out in legislation.
It shall be forbidden to conclude or apply more than one collective-bargaining agreement in a single place of work for the same period.”
“The fundamental and permanent functions required by the public services that the State, State economic enterprises and other public corporate bodies are assigned to perform, in accordance with principles of general administration, shall be carried out by public servants and other public employees.
The qualifications of public servants and other public employees, procedures governing their appointments, duties and powers, their rights and responsibilities, salaries and allowances, and other matters related to their status shall be regulated by law.
The procedure and principles governing the training of senior administrators shall be specially regulated by law.”
22. Section 22 of the State Employees Act (Law no. 657) of 14 July 1965, which was repealed by Article 5 of Legislative Decree no. 2 of 23 December 1972, stated that civil servants were authorised to establish and join trade unions and professional organisations, in accordance with the procedures set out in special laws. Its second paragraph stated that the said professional organisations were authorised to defend the interests of their members before the competent authorities.
Section 1 of Law no. 4275 of 12 June 1997 restored the above provision and supplemented it with a number of conditions. The text now provides:
“Civil servants shall be authorised to establish trade unions and other federations of professional organisations and to join them in accordance with the procedures set out in the Constitution and by special laws.”
Section 27 provides:
“Civil servants are forbidden ... to organise, call or spread propaganda about strikes.
Civil servants may not take part in a strike ... may not support or encourage strike action.”
23. Article 2 of Convention no. 87 of 1948 (of the International Labour Organisation) concerning Freedom of Association and Protection of the Right to Organise provides:
“Workers and employers, without distinction whatsoever, shall have the right to establish and, subject only to the rules of the organisation concerned, to join organisations of their own choosing without previous authorisation.”
24. Article 5 of the European Social Charter provides:
“The right to organise
With a view to ensuring or promoting the freedom of workers and employers to form local, national or international organisations for the protection of their economic and social interests and to join those organisations, the Contracting Parties undertake that national law shall not be such as to impair, nor shall it be so applied as to impair, this freedom. The extent to which the guarantees provided for in this Article shall apply to the police shall be determined by national laws or regulations. The principle governing the application to the members of the armed forces of these guarantees and the extent to which they shall apply to persons in this category shall equally be determined by national laws or regulations.”
VIOLATED_ARTICLES: 11


ITEMID: 001-86366
LANGUAGEISOCODE: ENG
RESPONDENT: POL
BRANCH: CHAMBER
DATE: 2008
DOCNAME: CASE OF FLOREK v. POLAND
IMPORTANCE: 4
CONCLUSION: Violation of Article 6 - Right to a fair trial
JUDGES: David Thór Björgvinsson;Giovanni Bonello;Ján Šikuta;Lech Garlicki;Ledi Bianku;Nicolas Bratza
TEXT: 4. The applicant was born in 1950 and lives in Szczecin.
5. On 27 June 1995 the applicant lodged a statement of claim with the Goleniów District Court (Sąd Rejonowy).
6. On 26 October 1995 the Goleniów District Court found that it lacked jurisdiction to deal with the case and referred it to the Szczecin Regional Court (Sąd Okręgowy).
7. On 12 December 1995 the applicant was ordered to rectify certain procedural shortcomings in her claim in order to fulfil the formal requirements set out in Polish law. She complied with the court’s order in December 1995.
8. At a hearing on 22 March 1996 the defendant lodged a counterclaim. On an unknown date in April 1996 the applicant submitted her reply to the counterclaim.
9. Between 12 February and 14 November 1997 the court held five hearings.
10. On 1 December 1997 the Szczecin Regional Court delivered its judgment.
11. On 5 December 1997 the applicant lodged a notice of appeal. On 27 March 1998 she was served with the court’s statement of reasons.
12. The case was referred to the Poznań Court of Appeal (Sąd Apelacyjny) in August 1998. On 7 March 2000 the court partly amended the judgment and remitted the case in part.
13. On 12 June 2000 the applicant lodged a cassation appeal with the Supreme Court (Sąd Najwyższy) against the judgment of the Court of Appeal.
14. On 14 February 2002 the Supreme Court, sitting in camera, refused to entertain the cassation appeal as it did not raise any issue of general importance.
15. On 20 June 2002 the Poznań Court of Appeal remitted the case to the Szczecin Regional Court.
16. On 23 May 2003 the Szczecin Regional Court held a hearing. A hearing scheduled for 6 April 2004 was postponed because the judge was ill.
17. On 15 June 2004 a hearing was held.
18. On 29 June 2004 the Szczecin Regional Court delivered its judgment. The applicant lodged an appeal against it.
19. On 23 November 2005, by a final judgment of the Poznań Court of Appeal, the applicant’s appeal was dismissed.
20. On 16 March 2005 the applicant lodged a complaint with the Supreme Court under section 5 of the Law of 17 June 2004 on complaints about a breach of the right to a trial within a reasonable time (Ustawa o skardze na naruszenie prawa strony do rozpoznania sprawy w postępowaniu sądowym bez nieuzasadnionej zwłoki) (“the 2004 Act”). The Supreme Court referred the case to the Szczecin Court of Appeal.
21. The applicant sought a ruling declaring that the length of the proceedings before the Szczecin Regional Court had been excessive and an award of just satisfaction in the amount of 10,000 Polish zlotys (PLN).
22. On 24 June 2005 the Szczecin Court of Appeal gave a decision in which it acknowledged the excessive length of the proceedings before the Szczecin Regional Court, finding that there had been periods of unjustified inactivity in 1995 and 1996, then between January and March 1998 and between June and November 2002. It awarded the applicant PLN 3,000 in just satisfaction. The court observed that the claim for just satisfaction in the amount of PLN 10,000 was excessive.
23. The court did not take into consideration the delays that had occurred before the Szczecin Court of Appeal (between August 1998 and 7 March 2000), nor did it consider the period between 12 June 2000 and 14 February 2002, when the case was pending before the Supreme Court.
24. On 5 January 1995 a certain “S-P” Company Ltd instituted civil proceedings for repossession against the applicant. Between 20 January 1995 and 22 October 1996 the court held twelve hearings. By a decision of 12 December 1996 the Goleniów District Court discontinued the proceedings.
25. On an unknown date in 1994 the police instituted criminal proceedings against the applicant on charges of threatening behaviour. On 9 January 1995, by a decision of the district prosecutor, the applicant was made subject to a police supervision order. The applicant appealed.
26. On 10 February 1995 the Szczecin Regional Prosecutor amended the decision and the police supervision order was quashed.
27. On 29 March 1996 the Goleniów District Court issued a penal order imposing a fine on the applicant. It appears that the applicant lodged an appeal. The proceedings were terminated by a final decision of 5 June 1996 (the applicant has not produced a copy of it).
28. The relevant domestic law and practice concerning remedies for the excessive length of judicial proceedings, in particular the applicable provisions of the 2004 Act, are stated in the Court’s decisions in the cases of Charzyński v. Poland no. 15212/03 (dec.), §§ 12-23, ECHR 2005-V and Ratajczyk v. Poland no. 11215/02 (dec.), ECHR 2005-VIII and the judgment in the case of Krasuski v. Poland, no. 61444/00, §§ 34-46, ECHR 2005-V.
VIOLATED_ARTICLES: 6


ITEMID: 001-121099
LANGUAGEISOCODE: ENG
RESPONDENT: BGR
BRANCH: ADMISSIBILITY
DATE: 2013
DOCNAME: HINOV v. BULGARIA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: David Thór Björgvinsson;George Nicolaou;Ineta Ziemele;Ledi Bianku;Paul Mahoney;Vincent A. De Gaetano;Zdravka Kalaydjieva
TEXT: 1. The applicant, Mr Rumen Rumenov Hinov, is a Bulgarian national, who was born in 1967 and lives in Sofia. He was represented before the Court by Ms K. Trifonova, a lawyer practising in Sofia.
2. The Bulgarian Government (“the Government”) were represented by their Agent, Ms M. Dimova, of the Ministry of Justice.
3. The facts of the case, as submitted by the parties, may be summarised as follows.
4. At the relevant time the applicant was a practising lawyer and a member of the Kyustendil Bar Association (“the KBA”).
5. On 1 December 2004 the Council of the KBA, relying on section 23(1) of the Bar Act 2004 (see paragraph 15 below), decided to suspend the applicant’s membership because a charge had been brought against him for aggravated hooliganism, an offence under the Criminal Code of 1968.
6. The applicant submitted that on one occasion he was prevented from defending a client in proceedings before the domestic courts because of the suspension.
7. The applicant appealed against his suspension to the Supreme Bar Council. He argued, most notably, that the measure had breached the presumption of innocence and his constitutionally-guaranteed right to work.
8. On 25 March 2005 the Supreme Bar Council upheld the KBA’s decision.
9. Upon further appeal by the applicant, who reiterated the above-mentioned arguments, by a judgment of 27 February 2006 the Supreme Court of Cassation quashed the applicant’s suspension, noting that as of 24 May 2005 the Bulgarian Parliament had repealed the relevant part of section 23(1) of the Bar Act as being contrary to the Constitution. The Supreme Court of Cassation also noted that the legal power to suspend an individual from exercising professional activities pending the outcome of criminal proceedings against him was regulated by Article 154(1) of the Code of Criminal Procedure (see paragraph 17 below), which was the constitutionally sound way to achieve the aim pursued by that measure.
10. Meanwhile, on 30 May 2005 the Supreme Bar Council notified the applicant that following the repeal of the relevant part of section 23(1) of the Bar Act he was again eligible to practise his profession. On 2 June 2005 the Council of the KBA formally revoked its decision of 1 December 2004.
11. Between 2004 and 2010 the applicant was convicted on eight occasions of a variety of offences, such as theft, hooliganism, making false accusations and perjury, most of which were committed between 2002 and 2004. As of 2011 there were other criminal proceedings pending against him.
12. In particular, in the criminal proceedings which led to the applicant’s suspension from the KBA, by a judgment of 5 December 2007, in force as of 23 June 2008, the Sofia District Court convicted the applicant of aggravated hooliganism and sentenced him to three years’ imprisonment.
13. On several occasions in 2007 the applicant was remanded in custody in connection with the criminal proceedings against him. He was imprisoned in Sofia Prison from 15 November 2007 to 21 September 2011 to serve an aggregate prison sentence in respect of a number of his convictions.
14. On the basis of the applicant’s convictions, on 26 February 2007 the KBA struck him off the list of its members.
15. Section 23(1) of the Bar Act 2004 as originally enacted provided that barristers’ practising rights were to be temporarily suspended in the event, inter alia, that they were charged with a criminal offence.
16. On 11 May 2005 the Bulgarian Parliament, acting on the initiative of a group of its members, repealed that part of section 23(1). The members of Parliament who initiated the amendment argued that suspension while criminal charges were pending was contrary to the Constitution, which provided that everyone was innocent until proved guilty, and that the right to practise a profession was guaranteed and protected by law. The repeal entered into force on 24 May 2005.
17. Article 154 of the Code of Criminal Procedure 1974, in force until April 2006, provided that in the event that criminal charges were brought for an offence which related to the accused individual’s professional activity, and where the accused’s professional position could prevent the establishment of the facts, the first-instance court could, upon the prosecutor’s request, suspend the individual from his position. The measure was to be discontinued when it was no longer considered justified.