ITEMID: 001-67700
LANGUAGEISOCODE: ENG
RESPONDENT: NLD
BRANCH: ADMISSIBILITY
DATE: 2004
DOCNAME: VAN THUIL v. THE NETHERLANDS
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: David Thór Björgvinsson
TEXT: The applicant, Gijsbert Bertus van Thuil, is a Netherlands national, who was born in 1952 and lives in Amsterdam. He is represented before the Court by Mr S.T. van Berge Henegouwen, a lawyer practising in Maastricht.
In 1992, 1993 and 1994 the applicant's name appeared in various criminal investigations that were being conducted. On 19 January 1993 a preliminary judicial investigation (gerechtelijk vooronderzoek) was opened against the applicant on suspicion of narcotics and other drug related offences. A further preliminary judicial investigation was opened against him in February 1994. These investigations eventually resulted in a total of eleven charges being brought against the applicant. The first charge, insofar as relevant, read as follows:
“1. that he, in or around the period from 1 September 1993 to 25 February 1995 in Amsterdam and/or elsewhere in the Netherlands and/or in Spain, has participated in an organisation having as its aim the commission of criminal offences and/or of which organisation he, [the] accused, was actually in charge (“aan welke organisatie, hij verdachte, feitelijke leiding heeft gegeven”);
that organisation consisted of a group of persons, namely [the accused] and/or [five co-accused] and/or one or more others who were (each time) involved in [offences involving synthetic drugs and cocaine, an unlawful deprivation of liberty and/or threats to life];
those crimes concerned (each time) intentional acts in violation of [the provisions of the Opium Act (Opiumwet) and/or the provisions of the Criminal Code (Wetboek van Strafrecht)];
[constituting a punishable offence under] Article 140 § 1 of the Criminal Code”
The remaining charges concerned:
- the exportation of synthetic drugs, together with others or alone, from the Netherlands to Spain between 1 May 1994 and 30 June 1994 (charge no. 2);
- the exportation of synthetic drugs, together with others or alone, from the Netherlands to the United Kingdom between 29 June 1994 and 7 July 1994 (charge no. 3);
- the exportation of synthetic drugs, together with others or alone, from the Netherlands to the United Kingdom between 10 February 1994 and 21 July 1994 (charge no. 4);
- the exportation of synthetic drugs, together with others or alone, from the Netherlands to Germany between 1 August 1994 and 31 August 1994 or, alternatively, the possession of, transporting of and/or trafficking in synthetic drugs in the Netherlands during that period (charge no. 5);
- the production of, transporting of and/or trafficking in synthetic drugs in the Netherlands between January 1994 and 10 October 1994 (charge no. 6);
- the production and/or possession of synthetic drugs, together with others or alone, in the Netherlands between 1 January 1994 and 27 February 1995 (charge no. 7)
- the production, possession and/or transporting of synthetic drugs, together with others or alone, in the Netherlands between 1 November 1993 and 4 February 1994 or, alternatively, having provided others with the necessary means for committing these offences (charge no. 8);
- the production, possession and/or transporting of synthetic drugs, together with others or alone, in the Netherlands between 1 September 1994 and 31 January 1995 (charge no. 9);
- the exportation of cannabis and/or hashish, together with others or alone, from the Netherlands to the United Kingdom between 1 July 1992 and 31 August 1992 (charge no. 10); and
- having unlawfully deprived, together with others or alone, a person of his liberty between 16 and 19 July 1994 (charge no. 11).
On 23 February 1995, the applicant was taken into detention in Spain on the basis of a Netherlands request for his extradition. Following extradition proceedings in Spain, the applicant was extradited on 20 August 1996 to the Netherlands, where he was placed in pre-trial detention. He was summoned to appear on 29 November 1996 before the Regional Court (arrondissementsrechtbank) of The Hague in order to stand trial on the aforementioned charges.
In the course of the hearing held on 18 April 1997 before the Regional Court, the public prosecutor amended, inter alia, the first charge by replacing the phrase “and/or of which organisation he, [the] accused, was actually in charge” with “whereas the accused, within that organisation, has fulfilled the role of director” (“terwijl hij, verdachte, binnen die organisatie een rol als bestuurder heeft vervuld”) and by replacing the reference to Article 140 § 1 of the Criminal Code with a reference to Article 140 §§ 1 and 3 of the Criminal Code.
In its judgment of 17 July 1997, the Regional Court declared the prosecution inadmissible in respect of the sixth, seventh, eight and ninth charges, finding that, during the criminal investigations, the authorities had used an infiltrator whose deployment and activities had not been duly recorded, thus rendering any subsequent control impossible. Although it found that the public prosecutor who had issued the summons against the applicant had not been aware of the role of the infiltrator at the outset, it was established that the prosecution had become aware of the matter before the hearing of 18 April 1997, whereupon the prosecutor should have notified the Regional Court of this without delay. It held that, in these circumstances, there had been a serious breach of the principles of proper trial procedure (beginselen van een behoorlijke procesorde) for which only the most severe sanction was appropriate, namely to declare inadmissible the prosecution of these charges.
It further declared the prosecution inadmissible in respect of that part of the first charge which had been amended by the prosecution on 18 April 1997, i.e. the factor that the applicant had acted as the director of the criminal organisation. It agreed with the defence that this point had not been examined in the Spanish extradition proceedings whereas, pursuant to Article 14 § 3 of the European Convention on Extradition, it should have been determined whether the charge as amended would have allowed extradition.
The Regional Court convicted the applicant of participation in a criminal organisation. He was also convicted on the second, third, fourth, fifth, tenth and eleventh charges. It acquitted him of the remaining charges and sentenced him to ten years' imprisonment, less the time spent in detention in Spain pending his extradition and the time spent in pretrial detention in the Netherlands.
The applicant filed an appeal with the Court of Appeal (gerechtshof) of The Hague and, in this connection, requested the public prosecutor, by letter of 13 January 1998, to summon numerous witnesses, including the police officers X and Y who had acted as “runners” for Mr Z, the civilian infiltrator who had been deployed in the different investigations which had led to the institution of criminal proceedings against the applicant.
The Court of Appeal commenced its examination on 4 February 1998. In the course of eleven hearings held between 18 February 1998 and 8 September 1998, the Court of Appeal heard a total of twenty-eight witnesses, including ten police officers, three public prosecutors and an investigating judge (rechter-commissaris). Although the Court of Appeal had accepted the applicant's request to take oral evidence from the police officers X and Y, they failed to appear. In the course of the proceedings, the public prosecutor informed the Court of Appeal that, given their current mental health, the two police officers were unable to undergo questioning. This contention was supported by medical opinions drawn up by a police medical officer, a psychologist and a psychiatrist. Considering that it was pointless to summon these witnesses again, the Court of Appeal rejected the applicant's request to this effect.
At the hearing held on 14 September 1998, the Court of Appeal heard the parties' final pleadings and set a date for judgment.
In its judgment of 28 September 1998, the Court of Appeal quashed the Regional Court's judgment of 17 July 1997. As regards the request by the defence to reconsider its decision not to pursue efforts to hear the witnesses X and Y, the Court of Appeal held that the arguments put forward by the defence were insufficient for such reconsideration. In reaching this finding, the Court of Appeal took into account that it had obtained extensive information about the activities of Z as an infiltrator by other means, such as the statements given by X and Y to the State Criminal Investigation Department (Rijksrecherche), a nine page fax message sent by Z to the Kennemerland Regional Criminal Intelligence Service (Criminele Inlichtingendienst) containing a “report on activities concerning Amsterdam”, copies of internal notes containing information conveyed to the investigating authorities by Z and the statements given by X and Y to the Zutphen investigating judge. It also rejected the argument that the prosecution should be declared inadmissible on account of the State's failure to secure the appearance of these two police officers. Although it found the situation to be highly unsatisfactory, it had not been established that this was the result of an intentional obstruction of judicial proceedings by the police officers concerned or their superiors. It further considered that, in view of the results of the investigation at trial, the interest of the defence in hearing both “runners” had diminished during the course of the proceedings, although the investigation at trial had not been complete.
It upheld the decision of the Regional Court to declare the prosecution inadmissible regarding the applicant's purported role as the director of a criminal organisation, given that this had not been raised in the Spanish extradition proceedings. It further declared the prosecution inadmissible in respect of the fourth, sixth, seventh, eighth and ninth charges. Insofar as relevant, the Court of Appeal held, as to the admissibility of the prosecution, as follows:
“In view of the suspicion that existed in respect of some groups to which the [applicant] was suspected to belong, the deployment of Z as (a civilian) informer/infiltrator was justified. Pursuant to the directives [on] infiltration dated 20 February 1991 then in force, this deployment required the approval of the public prosecution department.
Whether this approval has been given and, if so, in how far the responsible public prosecution department supervised the activities of Z, or how far Z acted upon the instructions of the runners or according to his own plans and insight, has – after the further investigation by the court – not been clarified. ... The court is of the opinion that it is plausible that, insofar as he has not respected instructions or has acted more extensively than allowed by the runners, with the supply of base materials and devices, or the production of hard drugs in the various laboratories, Z was given the opportunity, given the lack of supervision and control by the Regional Criminal Intelligence Service, to commit unpunished criminal offences and generate [income from crime]. In these circumstances, the public prosecution department must be held responsible for the activities not directed by the Regional Criminal Intelligence Service or the public prosecution department. ...
This is different for the [charges set out under nos.] 2, 3, 5, 10 and 11. Insofar as these facts can be proven, it has not been established that Z had anything to do with [these facts].
The infiltration by Z also forms no obstacle to the admissibility of the prosecution as regards [the first charge]. The element that Z, as an infiltrator, has in fact participated in, and possibly in certain cases has taken the initiative in, the commission of some of the punishable facts charged – the preparation/production of amphetamines and/or XTC – and that, in view of the probable scope of Z's activities, the public prosecution must be declared inadmissible in respect of those facts in the case against [the applicant], does not mean that the public prosecution department must be denied its right to prosecute [the applicant] as regards his participation in an organisation whose aim is to commit these and other criminal offences. There is no indication whatsoever that the organisation would not have existed without the commitment of Z. Nor has it been established that the applicant would not have participated in the organisation if Z had not become involved in it.”
The Court of Appeal acquitted the applicant, for lack of evidence, on the second, third, fifth and tenth charges, and convicted him of participation in a criminal organisation and of participation in the commission of an unlawful deprivation of liberty (first and eleventh charges). It sentenced him to five years' imprisonment, less the time spent in detention in Spain pending his extradition and the time spent in pretrial detention in the Netherlands.
As to the determination of the applicant's sentence, the Court of Appeal held as follows:
“The court has determined the sentence on the basis of the gravity of the offences and the circumstances under which they were committed, and on the basis of the person and the personal circumstances of the [applicant], as has emerged from the hearings before the court.
The court has had particular regard to the following:
The [applicant] has participated in a criminal organisation involved in the production and exportation of amphetamines and XTC on a large scale. He has played a managing role (“leidinggevende rol”) in that organisation. He was motivated by financial greed, regardless of the considerable dangers which drugs such as amphetamines and XTC, as commonly known, constitute to public health. In connection with these criminal activities, the accused has further, together with others, committed an unlawful deprivation of liberty in which one of the members of the organisation was [deprived of his liberty].
The court further takes into account that the accused, according to his own statement, was sentenced to a lengthy term of imprisonment in Spain in 1988 in respect of a [drug offence].
In view of the nature and seriousness of the facts found proven, the court is of the opinion that only an unconditional prison sentence [of five years] is a fitting sanction.”
The applicant filed an appeal in cassation with the Supreme Court (Hoge Raad) and raised seventeen complaints. He first complained that the Court of Appeal, in the reasons determining the sentence, had disregarded the law and/or the formalities entailing nullity because:
“According to Article 140 of the Criminal Code, it is a (considerable) aggravating circumstance when a participant in a [criminal] organisation manifests himself as a founder or director thereof. This aggravating circumstance was initially not included in the charge and it was also not notified to the extraditing State. The Court of Appeal of The Hague has thus correctly found that the public prosecution department did not have a right of prosecution in respect of this aggravating circumstance. Incomprehensibly, however, the Court of Appeal subsequently attributes to this aggravating circumstance a prominent role in the prosecution via the back door in its determination of the sentence. Indeed, the Court of Appeal explicitly considers that having a managing role in the organisation is significant in the determination of the punishment. Thereby, despite the prohibition on prosecution correctly determined by the Court of Appeal, the [applicant] has been prosecuted and convicted for directing/managing the organisation [at issue]. The judgment has therefore not, or in any event not in a comprehensive manner, been reasoned as required by law.”
In his advisory opinion, the Procurator General to the Supreme Court proposed to reject this complaint, considering that:
“It must first be put that [a] “managing role” is not, by definition, equivalent to directing a criminal organisation or fulfilling the role of the director of that organisation, as meant by Article 140 § 3 of the Criminal Code. One can very well give guidance without being a director, as meant in the charge that was brought and in respect of which the prosecution was declared inadmissible. In its considerations, the Court of Appeal has only indicated that [the applicant] has contributed more to the operation of that organisation than other participants, without – in giving this indication – finding that he performed the role of director ... The complaint therefore rests on an incorrect understanding of the judgment and it lacks a factual basis.”
In his response to the advisory opinion, the applicant submitted:
“In his advisory opinion on the first complaint, the Procurator General indicates that the complaint rests on an incorrect understanding of the judgment, as directing is not, by definition, equivalent to managing. The [applicant] is convinced that your Court, in your case law of the last two decades, has in fact indicated that “directing”, within the meaning of Article 140 of the Criminal Code, is not to be interpreted restrictively in the sense that it would only concern the civil law direction of (for instance) a legal person. It is indeed the managing of an organisation which is regarded by your Court as (a form of) directing under Article 140 of the Criminal Code. Charges in which the element of “directing” is factually described as “managing” can stand the test of criticism like this. If your Court were to follow the advisory opinion, this would - in the [applicant's] humble opinion - mean a departure from the current line, with considerable consequences for the prosecution of directing criminal organisations.”
In its judgment of 14 March 2000, the Supreme Court rejected the applicant's first complaint in cassation, holding:
“The charge under 1 is geared to Article 140 of the Criminal Code. In the proceedings in first instance that charge has been amended, in the sense that, to this [charge] – undeniably as an aggravating circumstance as meant in the third paragraph of that Article – has been added “whereas the accused, within that organisation, has fulfilled the role of director”.
In the impugned ruling, the Court of Appeal has declared the prosecution inadmissible regarding the charge under 1, insofar as it concerns that aggravating circumstance.
In the reasons given ... for the determination of the sentence, the Court of Appeal has taken into account that the [applicant] has played “a managing role” in the organisation concerned.
In so doing the Court of Appeal apparently was referring to the managerial activities of the [applicant] which are not of such a nature that they mean that the [applicant] must be regarded as the “director” under Article 140 § 3 of the Criminal Code.
The complaint, which rests on another understanding of the impugned ruling, thus lacks a factual basis, so that it cannot lead to cassation.”
The Supreme Court also rejected the applicant's complaint in cassation that his rights under, inter alia, Article 6 of the Convention had been breached by the refusal of the Court of Appeal to summon the witnesses X and Y again and/or to declare the prosecution inadmissible on account of the latters' failure to appear. As regards these complaints, the Supreme Court held:
“The[se] complaints do not constitute grounds for overturning the impugned judgment (“kunnen niet tot cassatie leiden”). Having regard to Article 101a of the Judiciary (Organisation) Act (Wet op de rechterlijke organisatie), no further reasoning is called for, since these complaints do not give rise to the need for a determination of legal issues in the interests of legal unity and legal development.”
It also rejected the other complaints in cassation raised by the applicant.
Article 140 of the Criminal Code (Wetboek van Strafrecht), as in force at the material time and in its relevant part, read as follows:
“1. Participation in an organisation whose aim is to commit offences shall be liable to a term of imprisonment not exceeding five years or a fourth category fine [i.e. 11,345 euros].
...
3. For those responsible for setting up [the organisation] or its directors (bestuurders), the term of imprisonment may be increased by one third, and a fine in the next higher category may be imposed.”
Article 359 of the Code of Criminal Procedure (Wetboek van Strafvordering), insofar as relevant, provides as follows:
“1. The judgment shall contain the charges and the substance of the evidence insofar as it serves to prove the charges.
...
3. The decision that a defendant committed the offence in question must be supported by facts or circumstances that are referred to as such in the judgment.
...
5. The judgment shall specify the reasons that have determined the sentence or non-punitive order.
6. In imposing a sentence or non-punitive order involving a deprivation of liberty, the judgment shall specify the reasons that led to that choice of penalty or order. It shall also describe, as far as possible, the circumstances that were taken into account in determining the length of the sentence.
...”
In determining the type and severity of the sentence to be imposed in cases where accused persons are found guilty, the courts have a considerable degree of latitude. The Criminal Code lays down a general minimum sentence (of one day as far as imprisonment is concerned - Article 10 § 2) and, depending on the offence in question, a maximum sentence. Within these limits, the court is free to determine the appropriate sentence in the light of the accused's
According to Article 57 of the Criminal Code, where two or more separate, indictable offences are committed, the maximum penalty which may be imposed is the combined total of the maximum penalties for each offence. However, insofar as a term of imprisonment is concerned, the penalty may not exceed the most severe maximum penalty by more than one third. In the present case, the first offence of which the applicant was convicted carried a maximum prison sentence of five years and the second offence a maximum prison sentence of eight years. The maximum sentence that could have been imposed on the applicant was therefore ten years and eight months.
Article 101a of the Judiciary (Organisation) Act, as in force at the material time, read as follows:
“If the Supreme Court considers that a complaint does not provide grounds for overturning the judgment appealed against and does not require answers to questions of law in the interests of the unity or development of the law, it may, in giving reasons for its decision on the matter, limit itself to that finding.”


ITEMID: 001-72152
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: CHAMBER
DATE: 2006
DOCNAME: CASE OF KELALİ AND OTHERS  v. TURKEY
IMPORTANCE: 4
CONCLUSION: Violation of P1-1;Not necessary to examine under Art. 6-1;Pecuniary damage - financial award;Non-pecuniary damage - finding of violation sufficient;Costs and expenses (domestic proceedings) - claim dismissed;Costs and expenses partial award - Convention proceedings
TEXT: 4. The applicants live in Mersin.
5. On 27 March 1996 the General Directorate of National Roads and Highways expropriated two plots of land belonging to the applicants in Mersin in order to build a motorway. A committee of experts assessed the value of the plots of land and the relevant amount was paid to the applicants when the expropriation took place.
6. Following the applicants’ request for increased compensation, on 14 October 1997 the Mersin Civil Court of First-instance awarded them additional compensation of 1,503,941,200 Turkish liras (TRL), plus interest at the statutory rate, applicable at the date of the court’s decision, running from 25 May 1994, the date of the seizure of the plots by the General Directorate of National Roads and Highways.
7. On 16 February 1999 the Court of Cassation upheld the judgment of the Mersin Civil Court of First-instance.
8. On 16 May 2000 the General Directorate of National Roads and Highways paid the applicants TRL 4,442,320,000 (approximately 7,694 euros (EUR), interest included.
9. The relevant domestic law and practice are set out in the Akkuş v. Turkey (judgment of 9 July 1997, Reports of Judgments and Decisions 1997-IV).


ITEMID: 001-99819
LANGUAGEISOCODE: ENG
RESPONDENT: LTU
BRANCH: CHAMBER
DATE: 2010
DOCNAME: CASE OF UŽUKAUSKAS v. LITHUANIA
IMPORTANCE: 3
CONCLUSION: Violation of Art. 6-1;Non-pecuniary damage - award
JUDGES: András Sajó;Françoise Tulkens;Guido Raimondi;Ireneu Cabral Barreto;Kristina Pardalos;Nona Tsotsoria
TEXT: 5. The applicant was born in 1972 and lives in Kaunas.
6. In 1999 the applicant was granted a licence to keep a firearm.
7. On 17 July 2002 the validity of the licence was extended.
8. On 15 November 2002 the applicant submitted a request for a licence to keep another type of firearm.
9. On 19 December 2002 police officials decided not to grant a new licence, given that on 13 December 2002 the applicant had been listed in an “operational records file” (policijos operatyvinė įskaita), that is, a database containing information gathered by law-enforcement authorities (see paragraphs 17-19 of the 'Relevant domestic law' below).
10. On 16 April 2003 the police wrote to the applicant informing him that his licence to keep a pistol and a hunting rifle had been revoked. The applicant was informed that, pursuant to Article 38 of the Law on the Control of Guns and Ammunition, he was to hand in these firearms to the authorities and would receive money for them.
11. The applicant instituted court proceedings challenging the entry of his name in the operational records file.
12. On 25 September 2003 the Kaunas Regional Administrative Court dismissed his action. The decision was based on classified material submitted by the police and analysed by the judges without it being disclosed to the applicant. The court concluded that the applicant's listing in the operational records file had been lawful and reasoned, in view of the information about the applicant held by the police.
13. The applicant appealed, complaining that he had had no access to the operational records file. He alleged that the court had not examined the classified evidence during the hearing, and that it had not assessed whether any parts of that information could have been disclosed to him.
14. On 29 October 2003 the Supreme Administrative Court upheld that decision. The court noted, inter alia, that the impugned evidence was classified as a State secret and, although reviewed by the court, could not be disclosed to the applicant.
15. The Government submitted that in July 2004, after the applicant had been granted a new firearms licence, his guns were returned to him.
16. Article 21 of the Constitution provides that the dignity of a human being is to be protected by law. Article 22 thereof states that the private life of a human being is inviolable and that information concerning a person's private life may be collected only following a reasoned court decision and only in accordance with the law. The law and the courts are to protect everyone from any arbitrary or unlawful interference with his or her private life or from encroachment upon his or her honour and dignity. Article 23 of the Constitution provides that property is inviolable and that ownership rights are protected by law. Property may be taken only for the needs of society in accordance with the procedure established by law, and must be fairly compensated. Under Article 30 of the Constitution, a person whose constitutional rights or freedoms have been violated has the right to apply to a court. Article 48 provides that each human being may freely choose a job or occupation.
17. Article 3 § 10 of the Law on Operational Activities (Operatyvinės veiklos įstatymas) describes the “operational records file” as a system of managing data on individuals, events and other targets obtained during operational activities. It is designed to provide information for law-enforcement authorities. Article 9 of the Law stipulates that an operational investigation is to be conducted when there is information that a serious crime is being planned or has been committed.
18. Article 17 § 1 (2) of the Law on the Control of Arms and Ammunition (Ginklų ir šaudmenų kontrolės įstatymas) provided at the material time that arms and ammunition could not be acquired or possessed by a person who did not have an impeccable reputation. According to Article 18 § 2 (5) of that Law, a person was not regarded as having an impeccable reputation if his or her name had been entered in an operational records file. Article 38 of the Law provided that, after a firearms licence had been revoked, the arms and ammunition were to be taken from the person concerned and sold through the Arms Fund (a State agency) or through other companies authorised to sell them.
19. Article 6 § 2 (4) of the Law on the Protection of Persons and Property (Asmens ir turto saugos įstatymas) provides that a person whose name is listed in an operational records file is not eligible to work as a security officer.
20. The relevant part of the Law on Administrative Procedure (Administracinių bylų teisenos įstatymas) provides as follows:
“1. Evidence in an administrative case is all factual data found admissible by the court hearing the case and based upon which the court finds ... that there are circumstances which justify the claims and rebuttals of the parties to the proceedings and other circumstances which are relevant to the fair disposal of the case, or that there are no such circumstances ...
3. As a rule, factual data which constitutes a State or official secret may not be used as evidence in an administrative case, until the data has been declassified in a manner prescribed by law.”
21. In the judgment of 4 September 2002 in case no. A10-786-02, the Supreme Administrative Court stated, in so far as relevant to the present case, that:
“as a rule, factual data which constitutes a State or official secret may not be used as evidence in an administrative case until it has been declassified (Article 57 § 3 of the Law on Administrative Proceedure). Therefore, in the absence of other evidence, the [lower] court's reliance on solely written information provided by the State Security Department which was marked as secret had no legal basis”.
22. On 15 July 2007 the Constitutional Court adopted a ruling on the compatibility with the Constitution of Article 57 § 3 of the Law on Administrative Procedure, and Articles 10 § 4 and 11 of the Law on State Secrets. It ruled that no decision of a court could be based solely on information which constituted a State secret and which had not been disclosed to the parties to the case. In the ruling no. A822-326/2009 of 8 October 2009 the Supreme Administrative Court confirmed the above principles.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-109895
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: ADMISSIBILITY
DATE: 2012
DOCNAME: SHEFER v. RUSSIA
IMPORTANCE: 3
CONCLUSION: Inadmissible
JUDGES: Anatoly Kovler;Elisabeth Steiner;Erik Møse;Julia Laffranque;Mirjana Lazarova Trajkovska;Peer Lorenzen
TEXT: 1. The applicant, Ms Nina Vasilyevna Shefer, is a Russian national who was born in 1969 and lives in Barnaul, Altay Region. The Russian Government (“the Government”) are represented by Mr G. Matyushkin, the Representative of the Russian Federation at the European Court of Human Rights.
2. The facts of the case, as submitted by the parties, may be summarised as follows.
3. By the judgment of 16 March 2004 the justice of peace of the 4th Court Circuit of the Zheleznodorozhniy District of Barnaul awarded the applicant damages in the total amount of 1,193.60 Russian roubles (RUB) against Mr K. The writ of execution for the abovementioned amount was issued on 31 May 2004.
4. On 10 June 2004 the Zheleznodorozhniy District Bailiffs’ Service returned the unenforced writ of execution to the applicant because the document did not contain the information on the date and place of birth of the debtor and his place of work.
5. The applicant complained about the bailiff’s actions to court. On 27 July 2004 the Zheleznodorozhniy District Court of Barnaul allowed the complaint in part. The court ruled the bailiff’s actions unlawful, annulled the decision to return the writ of execution and ordered the bailiff to institute enforcement proceedings. On 15 September 2004 the Altay Regional Court, acting on appeal, found that the writ of execution had indeed been defective and that the bailiff could have returned it for correction to the court, but not to the applicant. The appeal court removed the order to institute enforcement proceedings upholding the rest of the judgment. The applicant did not re-submit the writ of execution to the bailiffs’ service as it was prescribed by the domestic law.
6. On 9 March 2011 the justice of peace of the 4th Court Circuit of the Zheleznodorozhniy District of Barnaul, acting on the applicant’s claim, ordered indexation of the recovered amount to RUB 2,417.60 (61 euros (EUR)).
7. It appears that the judgment has not been enforced to date.


ITEMID: 001-108787
LANGUAGEISOCODE: ENG
RESPONDENT: MDA
BRANCH: CHAMBER
DATE: 2012
DOCNAME: CASE OF BREGA AND OTHERS v. MOLDOVA
IMPORTANCE: 3
CONCLUSION: Remainder inadmissible;Violation of Article 11 - Freedom of assembly and association (Article 11-1 - Freedom of peaceful assembly);Violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention);Non-pecuniary damage - award
JUDGES: Alvina Gyulumyan;Corneliu Bîrsan;Ján Šikuta;Josep Casadevall;Luis López Guerra;Mihai Poalelungi;Nona Tsotsoria
TEXT: 5. The applicants were born in 1975, 1953, 1969 and 1981 respectively, live in Pepeni, Chişinău, Ungheni and Chişinău respectively and are all members of Hyde Park, a Chişinău-based non-governmental organisation.
6. On 27 March 2008 the first and the fourth applicants participated in a public gathering in the Stefan cel Mare park in Chişinău on the occasion of the anniversary of the 1918 reunification of Bessarabia with Romania. The demonstration had been authorised by the Chişinău Municipality. At approximately 11.30 a.m. the applicants were arrested and taken to the police station, where they were charged with resisting arrest and insulting police officers.
7. In a video filmed by the applicants, one of the police officers can be seen requesting identity papers from one of the participants in the demonstration. After the identity card is presented to the police officer, one of the police officers orders the applicants to follow him to the police station and the applicants comply without any resistance. The applicants were released several hours later.
8. On 26 May 2008 the Buiucani District Court finally acquitted the applicants of all charges in view of a lack of evidence against them. The court found that the accusations made against the applicants were groundless as they were not confirmed by any of the witnesses.
9. On an unspecified date one of the applicants lodged a criminal complaint against the police officers who had arrested them. However, on 30 May 2008 the complaint was dismissed as manifestly ill-founded.
10. On 22 April 2008 a new Assemblies Act entered into force under which no authorisation was needed for spontaneous gatherings and for gatherings with a limited number of participants. On the same date, at approximately 10.40 a.m., the first, second and fourth applicants organised a demonstration in front of the residence of the President of Moldova. According to them, they intended to express their joy at the entering into force of the new Assemblies Act and to encourage the people to assemble freely. After a short time the applicants were approached by several police officers who ordered them to leave. The applicants refused and argued that according to the new law they had a right to protest peacefully without any authorisation. Later the applicants were arrested and taken to the police station. They were held for several hours and charged with the offences of holding an unauthorised demonstration, resisting arrest and insulting police officers.
11. On 8 May 2008 the Buiucani District Court acquitted the applicants of all charges in view of a lack of incriminating evidence against them. The court found that the applicants had a legal right to protest in front of the residence of the President of Moldova without any authorisation and that the charges concerning resisting and insulting police officers were groundless.
12. On an unspecified date the applicants lodged a criminal complaint against the police officers who had arrested them. However, it was dismissed as manifestly ill-founded.
13. On 30 April 2008 the National Television company organised a celebration on the occasion of its fiftieth anniversary. A member of Hyde Park, O.B., who is not an applicant in this case, attempted to protest against censorship at National Television in front of the concert hall in which the celebration was taking place. He was draped in a banner bearing the inscription “50 years of lies” and was accompanied by the first, second and third applicants, one of whom was filming the event.
14. After approaching the concert hall, O.B. was approached by a group of police officers who surrounded him and ordered him to vacate the premises of the concert hall. O.B. and the three applicants entered into a verbal clash with the police officers and refused to leave. They argued that they had the right to protest and that the actions of the police were unlawful. After several minutes of dispute O.B. was physically attacked by a person in plain clothes. O.B. and the applicants requested the assistance of the police and shouted that the attack had been provoked by the police. They were immediately arrested and taken to the police station, where they were charged with the offences of holding an unauthorised demonstration, resisting arrest and insulting police officers. They were released several hours later.
15. On 18 June 2008 all the applicants and O.B. were finally acquitted by the Chişinău Court of Appeal of all charges in view of a lack of incriminating evidence against them. The court reached this conclusion after viewing the video of the event and concluding that the applicants’ demonstration had been peaceful and that they had been attacked by a another individual.
16. On an unspecified date the applicants lodged a criminal complaint against the police officers who had arrested them. However, it was dismissed as manifestly ill-founded.
17. In December 2008 the Government decided to celebrate Christmas exclusively on 7 January, according to the old religious calendar, and to have a Christmas tree installed in the central square of Chişinău only in the last few days of December so as to bypass the celebration of Christmas on 25 December by the adherents of the new religious calendar.
18. In spite of that decision the Chişinău local government, which was represented by a political majority different from that of the central Government, decided to install a Christmas tree in the middle of December and to organise celebrations on the occasion of the new religious calendar Christmas. On 16 December 2008 a truck transporting the municipality’s Christmas tree was stopped by the police and the tree was confiscated.
19. In the morning of 18 December 2008 a group of Hyde Park members, including the first and second applicants, attempted to organise a protest demonstration in front of the Ministry of Internal Affairs in order to express their concern about the actions of the police. The first applicant was arrested on the street while walking towards the building of the Ministry of Internal Affairs carrying a small Christmas tree. He was taken to the police station and charged with the offence of organising an unauthorised demonstration. He was released several hours later. The second applicant was near a trolleybus stop when a group of six plain-clothes police officers forced him into a trolleybus. They cornered him and, in spite of his protests, released him only approximately eight minutes and several stops later. The applicants submitted a video of this.
20. On 18 December 2008 the first applicant was acquitted in view of a lack of incriminating evidence against him.
21. On an unspecified date the first and second applicants lodged a criminal complaint against the police officers. However, on 2 February 2009 the complaint was dismissed as manifestly ill-founded.
22. On 3 February 2009 the first applicant organised a protest demonstration in front of the Prosecutor General’s Office together with approximately twenty participants who are not applicants in this case. The aim of the demonstration was to denounce the inaction of the Prosecutor General’s Office in connection with abuses by the police. Several minutes after the beginning of the demonstration the protesters were attacked by seven men wearing masks, who started to beat them up and spray them with tear gas. The protesters defended themselves and managed to immobilise two attackers. One of the attackers admitted to having been paid 1,000 Moldovan lei (MDL) by an unknown person to participate in the attack. A police unit patrolling nearby did not intervene to put an end to the clash between the protesters and the attackers. The protesters called the police and requested the assistance of the police officers who were guarding the Prosecutor General’s Office, but to no avail.
23. According to the applicants, the organisers of the demonstration lodged a criminal complaint with the Prosecutor General’s Office; however, no action was taken. The applicants were unable to present proof that they had lodged the complaint and argued that the relevant documents had been seized by the police on the occasion of an unlawful search of Hyde Park’s premises.
24. The Government disputed that the applicants had complained to the Prosecutor’s Office in respect of the events of 3 February 2009.
25. Article 32 of the Constitution of the Republic of Moldova (on freedom of opinion and of expression) reads as follows:
“(1) Each citizen is guaranteed freedom of thought and of opinion, as well as freedom of expression in public through words, images or other available means.
(2) Freedom of expression shall not be prejudicial to the honour or dignity of others or the right of others to have their own opinion.
(3) The law prohibits and punishes the calling into question and defamation of the State and the nation, calls to war and aggression, national, racial or religious hatred, and incitement to discrimination, territorial separatism, or public violence, as well as any other expression which endangers the constitutional order.”
Article 40 (on freedom of assembly) provides:
“All meetings, demonstrations, rallies, processions or any other assemblies are free, but they may be organised and take place only peacefully and without the use of weapons.”
26. The relevant provisions of the Assemblies Act of 21 June 1995 read as follows:
(1) Assemblies shall be conducted peacefully, without any sort of weapons, and the protection of participants and the environment must be ensured, without impeding the normal use of public highways, road traffic or the operation of businesses, and without degenerating into acts of violence capable of endangering public order or the physical integrity or life of persons or their property.
Assemblies shall be suspended in the following circumstances:
(a) denial and defamation of the State and of the people;
(b) incitement to war or aggression and incitement to hatred on ethnic, racial or religious grounds;
c) incitement to discrimination, territorial separatism or public violence;
d) acts that undermine the constitutional order.
(1) Assemblies may be conducted in squares, streets, parks and other public places in cities, towns and villages, and also in public buildings.
(2) It shall be forbidden to conduct an assembly in the buildings of public authorities, local authorities, prosecutors’ offices, courts or companies with armed security.
(3) It shall be forbidden to conduct assemblies:
(a) within fifty metres of the Parliament building, the residence of the President of Moldova, the seat of the Government, the Constitutional Court and the Supreme Court of Justice;
(b) within twenty-five metres of the buildings of the central administrative authority, the local public authorities, courts, prosecutors’ offices, police stations, prisons and social rehabilitation institutions, military installations, railway stations, airports, hospitals, companies which use dangerous equipment and machines, and diplomatic institutions.
(4) Free access to the premises of the institutions listed in subsection (3) shall be guaranteed.
(5) The local public authorities may, if the organisers agree, establish places or buildings for permanent assemblies.
(1) Not later than fifteen days prior to the date of the assembly, the organiser shall submit a notification to the Municipal Council, a specimen of which is set out in the annex which forms an integral part of this Act.
(2) The prior notification shall indicate:
(a) the name of the organiser of the assembly and the aim of the assembly;
(b) the date, starting time and finishing time of the assembly;
(c) the location of the assembly and the access and return routes;
(d) the manner in which the assembly is to take place;
(e) the approximate number of participants;
(f) the persons who are to be responsible for the proper conduct of the assembly;
(g) the services the organiser of the assembly asks the Municipal Council to provide.
(3) If the situation so requires, the Municipal Council may alter certain aspects of the prior notification with the agreement of the organiser of the assembly.
(1) The prior notification shall be examined by the local government of the town or village at the latest five days before the date of the assembly.
(2) When the prior notification is considered at an ordinary or extraordinary meeting of the Municipal Council, the discussion shall deal with the form, timetable, location and other conditions for the conduct of the assembly, and the decision taken shall take account of the specific situation.
(6) The local authorities may reject an application to hold an assembly only if, after consulting the police, they have obtained convincing evidence that the provisions of sections 6 and 7 will be breached with serious consequences for society.
(1) A decision rejecting an application to hold an assembly shall be reasoned and presented in writing. It shall contain reasons for the refusal to issue the authorisation...
(1) The organiser of the assembly may challenge the refusal in the administrative courts.
Section 19
Participants in the assembly are required:
(a) to respect the present Act and other laws referred to herein;
(b) to respect the instructions of the organiser of the assembly, and decisions of the municipality or police;
...
(e) to leave the assembly if asked by the organiser, the municipality or the police.”
27. On 22 February 2008 Parliament adopted a new Assemblies Act under which no authorisation was needed for the holding of demonstrations with less than fifty participants.
28. The relevant provisions of the Criminal Code read as follows:
(1) Illegal deprivation of liberty, other than kidnapping, shall be punishable by 120-240 hours of community work or imprisonment for up to two years.
(2) The same offence committed
b) against two or more persons;
d) by two or more persons;
shall be punishable by imprisonment for three to eight years.
(1) Violation of the right to freedom of assembly by way of the illegal hindering of a demonstration, rally or act of protest, or the preventing of persons from taking part in them ... :
a) committed by an official;
b) committed by two or more persons;
c) accompanied by acts of violence which do not pose a danger to life or health,
shall be punishable by a fine of four to eight thousand Moldovan lei or by community work of 180-240 hours, or by imprisonment for up to two years.”
29. The relevant provisions of the Code of Administrative Offences (“the CAO”), in force at the material time, read:
2. The organisation and holding of an assembly without prior notification of the Municipal Council or without authorisation from the Council, or in breach of the conditions (manner, place, time) concerning the conduct of meetings indicated in the authorisation shall be punishable by a fine to be imposed on the organisers (leaders) of the assembly in an amount equal to between MDL 500 and 1,000. ...
4. Active participation in an assembly referred to in paragraph 2 of the present Article shall be punishable by a fine in an amount between MDL 200 and 300.
Resisting a police officer ... in the exercise of his or her duties of ensuring public order and the fight against crime shall be punishable by a fine of up to MDL 300 or detention for up to thirty days.
Insulting police officers ... in the exercise of their duties ... shall be punishable by a fine of up to MDL 200 or imprisonment for up to fifteen days.”
According to Article 249 of the CAO, persons who disobey in bad faith the lawful orders of police officers, or resist or insult police officers, may be detained until their case is examined by a court.
30. The relevant provisions of Law no. 1545 (1998) on compensation for damage caused by the illegal acts of the criminal investigation organs, prosecution and courts have been set out in this Court’s judgment in Sarban v. Moldova, no. 3456/05, § 54, 4 October 2005. In the case of Belicevecen v. the Ministry of Finance (no. 2ra-1171/07, 4 July 2007) the Supreme Court of Justice found that a person could claim damages on the basis of Law no. 1545 (1998) only if he or she had been fully acquitted of all the charges against him or her. Since Mr Belicevecen had been found guilty in respect of one of the charges brought against him, he could not claim any damages.
VIOLATED_ARTICLES: 11
5
VIOLATED_PARAGRAPHS: 11-1
5-1


ITEMID: 001-107022
LANGUAGEISOCODE: ENG
RESPONDENT: AUT
BRANCH: CHAMBER
DATE: 2011
DOCNAME: CASE OF GRAZIANI-WEISS v. AUSTRIA
IMPORTANCE: 2
CONCLUSION: No violation of Art. 4;No violation of Art. 14+4
JUDGES: András Sajó;David Thór Björgvinsson;Elisabeth Steiner;Françoise Tulkens;Giorgio Malinverni;Guido Raimondi
TEXT: 5. The applicant was born in 1963 and lives in Linz.
6. The applicant is a practising lawyer. In July 2005 the applicant was informed by the Linz District Court that it planned to appoint him as legal guardian (Sachwalter) for K, who was suffering from a mental illness, and asked him to comment on the proposal. According to the document supplied by the court, there were no known relatives of K who could become guardians, and the association of guardians (Verein für Sachwalterschaft) had informed the court that it lacked the capacity to take over guardianship.
7. The applicant submitted comments, stating that his wife objected to the proposal, since K might call the applicant at weekends and disturb their family life. His professional and spare-time activities would also not allow him to take on another duty. He added that he was not trained to deal with persons with a mental illness such as K and was not interested in acquiring the necessary training either. Furthermore, he argued that his professional insurance would not cover the risks associated with being a legal guardian; therefore, he would have to enter into a separate insurance agreement. The costs would have to be borne by K, who – according to the court file which the applicant had received – did not appear to have the money to cover them.
8. By a decision of the Linz District Court of 15 September 2005 the applicant was appointed as legal guardian for K in matters of management of income and representation before the courts and other authorities. The court found that no other person, such as a relative, was suitable to be K’s legal guardian. The association of guardians did not have the capacity to appoint a legal guardian for K. The applicant was the next person on the list of possible legal guardians. This list, which is kept by the Linz District Court, contains the names of all lawyers and public notaries in the district. The court also found that the reasons submitted by the applicant were not sufficient to justify his refusal; it held that neither having two children, nor leading a church choir, nor being member of a supervisory board constituted a valid reason as to why he should be declared unsuitable for the task. The court also held that the duty for lawyers to act as legal guardians did not constitute forced labour, as helping weaker members of society was a civic duty and for practising lawyers, rendering help in legal matters was part of their core professional duties and was comparable to a normal civic obligation within the meaning of Article 4 § 2 of the Convention.
9. The applicant appealed against the decision to the Linz Regional Court, arguing that if the duty were to constitute a normal civic obligation, it was discriminatory to put only lawyers and public notaries on the list, as other persons also had knowledge of law, such as judges, public servants who had studied law or lawyers working in companies. He also alleged that the tasks he had been ordered to perform did not require special legal knowledge as any adult person could manage their income; he further claimed that no court proceedings in which K was a party were pending, and thus it was not necessary to appoint a practising lawyer as his guardian.
10. On 15 December 2005 the Linz Regional Court upheld the decision of the Linz District Court, holding that there was at least one trial involving K pending, and that any other tasks the applicant would have to perform in the present case were limited and did not place an excessive burden on him.
11. The applicant lodged an extraordinary appeal on points of law to the Supreme Court, alleging a violation of Article 14 in conjunction with Article 4 of the Convention, as only lawyers and their associates (Rechtsanwaltsanwärter) and public notaries and their associates (Notariatskandidaten), but no other persons who had studied law, were placed on the list of possible guardians. He also complained that lawyers were in principle entitled to remuneration for their services, but this applied only in so far as this would not endanger the fulfilment of the basic needs of the person placed under guardianship. By a decision of 7 March 2006 the Supreme Court refused to deal with the matter, finding that it did not raise an important question of law.
12. The rules on guardianship are contained in the Civil Code (Allgemeines Bürgerliches Gesetzbuch), the relevant part of which was recently amended, and the Non-Contentious Proceedings Act (Außerstreitgesetz).
13. The law in force at the relevant time provided that adult persons of unsound mind who could not handle all or some of their own affairs without the risk of disadvantages for them should be placed under guardianship (section 273 of the Civil Code).
14. There were varying degrees of guardianship, ranging from a duty to carry out one specific transaction or enforce or contest a specific claim, to the carrying out of certain types of duties, such as management of a person’s entire assets or parts thereof, or taking care of all the affairs of the person concerned (section 272 of the Civil Code).
15. Placement under guardianship was not permissible if and in so far as the person concerned could take care of his or her affairs to a sufficient degree with assistance, especially from the family or from institutions for people with disabilities (section 273 § 2 of the Civil Code).
16. Section 281 of the Civil Code provided that guardians should be persons close to the persons placed under guardianship, unless the wellbeing of the person concerned required otherwise (§ 1); if this was beneficial to the well-being of a person under guardianship, a person from a guardians’ association should be nominated as a guardian, where possible (§ 2). If taking care of the affairs of the person concerned required considerable knowledge of law, a practising lawyer (or lawyer’s associate) or public notary (or notary’s associate) was to be appointed as guardian (§ 3).
17. Section 282 § 2 of the Civil Code provided that the guardian should be in contact with the person under guardianship and should try to ensure that medical and social assistance was given to the person concerned.
18. A person whom the court planned to appoint as a guardian had to notify the court of any circumstances that might prevent him or her from carrying out the task. A particularly suitable person – according to the caselaw, a person belonging to the groups mentioned in section 281 § 3 of the Civil Code (see paragraph 16 above) – could refuse to carry out the task only if it was unacceptable to him or her (section 189 §§ 1 and 2 of the Civil Code).
19. The guardian was entitled to remuneration, fees and reimbursement of expenses. If the guardian used his special professional knowledge and skills for tasks for which the services of another person would otherwise have to be engaged, the guardian was entitled to adequate remuneration for these tasks. Remuneration could only be granted in so far as the basic needs of the person under guardianship could still be satisfied from the person’s income (sections 266 and 267 of the Civil Code).
20. Section 130 of the Non-Contentious Proceedings Act (Außerstreitgesetz) provided that a guardian had to report to the court about contacts with the person concerned, the life the person led and the person’s physical and mental state. The reports had to be drawn up at reasonable intervals, at least once every three years. The court could also require the guardian to draw up a report. Further duties listed in the Non-Contentious Proceedings Act concerned the keeping of accounts for the assets and income of the person under guardianship; the statements of account were subject to the court’s approval.
21. Rule 86 § 2 of the Rules of Procedure of Courts of First and Second Instance (Geschäftsordnung für die Gerichte I. und II. Instanz) provides that each court has to have a list of lawyers and public notaries acting in the appropriate district; courts have to ensure that there is a reasonable alternation in the persons appointed as guardians.
22. The Lawyers Act (Rechtsanwaltsordnung) contains the following provisions on the rights and duties of practising lawyers in Austria:
“(1) The right of a lawyer to represent parties shall extend to all courts and authorities of the Republic of Austria and shall include the authority to represent parties in a professional capacity in all judicial and extrajudicial and in all public and private matters. ...
(2) The authority to provide comprehensive professional representation to parties within the meaning of subsection (1) above shall be reserved for lawyers. This is without prejudice to the professional powers deriving from the Austrian regulations governing the professions of notaries, patent agents, chartered accountants and civil engineers.”
“(1) Before being admitted to practise, all lawyers shall be required to furnish proof to the Executive Committee of the Bar Association that they have taken out civilliability insurance with an insurance company authorised to carry on business in Austria to cover any claims for damages that may be brought against them as a result of their professional activities. They shall maintain the insurance cover throughout the duration of their professional activities and shall furnish proof thereof to the Bar Association on request.”
NON_VIOLATED_ARTICLES: 14
4


ITEMID: 001-57908
LANGUAGEISOCODE: ENG
RESPONDENT: AUT
BRANCH: CHAMBER
DATE: 1994
DOCNAME: CASE OF VEREINIGUNG DEMOKRATISCHER SOLDATEN ÖSTERREICHS AND GUBI v. AUSTRIA
IMPORTANCE: 3
CONCLUSION: Violation of Art. 10;Violation of Art. 13 (first applicant);No violation of Art. 13 (second applicant);Not necessary to examine Art. 14+10;Pecuniary damage - claim dismissed;Non-pecuniary damage - finding of violation sufficient;Costs and expenses partial award - domestic proceedings;Costs and expenses partial award - Convention proceedings
JUDGES: C. Russo
TEXT: 7. The first applicant, a Vienna-based association, published a monthly magazine aimed at the soldiers serving in the Austrian army and entitled der Igel ("The Hedgehog"). It contained information and articles - often of a critical nature - on military life.
8. On 27 July 1987 the association requested the Federal Minister for Defence (Bundesminister für Landesverteidigung) to have der Igel distributed in the barracks in the same way as the only other two military magazines published by private associations, Miliz-Impuls and Visier. The army had adopted the practice of sending these magazines out, alternately and at its own expense, with the official information bulletin distributed to all conscripts (Miliz-Information).
The minister did not reply to this request. When questioned by members of parliament, he stated in a letter of 10 May 1989 that he would not authorise the distribution of der Igel in barracks. In his view, section 46 para. 3 of the Armed Forces Act (Wehrgesetz, see paragraph 18 below) conferred on all armed forces personnel the right to receive without any restriction, through sources accessible to the public, information on political events. However, on military premises the only publications that could be supplied were those which identified at least to some extent with the constitutional duties of the army, did not damage its reputation and did not lend column space to political parties. Even critical magazines such as the journal Hallo of the trade union youth organisation would not be banned if they respected these conditions. Der Igel, on the other hand, did not comply with them. The minister derived authority for his decision in this matter from Article 79 of the Constitution (Bundesverfassungsgesetz) and sections 44 para. 1 and 46 of the Armed Forces Act, Article 116 of the Criminal Code (Strafgesetzbuch) and Regulation 3 para. 1 of the General Army Regulations (Allgemeine Dienstvorschriften für das Bundesheer, see paragraphs 17-20 below).
9. The second applicant, a member of the VDSÖ, began his national service on 1 July 1987 at the Schwarzenberg barracks in Salzbourg. On 29 July, on the occasion of his taking the oath, he made a protest directed against the President of the Republic. Over the following months, he lodged several complaints, published with twenty-one of his fellow conscripts an open letter criticising the number of fatigue duties to which he was assigned and circulated a petition in support of a conscientious objector.
On 1, 9 and 22 July he was personally informed of the content of the military law applicable to his situation.
10. On 29 December 1987, while distributing issue no. 3/87 of der Igel in the barracks, he was ordered by an officer to cease.
In its editorial, the issue in question mentioned, as being one of the aims of the VDSÖ, co-operation between conscripts and the cadres on the basis of their joint interests and of mutual respect. Some articles adopted a critical stance; they dealt with, among other things, military training, the proceedings resulting from a complaint lodged by Mr Gubi and the principles governing national service. The other articles discussed various contributions that had appeared in the press, the congress of the trade union youth movement, the aims and the activities of the VDSÖ and the complaint of a conscript whose pay had been reduced following alleged loss of equipment.
11. On 12 January 1988 another officer informed Mr Gubi of the content of the circulars of 1975 and 1987 and of the regulations of the Schwarzenberg barracks, as amended on 4 January 1988, which prohibited any distribution or despatching within the barracks of publications without the authorisation of the commanding officer (see paragraph 20 below).
12. On 22 January 1988 Mr Gubi complained about this ban and about the order of 29 December 1987 (see paragraph 10 above) to the Military Complaints Board (Beschwerdekommission in militärischen Angelegenheiten) at the Federal Ministry of Defence.
On 7 April the Complaints Division (Beschwerdeabteilung) at the ministry rejected the applicant’s complaint, in accordance with the Complaints Board’s recommendation. In its view, the contested order was validly based on a 1987 circular of the Second Army Corps (Korpskommando II), containing instructions regarding the distribution of printed matter, which were themselves based on Article 5 of the 1867 Basic Law (Staatsgrundgesetz über die allgemeinen Rechte der Staatsbürger), Regulation 19 of the General Army Regulations and section 13 of the Armed Forces Act (see paragraphs 15 and 18-20 below). The first of those provisions affords the same protection to the property of public-law legal persons as that guaranteed to the property of private individuals; accordingly, the Schwarzenberg barracks were to be regarded as the property of the Federal State, whose rights were exercised by the commanding officer.
The freedom of expression secured under Article 13 of the 1867 Basic Law was subject to "statutory limits" (gesetzliche Schranken) such as those which stemmed from the duty of discretion and obedience laid down in sections 17 and 44 of the Armed Forces Act and derived from the very nature of this special relationship of subordination (besonderes Gewaltverhältnis). The contested measures had therefore in no way interfered with the freedom in question.
13. Mr Gubi then applied to the Constitutional Court (Verfassungsgerichtshof). On 26 September it declined to entertain his appeal on the ground that it did not raise genuine constitutional issues and had insufficient prospects of success.
14. The same day, however, the Constitutional Court quashed the decision of 15 February 1988 whereby the commanding officer of battalion no. 3 had confirmed the three days’ custody imposed on the applicant as a disciplinary penalty for having distributed der Igel in the barracks. It found that the provisions which Mr Gubi was accused of infringing, the 1975 and 1987 circulars (see paragraph 20 below), were not binding on him but on the military authorities. This was not the case in regard to the relevant provisions of the Schwarzenberg barracks regulations, but these rules had been introduced on 4 January 1988 and were therefore not yet in force at the material time.
15. Article 5 of the Basic Law of 21 December 1867 on the general rights of citizens protects property.
16. Article 13 provides as follows:
"Subject to statutory limits, everyone has the right to express freely his opinion orally, in writing, in the printed word or through graphic expression. The Press may not be censored or restricted by a system of licences ... "
17. Article 79 of the Federal Constitution describes the general duties of the Austrian armed forces.
18. At the material time the rights and obligations of military personnel were governed by sections 44 to 46 of the 1978 Armed Forces Act. According to this statute, soldiers are under a duty to support the army in the performance of its tasks and to refrain from doing anything which could damage its reputation (section 44 para. 1). They have the right to submit requests and complaints and to file appeals (section 44 para. 4). They enjoy the same political rights as civilians (section 46 para. 2). However, the army must not be involved in any political activity and may not be used for political ends (section 46 para. 1). Consequently, such activities while on duty and on military premises are prohibited, with the exception of those which consist in obtaining information as an individual on political events through sources accessible to the public (section 46 para. 3).
19. The General Army Regulations, issued by the Federal Ministry of Defence, set out the obligations attaching to national service. They provide, inter alia, that servicemen must always be ready to fulfil their duties in the best possible way and must refrain from doing anything which could damage the reputation of the army and undermine the confidence of the population in the defence of the country (Regulation 3 para. 1). Servicemen have a special relationship of subordination in regard to the Austrian Republic. That relationship requires of them, in addition to the defence of the democratic institutions, discipline, comradeship, obedience, vigilance, courage and discretion (Regulation 3 para. 2). Under Regulation 19 para. 2 barracks’ commanders are bound to take all the measures necessary to maintain order and military security in the premises in question; to this end they are under a duty to issue rules (Kasernordnung) governing inter alia access to the barracks (Regulation 19 para. 3).
20. By a circular of the Federal Ministry of Defence of 14 March 1975 the army general staff (Armeekommando) instructed commanding officers to take preventive measures in respect of publications denigrating the army (negatives wehrpolitisches Gedankengut). They were, among other things, to ban their distribution and posting up in military areas.
A circular from the general staff of the Second Army Corps) of 17 December 1987 instructed the same officers to insert in the barracks rules a prohibition on the distribution or posting up without the commanding officer’s authorisation of any non-official publication. The Schwarzenberg barracks rules were amended accordingly on 4 January 1988.
21. The Constitutional Court examines, on an application (Beschwerde), whether an administrative measure (Bescheid) has infringed a right guaranteed to the applicant by the Constitution, or whether it has applied a decree (Verordnung) that is contrary to the law, an Act contrary to the Constitution or an international treaty incompatible with Austrian law (Article 144 para. 1 of the Federal Constitution).
VIOLATED_ARTICLES: 10
13
NON_VIOLATED_ARTICLES: 13