ITEMID: 001-60979
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: CHAMBER
DATE: 2003
DOCNAME: CASE OF ÖCALAN v. TURKEY
IMPORTANCE: 2
CONCLUSION: Preliminary objection dismissed (Article 35-1 - Exhaustion of domestic remedies);Violation of Article 5 - Right to liberty and security (Article 5-4 - Review of lawfulness of detention);Violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention);Violation of Article 5 - Right to liberty and security (Article 5-3 - Brought promptly before judge or other officer);Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Impartial tribunal;Independent tribunal);Violation of Article 6+6-3 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing;Equality of arms) (Article 6 - Right to a fair trial;Article 6-3 - Rights of defence;Article 6-3-b - Adequate facilities;Adequate time;Article 6-3-c - Defence through legal assistance);No violation of Article 2 - Right to life (Article 2-1 - Death penalty) (Substantive aspect);No violation of Article 14+2 - Prohibition of discrimination (Article 14 - Discrimination) (Article 2 - Right to life;Article 2-1 - Death penalty);No violation of Article 3 - Prohibition of torture (Article 3 - Inhuman punishment) (Substantive aspect);Violation of Article 3 - Prohibition of torture (Article 3 - Inhuman punishment) (Substantive aspect);No violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive aspect);No violation of Article 34 - Individual applications (Article 34 - Hinder the exercise of the right of application);Pecuniary damage - finding of violation sufficient (Article 41 - Non-pecuniary damage;Just satisfaction)
JUDGES: Elisabeth Palm;Gaukur Jörundsson
TEXT: 8. The applicant is a Turkish national who was born in 1949 and is currently being held in İmralı Prison (Mudanya, Bursa, Turkey). Prior to his arrest he was the leader of the Workers' Party of Kurdistan (“the PKK”).
The facts of the case, as submitted by the parties, may be summarised as follows.
9. On 9 October 1998 the applicant was expelled from Syria, where he had been living for many years. He arrived the same day in Greece, where the Greek authorities requested him to leave Greek territory within two hours and refused his application for political asylum. On 10 October 1998 the applicant travelled to Moscow in an aircraft that had been chartered by the Greek secret services. His application for political asylum in Russia was accepted by the Duma, but the Russian Prime Minister did not implement that decision.
10. On 12 November 1998 the applicant went to Rome where he made an application for political asylum. The Italian authorities initially detained him but subsequently placed him under house arrest. Although they refused to extradite him to Turkey, they also rejected his application for refugee status and the applicant had to bow to pressure for him to leave Italy. After spending either one or two days in Russia he returned to Greece, probably on 1 February 1999. The following day (2 February 1999) the applicant was taken to Kenya. He was met at Nairobi Airport by officials from the Greek Embassy and put up at the Greek Ambassador's residence. He lodged an application with the Greek Ambassador for political asylum in Greece, but never received a reply.
11. On 15 February 1999 the Kenyan Ministry of Foreign Affairs announced that Mr Öcalan had been on board an aircraft that had landed at Nairobi on 2 February 1999 and had entered Kenyan territory accompanied by Greek officials without declaring his identity or going through passport control. The announcement added that the Minister of Foreign Affairs had convened the Greek Ambassador in Nairobi in order to elicit information about the applicant's identity. After initially stating that the new arrival was not Mr Öcalan, on being pressed by the Kenyan authorities the Ambassador had gone on to acknowledge that he was. The Minister of Foreign Affairs had been informed by the Greek Ambassador that the authorities in Athens agreed to arrange for Mr Öcalan's departure from Kenya.
The Kenyan Minister of Foreign Affairs also said that overseas Kenyan diplomatic missions had been the target of terrorist attacks and that the applicant's presence in Kenya constituted a major security risk. In those circumstances, the Kenyan Government were surprised that Greece, a State with which it enjoyed friendly relations, could knowingly have put Kenya in such a difficult position, exposing it to suspicion and the risk of attacks. Referring to the Greek Ambassador's role in the events, the Kenyan Government said that they had serious reservations about his credibility and had requested his immediate recall.
The Kenyan Minister of Foreign Affairs added that the Kenyan authorities had played no part in the applicant's arrest and had had no say in his final destination. The Minister had not been informed of any operations by Turkish security forces at the time of the applicant's departure and there had been no consultations between the Kenyan and Turkish Governments on the subject.
12. On the final day of his stay in Nairobi, the applicant was informed by the Greek Ambassador after the latter had returned from a meeting with the Kenyan Minister of Foreign Affairs that he was free to leave for the destination of his choice and that the Netherlands was prepared to accept him.
On 15 February 1999 Kenyan officials went to the Greek Embassy to take the applicant to the airport. The Greek Ambassador said that he wished to accompany the applicant to the airport in person and a discussion between the Ambassador and the Kenyan officials ensued. In the end, the applicant got into a car driven by a Kenyan official. On the way to the airport the car in which the applicant was travelling left the convoy and, taking a route reserved for security personnel in the international transit area of Nairobi Airport, took him to an aircraft in which Turkish officials were waiting for him. The applicant was then arrested after boarding the aircraft at approximately 8 p.m.
13. The Turkish courts had issued seven warrants for Mr Öcalan's arrest and a wanted notice (“red notice”) had been circulated by Interpol. In each of those documents the applicant was accused of founding an armed gang in order to destroy the territorial integrity of the State and of instigating various terrorist acts that had resulted in loss of life.
From the moment of his arrest the applicant was accompanied by an army doctor throughout the flight from Kenya to Turkey. A video recording and photographs taken of Mr Öcalan in the aircraft for use by the police were leaked to the press and published. In the meantime, the inmates of İmralı Prison were transferred to other prisons.
14. The applicant was kept blindfolded throughout the flight except when the Turkish officials wore masks. The blindfold was removed directly the officials put their masks on. According to the Government, the blindfold was removed as soon as the aircraft entered Turkish airspace.
The applicant was taken into custody at İmralı Prison on 16 February 1999. While being transferred from the airport in Turkey to İmralı Prison he wore a hood. On photographs that were taken on the island of İmralı in Turkey, the applicant appears without a hood or blindfold. He later said that he had been given tranquillisers, probably at the Greek Embassy in Nairobi.
15. From 16 February 1999 onwards the applicant was interrogated by members of the security forces. On 20 February 1999 a judge ruled on the basis of information in the case file that he should remain in police custody for a further three days as the interrogation had not been completed.
16. The judges and prosecutors, who were from the Ankara State Security Court, arrived on the island of İmralı on 21 February 1999.
17. According to the applicant, sixteen lawyers instructed by his family sought leave from the State Security Court on 22 February 1999 to see him. They were told orally that only one lawyer would be allowed access. Lawyers who went to Mudanya (the embarkation point for the island of İmralı) on 23 February 1999 were told by the administrative authorities that they could not visit the applicant. The applicant also alleges that his lawyers were harassed by a crowd at the instigation of plain-clothes police officers or at least with their tacit approval.
18. As soon as the applicant was detained, the island of İmralı was decreed a prohibited military zone. According to the applicant, the security arrangements in his case were managed by a “crisis desk” set up at Mudanya. It was the crisis desk that was responsible for granting lawyers and other visitors access to the applicant. According to the Government, special measures were taken to ensure the applicant's safety. He had many enemies who might have been tempted to make an attempt on his life. Likewise according to the Government, it was precisely for security reasons that lawyers were searched.
19. On 22 February 1999 the Public Prosecutor at the Ankara State Security Court questioned the applicant and took a statement from him as an accused. The applicant told the prosecutor that he was the founder of the PKK and its current leader. Initially, his and the PKK's aim had been to found an independent Kurdish State, but with the passage of time they had changed their objective and sought to secure a share of power for the Kurds as a free people who had played an important role in the founding of the Republic. The applicant confessed that village guards were a prime target for the PKK. He also confirmed that the PKK used violent methods against the civil population, in particular from 1987 onwards; he was personally opposed to such methods and had tried in vain to prevent their being used. He told the prosecutor that the warlords who wanted to seize power within the PKK had exerted some of their pressure on the Kurdish population; some of them had been tried and found guilty by the PKK and had been executed with his personal approval. He acknowledged that the Turkish Government's estimate of the number of those killed or wounded as a result of the PKK's activities was fairly accurate; that the actual number might even be higher; and that he had ordered the attacks as part of the armed struggle being waged by the PKK. He added that he had decided in 1993 to declare a ceasefire, acting on a request by the Turkish President, Mr Özal, which had been conveyed to him by the Kurdish leader Celal Talabani. The applicant also told the prosecutor that after leaving Syria on 9 October 1998 he had gone first to Greece and then to Russia and Italy. When the latter two countries refused to grant him the status of political refugee, he had been taken to Kenya by the Greek secret services.
20. On 23 February 1999 the applicant appeared before a judge of the Ankara State Security Court, who ordered that he should be detained pending trial. The applicant did not apply to the State Security Court to have that decision set aside. Before the judge he repeated the statement he had made to the prosecutor. He said that decisions taken within the PKK were submitted to him for final approval as founder and leader of the organisation. In 1973-78 the PKK's activities had been political. In 1977 and 1978 the PKK had organised armed attacks on the agalar (major landowners). In 1979, after the applicant had gone to Lebanon, the PKK had begun its paramilitary preparations. Since 1984 the PKK had carried on an armed struggle within Turkey. The persons in charge in each province decided on armed actions and the applicant had confirmed the general plan for such actions. He had taken the strategic and tactical decisions for the organisation as a whole. The units had carried out the decisions.
21. On the day after he arrived in Turkey the applicant's Turkish lawyer, Mr Feridun Çelik, asked to visit his client. He was prevented by members of the security forces from leaving the premises of the Diyarbakır Human Rights Association and was subsequently arrested together with seven other lawyers.
22. On 17 February 1999 the Turkish authorities at Istanbul Airport refused Ms Böhler, Ms Prakken and their partner Mr Koppen leave to enter Turkey to visit the applicant, on the ground that they could not represent him in Turkey and that Ms Böhler's past history (she was suspected of having campaigned against Turkey's interests and of having taken part in meetings organised by the PKK) gave rise to the risk of prejudice to public order in Turkey.
23. On 25 February 1999 the applicant was able to talk to two of the sixteen lawyers who had asked to see him, Mr Z. Okçuoğlu and Mr H. Korkut. The first conversation took place in the presence of a judge and of members of the security forces wearing masks. The latter decided that it should not last longer than twenty minutes. The record of that conversation was handed over to the State Security Court. The applicant's other representatives were given leave to have their authority to act before the Court signed and to see their client later.
24. During the preliminary investigation from 15 February 1999, when the applicant was arrested, and 24 April 1999, when the trial began, the applicant had twelve interviews with his lawyers. The dates and duration of those interviews were as follows: 11 March (45 minutes), 16 March (1 hour), 19 March (1 hour), 23 March (57 minutes), 26 March (1 hour, 27 minutes), 2 April (1 hour), 6 April (1 hour), 8 April (61 minutes), 12 April (59 minutes), 15 April (1 hour), 19 April (1 hour) and 22 April (1 hour).
25. According to the applicant, his conversations with his lawyers were monitored from behind glass panels and filmed with a video camera. After the first two short visits the applicant's contact with his lawyers was restricted to two visits a week, lasting an hour each. On each visit the lawyers were searched five times and required to fill in a very detailed questionnaire. Likewise according to the applicant, he and his advisers were not allowed to exchange documents or take notes during these interviews. The applicants' representatives were unable to give him either a copy of his case file (other than the indictment, which was notified by the prosecution) or any other material which would allow the applicant to prepare his defence.
26. According to the Government, no restrictions were placed on the applicant as regards either the number of visits by his lawyers or their length. Apart from the first visit, which took place under the supervision of a judge and members of the security forces who were present in the same room as the applicant and his lawyers, the interviews were held in accordance with the provisions of the Code of Criminal Procedure. In order to ensure their safety, the lawyers were taken to the island of İmralı by boat after embarking at a private quay. Hotel rooms were booked for them near the embarkation point. Likewise according to the Government, no restrictions were placed on the applicant's correspondence.
27. In the meantime, on 2 March 1999 delegates of the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (the “CPT”) visited İmralı Prison. In a letter of 22 March 1999 to the representatives of the Turkish Government they indicated that the applicant was physically in good health and that he had said that he had not suffered any ill-treatment since his arrest. His cell was of a high standard. The CPT drew the Government's attention to the fact that the applicant's solitary confinement and his limited access to the open air could affect him psychologically.
28. The last visit by the CPT delegates to İmralı Prison, of which the applicant is the sole inmate, took place during their visit to Turkey from 2 to 14 September 2001. The delegates found that the cell occupied by the applicant was large enough to accommodate a prisoner and equipped with a bed, table, armchair and bookshelves. It also had an air-conditioning system, washing and toilet facilities and a window overlooking an inner courtyard. The applicant had access to books, newspapers and a radio, but not to television programmes or a telephone. On the other hand, he received twice daily medical checks by doctors and was visited by his lawyers once a week.
29. According to the applicant, even before his trial began he was portrayed by a section of the media as a “baby-killer”. His statements made as an accused during the preliminary investigation were disclosed to the press even before they had been made available to his lawyers.
30. According to the Government, the media and journalists had shown avid interest in the Öcalan case and all sorts of comments were made as to whether or not the applicant should be found guilty. The applicant's lawyers brought an action against a journalist whom they considered to have libelled the applicant.
31. In an indictment submitted on 24 April 1999 (and joined to several others drawn up in the applicant's absence by various public prosecutors' offices between 1989 and 1998) the Public Prosecutor at the Ankara State Security Court accused the applicant of activities carried out for the purpose of bringing about the secession of part of the national territory. He sought the death penalty under Article 125 of the Criminal Code.
32. The case file ran to 17,000 pages and had been prepared by joining the files of seven sets of proceedings already instituted against the applicant by the various state security courts. The applicant's lawyers were given access to the case file and the indictment on 7 May 1999. Since the judicial authorities had not been able to supply a copy of the file, the applicant's lawyers had brought their own photocopier and finished copying the file on 15 May 1999. The prosecution had failed to place certain documents in it, such as those concerning the applicant's arrest in Kenya and transfer to Turkey.
33. The first two hearings held in Ankara on 24 and 30 March 1999 in the applicant's absence were taken up with procedural matters, such as third-party applications to intervene in the proceedings and the measures to be taken for the hearings to be held on the island of İmralı and for the attendance of the parties and the public at those hearings. According to the Government, allegations that the lawyers were harassed by the police when they emerged from the first hearing in Ankara on 24 March 1999 are currently the subject of a criminal investigation.
34. The State Security Court, composed of two civilian and one military judge, held nine hearings on the island of İmralı from 31 May to 29 June 1999 and these were attended by the applicant. The applicant told the court, among other things, that he reiterated the statements he had made to the prosecutor and the judge. He confirmed that he was the most senior PKK agent, that he led the organisation and that he had instructed the members of the organisation to carry out a number of acts. He stated that he had not been ill-treated or insulted since his arrest. Furthermore, the applicant's representatives argued that the State Security Court could not be regarded as an independent and impartial tribunal within the meaning of Article 6 of the Convention. The applicant stated that, for his part, he accepted the court's jurisdiction.
35. The applicant said that he was willing to cooperate with the Turkish State in order to bring to an end the acts of violence associated with the Kurdish question and he promised to halt the PKK's armed struggle. He indicated that he wished to “work for peace and fraternity and achieve that aim within the Republic of Turkey”. He observed that, while he had initially envisaged an armed struggle for the independence of the population of Kurdish origin, that had been as a reaction to the Government's political pressure on that population. When circumstances had changed, he had altered his aim and limited his claims to autonomy or a recognition of the Kurds' cultural rights within a democratic society. He accepted political responsibility for the PKK's general strategy but disclaimed criminal liability for the acts of violence which went beyond the PKK's declared policy. In order to highlight the rapprochement between the PKK and the Government, he applied to have the Government officials who had conducted negotiations with the PKK examined as witnesses for the defence. That application was refused by the State Security Court.
36. The applicant's lawyers' applications for the communication of additional documents or for further investigations in order to collect more evidence were refused by the State Security Court on the ground that they were delaying tactics.
37. The applicant's lawyers complained to the State Security Court about the restrictions and the difficulties they were having in conferring with their client. Their request to be permitted to confer with him during lunch breaks was accepted by the State Security Court at the hearing on 1 June 1999.
On 2 June 1999 the State Security Court ruled that the applicant was to be given access to the case file under the supervision of two staff members and that the applicant's lawyers were to be allowed to provide him with copies of documents from the case file.
The lawyers did not appear at the hearing on 3 June 1999. At their request, the transcripts of that hearing and copies of the documents placed in the file were given to them and the applicant on 4 June 1999. One of the applicant's counsel thanked the State Security Court for having instilled an atmosphere of calm.
38. On 8 June 1999 the prosecution made their final submissions. They sought the death penalty for the applicant, pursuant to Article 125 of the Criminal Code.
The applicant's advisers requested a one-month's adjournment to enable them to prepare their final submissions. The State Security Court granted them fifteen days, the statutory maximum allowed.
39. On 18 June 1999 Turkey's Grand National Assembly amended Article 143 of the Constitution and excluded military members (whether of the bench or of the prosecutor's office) from state security courts. Similar amendments were made on 22 June 1999 to the Law on the State Security Courts.
40. At the hearing on 23 June 1999 the judge appointed to replace the military judge sat for the first time on the bench of the State Security Court. The State Security Court noted that the new judge had already read the file and the transcripts, in accordance with Article 381 § 2 of the Code of Criminal Procedure, and that he had followed the proceedings from the outset and had attended the hearings.
The applicant's counsel opposed the appointment of the non-military judge owing to his previous involvement in the case. Their application for an order requiring him to stand down was dismissed by the State Security Court.
41. Also on 23 June 1999 the applicant's counsel set out the applicant's substantive defence to the charges.
42. On 29 June 1999, after hearing the applicant's final representations, the Ankara State Security Court found the applicant guilty of carrying out acts designed to bring about the secession of part of Turkey's territory and of training and leading a gang of armed terrorists for that purpose. It sentenced him to death, pursuant to Article 125 of the Criminal Code. The State Security Court held that the applicant was the founder and principal leader of the unlawful organisation the PKK. The aim of the latter was to detach a part of the territory of the Republic of Turkey so as to form a Kurdish State with a political regime based on Marxist-Leninist ideology. The court held that it had been established that, following decisions taken by the applicant and on his orders and instructions, the PKK had carried out several armed attacks, bomb attacks, acts of sabotage and armed robberies, and that in the course of those acts of violence thousands of civilians, soldiers, police officers, village guards and public servants had been killed. The court did not accept that there were mitigating circumstances allowing the death penalty to be commuted to life imprisonment, having regard to, among other things, the very large number and the seriousness of the acts of violence, the thousands of deaths caused by them, including those of children, women and old people, and the major, pressing threat to the country that those acts posed.
43. The applicant appealed on points of law against that judgment, which, on account of the gravity of the sentence, was in any event subject to review by the Court of Cassation automatically.
44. In a judgment adopted on 22 November 1999 and delivered on 25 November the Court of Cassation affirmed the judgment of 29 June 1999 in every respect. It held that the replacement of the military judge by a civilian judge during the trial did not require the earlier procedural steps to be taken again seeing that the new judge had followed the proceedings from the beginning and that the law itself required that the proceedings should continue from the stage they had reached at the time of the replacement. The Court of Cassation also pointed out that the Ankara State Security Court was empowered by law to hold its hearings outside the area of its territorial jurisdiction, among other reasons on security grounds.
45. As to the merits, the Court of Cassation had regard to the fact that the applicant was the founder and chairman of the PKK. It referred to the latter's aim and activities, namely that it sought the foundation of a Kurdish State on a territory which Turkey should be made to cede after an armed struggle and to that end carried out armed attacks and sabotage against the armed forces and industrial premises and tourist facilities in the hope of weakening the authority of the State. The PKK also had a political front (the ERNK) and a military wing (the ARNK), which operated under its control. Its income was derived mainly from “taxes”, “fines”, gifts, subscriptions and the proceeds of armed robberies, gun-running and drug trafficking. According to the Court of Cassation, the applicant led all three of these groupings. In his speeches at party conferences, in his radio and television appearances and in the orders he had given to his activists, the applicant had instructed his men to resort to violence, indicated combat tactics, imposed penalties on those who did not obey his instructions and incited the civilian population to translate words into deeds. As a result of the acts of violence carried out by the PKK from 1978 up until the applicant's arrest (in all, 6,036 armed attacks, 3,071 bomb attacks, 388 armed robberies and 1,046 kidnappings) 4,472 civilians, 3,874 soldiers, 247 policemen and 1,225 village guards had died.
46. The Court of Cassation held that the PKK, founded and led by the applicant, had represented a substantial, serious and pressing threat to the country's integrity. It ruled that the acts of which the applicant was accused matched those which constituted the offence laid down in Article 125 of the Criminal Code and that it was not necessary, in order that that provision should apply, for the applicant – the founder and chairman of the PKK and the instigator of the acts of violence committed by that organisation – to have used a weapon himself.
47. In October 2001 Article 38 of the Constitution was amended so that the death penalty could no longer be ordered or implemented other than in time of war or of imminent threat of war or for acts of terrorism.
By Law no. 4771, which was published on 9 August 2002, the Turkish Assembly resolved, inter alia, to abolish the death penalty in peacetime (that is to say except in time of war or of an imminent threat of war) by amending the relevant legislation, including the Criminal Code. As a result of the amendments, a prisoner whose death sentence for an act of terrorism has been commuted to life imprisonment must spend the rest of his life in prison.
In a letter to the Court of 19 September 2002, the Government declared: “Abdullah Öcalan no longer faces the execution of the death penalty as finalised on 22 November 1999 by the judgment of the Turkish Court of Cassation”.
By a judgment of 3 October 2002 the Ankara State Security Court commuted the applicant's death sentence to life imprisonment. It ruled that the offences under Article 125 of the Criminal Code of which the applicant was accused had been committed in peacetime and constituted terrorist acts.
The Nationalist Action Party (MHP, Milliyetçi Hareket Partisi), a political party with representatives in Parliament, applied to the Constitutional Court for an order setting aside certain provisions of Law no. 4771, including the provision abolishing the death penalty in peacetime for persons found guilty of terrorist offences. The Constitutional Court dismissed that application in a judgment of 27 December 2002.
On 9 October 2002 two trade unions – the Public-Sector Workers Union and the National Education Union (representing teachers) – which had intervened in the criminal proceedings on behalf of their deceased members, appealed on points of law against the judgment of 3 October 2002 by which the applicant's death sentence had been commuted to life imprisonment. They argued that the PKK's activities in south-east Turkey should be regarded as constituting “an imminent threat of war”. Those proceedings are still pending.
48. Before the Constitution was amended on 18 June 1999, Article 143 provided that State Security Courts were composed of a president, two other regular members and two substitute members. The President of the State Security Court, one of the regular members and one of the substitute members were appointed from among civilian judges, and the other regular member and substitute member were appointed from among military judges.
49. As amended by Law no. 4388 of 18 June 1999, Article 143 of the Constitution provides:
“... State Security Courts shall be composed of a president, two other regular members, a substitute member, a Principal Public Prosecutor and a sufficient number of Public Prosecutors.
The president, two regular members, a substitute member and the Principal Public Prosecutor shall be appointed from among judges and public prosecutors of the first rank and public prosecutors from among public prosecutors of other ranks. Appointments shall be made for four years by the National Legal Service Council, in accordance with procedures laid down in special legislation. Their terms of office shall be renewable...”
50. The necessary amendments concerning the appointment of the judges and prosecutors were made to Law no. 2845 on the State Security Courts by Law no. 4390 of 22 June 1999. By the terms of provisional section 1 of Law no. 4390, the terms of office of the military judges and military prosecutors in service in the State Security Courts were to end on the date of publication of that Law (22 June 1999). By provisional section 3 of the same Law, proceedings pending in the State Security Courts on the date of publication of the Law were to continue from the stage they had reached by that date.
51. Article 125 of the Turkish Criminal Code provides:
“Anyone committing an act designed to subject the State or a part of the State to the domination of a foreign State, to diminish its independence or to impair its unity or which is designed to remove from the administration of the State a part of the territory under its control shall be liable to the death penalty.”
52. The fourth paragraph of Article 128 of the Code of Criminal Procedure (as amended by Law no. 3842/9 of 18 November 1992) provides that any person who has been arrested or in respect of whom a prosecutor has made an order for him or her to remain in police custody may challenge the measure in question before the appropriate district judge and, if successful, be released. In proceedings in State Security Courts (governed by Law no. 2845 of 16 June 1983) Article 128 of the Code of Criminal Procedure applies only as it was worded before the amendments of 18 November 1992, when it did not provide any right of appeal to persons arrested or held in police custody on the orders of a prosecutor.
53. Section 1 of Law no. 466 on the Award of Compensation to Persons Arrested Unlawfully or Held in Detention without Due Cause provides:
“Compensation shall be paid by the State in respect of all damage sustained by persons:
(1) who have been arrested, or detained under conditions or in circumstances incompatible with the Constitution or statute law;
(2) who have not been immediately informed of the reasons for their arrest or detention;
(3) who have not been brought before a judicial officer after being arrested or detained within the time-limit laid down by statute for that purpose;
(4) who have been deprived of their liberty without a court order after the statutory time-limit for being brought before a judicial officer has expired;
(5) whose close family have not been immediately informed of their arrest or detention;
(6) who, after being arrested or detained in accordance with the law, are not subsequently committed for trial ..., or are acquitted or discharged after standing trial; or
(7) who have been sentenced to a period of imprisonment shorter than the period spent in detention or ordered to pay a pecuniary penalty only...”
54. Article 144 of the Code of Criminal Procedure provides that, in principle, anyone arrested or detained pending trial may speak with his legal representative in private, without any need for the latter to have an authority to act. As regards the procedure in proceedings before the State Security Courts, Article 144 of the Code of Criminal Procedure is applicable only as worded prior to the amendments made on 18 November 1992. That version provides that a member of the state legal service may be present at meetings between the accused and his or her lawyer before the criminal proceedings have commenced.
55. Protocol No. 6 to the Convention provides (Article 1): “The death penalty shall be abolished. No one shall be condemned to such penalty or executed.” Article 2 of Protocol No. 6 provides:
“A State may make provision in its law for the death penalty in respect of acts committed in time of war or of imminent threat of war; such penalty shall be applied only in the instances laid down in the law and in accordance with its provisions. The State shall communicate to the Secretary General of the Council of Europe the relevant provisions of that law.”
Protocol No. 6 has been ratified by forty-one of the forty-four member States of the Council of Europe and signed by all States, most recently on 15 January 2003 by Turkey. Only Turkey, Armenia and Russia have not yet ratified the Protocol.
56. Protocol No. 13 to the Convention, which provides for the abolition of the death penalty in all circumstances, was opened for signature on 3 May 2002. The Preamble to Protocol No. 13 reads:
“The member States of the Council of Europe signatory hereto,
Convinced that everyone's right to life is a basic value in a democratic society and that the abolition of the death penalty is essential for the protection of this right and for the full recognition of the inherent dignity of all human beings;
Wishing to strengthen the protection of the right to life guaranteed by the Convention for the Protection of Human Rights and Fundamental Freedoms signed at Rome on 4 November 1950 (hereinafter referred to as 'the Convention');
Noting that Protocol No. 6 to the Convention, concerning the Abolition of the Death Penalty, signed at Strasbourg on 28 April 1983, does not exclude the death penalty in respect of acts committed in time of war or of imminent threat of war;
Being resolved to take the final step in order to abolish the death penalty in all circumstances,
Have agreed as follows...”
Article 1 of Protocol No. 13 states:
“The death penalty shall be abolished. No-one shall be condemned to such penalty or executed.”
In accordance with Article 7 of the Protocol it shall “enter into force on the first day of the month following the expiration of a period of three months after the date on which ten member States of the Council of Europe have expressed their consent to be bound by the Protocol.”
57. In Opinion No. 233 (2002) of the Parliamentary Assembly of the Council of Europe on the Draft Protocol to the European Convention on Human Rights concerning the abolition of the death penalty in all circumstances the Assembly recalled:
“... its most recent resolutions on the subject (Resolution 1187 (1999) on Europe: a death penalty free continent, and Resolution 1253 (2001) on the Abolition of the death penalty in Council of Europe Observer states), in which it reaffirmed its beliefs that the application of the death penalty constitutes inhuman and degrading punishment and a violation of the most fundamental right, that to life itself, and that capital punishment has no place in civilised, democratic societies governed by the rule of law” (paragraph 2).
The Assembly further noted:
“The second sentence of Article 2 of the European Convention on Human Rights still provides for the death penalty. It has long been in the interest of the Assembly to delete this sentence, thus matching theory with reality. This interest is strengthened by the fact that more modern national constitutional documents and international treaties no longer include such provisions” (paragraph 5).
58. Article X § 2 of the “Guidelines on Human Rights and the Fight Against Terrorism” issued by the Committee of Ministers of the Council of Europe on 15 July 2002 reads:
“Under no circumstances may a person convicted of terrorist activities be sentenced to the death penalty; in the event of such a sentence being imposed, it may not be carried out.”
59. By its Resolution 1984/50 of 25 May 1984 on Safeguards guaranteeing protection of the rights of those facing the death penalty, the Economic and Social Council of the United Nations set out a series of standards to be observed by States which retained capital punishment.
Article 5 of the Resolution provides as follows:
“Capital punishment may only be carried out pursuant to a final judgment rendered by a competent court after legal process which gives all possible safeguards to ensure a fair trial, at least equal to those contained in Article 14 of the International Covenant on Civil and Political Rights, including the right of anyone suspected of or charged with a crime for which capital punishment may be imposed to adequate legal assistance at all stages of the proceedings.”
60. In a number of cases involving application of the death penalty, the United Nations Human Rights Committee observed that if the due process guarantees in Article 14 of the International Covenant on Civil and Political Rights were violated, a sentence of death which was carried out would not be in conformity with Article 6 § 2 of the Covenant which delineates the circumstances when it is permissible to give effect to the death penalty.
61. In the case of Reid v. Jamaica (no. 250/1987), the Committee stated as follows:
“[T]he imposition of a sentence of death upon the conclusion of a trial in which the provisions of the Covenant have not been respected constitutes ... a violation of article 6 of the Covenant. As the Committee noted in its general comment 6(7), the provision that a sentence of death may be imposed only in accordance with the law and not contrary to the provisions of the Covenant implies that 'the procedural guarantees therein prescribed must be observed, including the right to a fair hearing by an independent tribunal, the presumption of innocence, the minimum guarantees for the defence, and the right to review by a higher tribunal'.”
62. Similar observations were made by the Committee in the case of Daniel Mbenge v. Zaire (Communication no. 16/1977, 8 September 1977, U.N. Doc. Supp. no. 40, [A/38/40], at 134 [1983])) and Wright v. Jamaica (Communication no. 349/1989, U.N. Doc. CCPR/C/45/D/349/1989 [1992]).
63. In an Advisory Opinion on “The right to information on consular assistance in the framework of the guarantees of due process of law” (Advisory Opinion OC-16/99 of 1 October 1999) the Inter-American Court of Human Rights examined the implication of the guarantees of a fair procedure with Article 4 of the American Convention on Human Rights, which permitted the death penalty in certain circumstances. It stated:
“134. It might be useful to recall that in a previous examination of Article 4 of the American Convention (Restrictions to the Death Penalty, Advisory Opinion OC-3/83 of 8 September, 1983, Series A No. 3) the Court observed that the application and imposition of capital punishment are governed by the principle that '[n]o one shall be arbitrarily deprived of his life'. Both Article 6 of the International Covenant on Civil and Political Rights and Article 4 of the Convention require strict observance of legal procedure and limit application of this penalty to 'the most serious crimes'. In both instruments, therefore, there is a marked tendency toward restricting application of the death penalty and ultimately abolishing it.
135. This tendency, evident in other inter-American and universal instruments, translates into the internationally recognised principle whereby those States that still have the death penalty must, without exception, exercise the most rigorous control for observance of judicial guarantees in these cases. It is obvious that the obligation to observe the right to information becomes all the more imperative here, given the exceptionally grave and irreparable nature of the penalty that one sentenced to death could receive. If the due process of law, with all its rights and guarantees, must be respected regardless of the circumstances, then its observance becomes all the more important when that supreme entitlement that every human rights treaty and declaration recognises and protects is at stake: human life.
136. Because execution of the death penalty is irreversible, the strictest and most rigorous enforcement of judicial guarantees is required of the State so that those guarantees are not violated and a human life not arbitrarily taken as a result.”
64. In its Hilaire, Constantine and Benjamin et al v Trinidad and Tobago judgment of 21 June 2002, the Inter-American Court stated:
“Taking into account the exceptionally serious and irreparable nature of the death penalty, the observance of due process, with its bundle of rights and guarantees, becomes all the more important when human life is at stake” (at § 148).
VIOLATED_ARTICLES: 3
5
6
VIOLATED_PARAGRAPHS: 5-1
5-3
5-4
6-1
6-3
VIOLATED_BULLETPOINTS: 6-3-b
6-3-c
NON_VIOLATED_ARTICLES: 14
2
3
34
NON_VIOLATED_PARAGRAPHS: 2-1


ITEMID: 001-118738
LANGUAGEISOCODE: ENG
RESPONDENT: HRV
BRANCH: CHAMBER
DATE: 2013
DOCNAME: CASE OF ZAHIROVIĆ v. CROATIA
IMPORTANCE: 2
CONCLUSION: Remainder inadmissible;Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing;Adversarial trial;Equality of arms);Violation of Article 6+6-3-c - Right to a fair trial (Article 6-3 - Rights of defence) (Article 6 - Right to a fair trial;Article 6-3-c - Defence in person);Non-pecuniary damage - award
JUDGES: Dmitry Dedov;Erik Møse;Isabelle Berro-Lefèvre;Julia Laffranque;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Ksenija Turković
TEXT: 4. The applicant was born in 1975 and lives in Zagreb.
5. On 22 October 2003 an investigating judge of the Zagreb County Court (Županijski sud u Zagrebu) opened an investigation in respect of the applicant in connection with suspicions that on 5 July 2003 he had put at risk the life and limb of others by firing shots in his partner’s flat and that on 6 July 2003 he had attempted to murder three persons by shooting at them in a nightclub. The investigating judge ordered the applicant’s detention but the applicant remained at large.
6. The applicant appeared before the investigating judge of the Zagreb County Court on 28 April 2004. He was questioned and remanded in custody on the same day.
7. On 24 June 2004 the Zagreb County State Attorney’s Office (Županijsko državno odvjetništvo u Zagrebu) indicted the applicant in the Zagreb County Court, alleging that on 5 July 2003 he had put at risk the life and limb of others and that on 6 July 2003 he had attempted to murder three persons.
8. Judge Z.K. assumed responsibility for the applicant’s case as the president of a trial panel of the Zagreb County Court.
9. On 2 September 2004 a three-judge panel of the Zagreb County Court, composed of Judges D.T., E.D. and M.G., extended the applicant’s detention on the grounds provided for under Article 102 § 1(3) of the Code of Criminal Procedure (risk of reoffending). The relevant part of the decision reads:
“... the accused is indicted under count two, namely that on 5 July 2003 in the flat of his partner S.O. he fired two shots from a gun at a wall, irrespective of the fact that R.Z. and Z.Kor. were present in the same room and that he was aware that the bullets could ricochet from the wall and hurt any of the persons present. Under count one, he is indicted on the ground that on 6 July 2003 in a nightclub, after a verbal dispute with K.G., he fired several times from a gun and then fired all the remaining bullets from the gun at A.P. and M.V. ... with the aim of murdering them, and K.G.’s life was saved by medical intervention.
The above shows the accused’s brutality, determination, high degree of criminal resolve and obvious propensity towards such criminal behaviour, all of which, in the opinion of this court, continues to justify the extension of his detention because of the fear that [if at large] he would commit a further criminal offence.”
10. On 28 April 2006 a three-judge panel of the Zagreb County Court found that the maximum statutory period of the applicant’s detention had expired and ordered that he be released from detention. Judge M.G. was a member of that panel.
11. On 16 September 2008 the Vice-President of the Criminal Division of the Zagreb County Court reassigned the applicant’s case to Judge M.G. because in the meantime Judge Z.K. had become a judge of the Supreme Court (Vrhovni sud Republike Hrvatske).
12. On 27 November 2009 a trial panel of the Zagreb County Court, presided over by Judge M.G., found the applicant guilty of the attempted murder of three persons and dismissed the charge of putting at risk the life and limb of others on the ground that the prosecution had withdrawn that charge. The applicant was sentenced to six years’ imprisonment.
13. On 2 February 2010 the Zagreb County State Attorney’s Office lodged an appeal with the Supreme Court against the Zagreb County Court’s judgment, seeking a more severe sentence.
14. The applicant lodged an appeal against the Zagreb County Court’s judgment with the Supreme Court on 16 February 2010, complaining of a number of substantive and procedural flaws, and notably that Judge M.G. had not been impartial. The applicant contended that by being a member of a panel which had extended his pre-trial detention, Judge M.G. had already formed his opinion about the charges against the applicant.
15. On an unspecified date in 2010, the Supreme Court, acting under Article 373 § 1 of the Code of Criminal Procedure, forwarded the parties’ appeals and the Zagreb County Court’s case file to the State Attorney’s Office of the Republic of Croatia (Državno odvjetništvo Republike Hrvatske) for their examination and opinion.
16. On 16 March 2010 the State Attorney’s Office of the Republic of Croatia submitted an opinion to the Supreme Court on both appeals, however, this opinion was not communicated to the defence. The opinion reads:
“Please find enclosed the Zagreb County Court’s case file no. K-124/04 concerning the criminal proceedings against the accused Zajko Zahirović, charged with the offences under Article 90 in conjunction with Article 33 of the Criminal Code, which was forwarded [to the State Attorney’s Office of the Republic of Croatia] after the [Zagreb] State Attorney’s Office and the accused’s lawyer had submitted their appeals ...
As to the appeal lodged by the [Zagreb] State Attorney’s Office concerning the sentence, we consider that it was correctly pointed out that the [first-instance] court sentenced [the applicant] to a rather lenient sentence of imprisonment which appears absolutely inappropriate in view of the circumstances of the offence and his personality ... It was correctly pointed out that certain aggravating factors had been significantly underestimated, namely the grave consequences for [the health of] K.G. and the other victims. Furthermore, the [first-instance] court failed to take into account the accused’s attitude towards the victims and the damage caused by the offences, as well as his lack of any remorse for or apology to the victims. This all should be taken into account in the sentencing procedure and should eventually lead to a more severe sentence as requested by the [Zagreb] State Attorney’s Office.
As to the appeal lodged by the defence, it is to be noted that there has been no fundamental miscarriage of justice in the proceedings, within the meaning of Article 367 ... of the Code of Criminal Procedure, concerning the impartiality of the trial judge, who [allegedly] should have been excluded from the case. In his submission the appellant refers to the case-law of the Constitutional Court and the European Court of Human Rights concerning the exclusion of a judge who presides over a trial panel, having already decided on the accused’s detention at the pre-trial stage of the proceedings. The case-law of the Constitutional Court’s impartiality is presumed until there is proof to the contrary and since in the case at issue there are no objective circumstances which could raise doubts as to the impartiality of the judge who presided over the trial panel, such case-law is not applicable to the present case.
As to the [complaint alleging] substantive flaws in that no reference was made to the Articles of the amended Criminal Code, it is to be noted that the Criminal Code was not amended as regards Article 90 and that the court in the present case correctly applied the relevant provision ...
As to the factual findings [of the first-instance court], we consider that all the relevant facts have been sufficiently and comprehensibly established. The [first-instance court] based its findings on the report drawn up by the ballistics expert V.M. and, after the assessment of the relevant witness statements, it set out in detail its conclusion that the accused had caused the conflict. Therefore, the argument of self-defence raised in the appeal is not correct because, under the relevant case-law, the person who first drew a gun cannot invoke the defence of self-defence. We also find that sufficient reasons have been given as to the existence of all the elements of the offence, as regards the victims A.P. and M.V., as the accused’s mens rea. The exact place from which he shot the gun was also established without any doubt.
As to the fact that the victim – a policeman [by profession] – also had a gun, we consider that this has no bearing on the factual findings set out in the [first-instance] judgment. This is because no bullets fired from the [victim’s] gun were found in the nightclub, but only one unfired bullet. Therefore, the appellant’s argument that the victim fired his gun is unsupported by the personal and physical evidence. In this connection it is also to be noted that all the relevant facts, other than the statements of the victims and the other witnesses unrelated to the accused Zajko Zahirović, are supported by a 3D reconstruction [of the crime scene] and the report of the ballistics expert M.
Against the above background we propose that the appeal by the State Attorney’s Office be allowed and the appeal lodged by the defence be dismissed as ill-founded.”
17. On 22 March 2010 the Supreme Court informed the parties that a public hearing would be held on 20 April 2010. The applicant’s defence lawyer, who had represented him throughout the proceedings, was invited to attend but it was expressly stated that the applicant, who in the meantime had been remanded in pre-trial detention until the judgment became final, was not to attend.
18. On 20 April 2010 the Supreme Court held a public hearing in the presence of the applicant’s defence lawyer and the Deputy State Attorney of the Republic of Croatia (Zamjenik Glavnog državnog odvjetnika Republike Hrvatske).
19. At the appeal hearing the applicant’s defence lawyer reiterated the arguments set out in his appeal and the Deputy State Attorney of the Republic of Croatia endorsed the arguments set out in the opinion of 16 March 2010 (see paragraph 16 above). The relevant part of the summary record of the appeal hearing reads:
“With the permission of the President, the ... defendant gave the necessary explanations for his submissions, in particular: The defence counsel reiterated the appeal submissions.
The Deputy State Attorney of the Republic of Croatia stated that he endorsed the proposal submitted under Article 373 § 2 of the Code of Criminal Procedure, ...
After that, at 10 a.m., the President decided that the part of the session at which the parties were allowed to be present had concluded and that the decision which the panel would adopt in the course of the session would be made available to all interested parties by means of the delivery of a certified copy of the decision through the first-instance court.”
20. On the same day the Supreme Court adopted a judgment in which it upheld the applicant’s conviction and increased his sentence to eight years’ imprisonment. The relevant part of the judgment reads:
“The Deputy State Attorney of the Republic of Croatia, after consulting the case file ... in a reasoned opinion of 16 March 2010 ... asked for the appeal lodged by the State Attorney’s Office to be allowed and the appeal lodged by the accused to be dismissed.
...
The accused Zajko Zahirović, in his appeal ... asked to be invited together with his defence lawyer ... to the hearing before the appeal court. The request as regards the defence lawyer has been complied with ..., whereas the appeal court has not found it useful to have the accused brought from pre-trial detention ...
...
The mere fact that the president of the trial panel had ruled on the appellant’s pre-trial detention is not a reason for excluding that judge from the trial ... Since the appellant failed to substantiate any circumstances which could raise doubts as to the impartiality of the president of the trial panel, his argument appears ill-founded.
...
The appeal lodged by the State Attorney’s Office concerning the sentence is well founded ...
The first-instance court ... treated as mitigating circumstances the appellant’s decent behaviour in court, his relative youth, his lack of previous convictions, the fact that he was unemployed, had no assets and was a father of three minor children, one of whom was seriously disabled, and the fact that he was charged with attempting to commit criminal offences. His exceptional determination and criminal resolve, as manifested in committing three criminal offences putting life and limb at risk, were assessed as aggravating circumstances.
Contrary to the criminal offences committed to the detriment of A.P. and M.V., where no harm occurred – which is an additional mitigating factor that, together with other mitigating factors, could have led to the application of the rules on applying a more lenient penalty – the criminal offence committed to the detriment of K.G. resulted in grave consequences since he sustained serious and life-endangering wounds to his vital organs in his twenty-seventh year and at the peak of his career, which was then interrupted by long-term treatment and rehabilitation, although he had not contributed in any significant manner [to the situation], which amounts to an additional aggravating factor. The [appellant’s] behaviour after the commission of the criminal offences, as rightly pointed out in the appeal lodged by the State Attorney’s Office, namely that he escaped to another country, together with the lack of any remorse or apology to the victims, amount to additional aggravating circumstances which indicate that the rules on imposing a more lenient penalty should not have been applied in respect of that criminal offence.”
21. On 31 May 2010 the applicant lodged a constitutional complaint with the Constitutional Court (Ustavni sud Republike Hrvatske), arguing that his right to a fair trial had been violated, inter alia, because of the lack of impartiality of Judge M.G.; because the submissions of the Deputy State Attorney of the Republic of Croatia to the Supreme Court had not been communicated to him; and because the Supreme Court had not examined him prior to increasing his sentence.
22. On 23 March 2011 the Constitutional Court dismissed the applicant’s constitutional complaint as ill-founded, endorsing the reasoning of the lower courts. The decision of the Constitutional Court was served on the applicant on 4 April 2011.
23. The relevant provisions of the Constitution of the Republic of Croatia (Ustav Republike Hrvatske, Official Gazette nos. 56/1990, 135/1997, 8/1998, 113/2000, 124/2000, 28/2001, 41/2001, 55/2001, 76/2010, 85/2010) read as follows:
“In the determination of his rights and obligations or of any criminal charge against him, everyone is entitled to a fair hearing within a reasonable time by an independent and impartial court established by law.
In the case of suspicion of a criminal offence or criminal charges [being brought], the suspect, defendant or accused shall have the right:
...
- to defend himself in person or with the assistance of a defence lawyer of his own choosing, and if he does not have sufficient means to pay for legal assistance, to be given it free as provided by law;
- to be tried in his presence, provided that he is available to the court;
...”
24. The relevant parts of the Criminal Code (Kazneni zakon, Official Gazette nos. 110/1997, 27/1998, 50/2000, 129/2000, 51/2001) provide:
“(1) Anyone who intentionally begins to commit an offence but does not finish it shall be punished for an attempted offence if the offence at issue is punishable by a sentence of imprisonment of five years or more or, for any other offence, if the law provides that such an attempt shall be punished.
(2) A perpetrator who attempted to commit an offence shall be punished as if the offence had been committed but may be also punished by a more lenient sentence.
...”
“Anyone who deprives another of his life shall be punished by a sentence of imprisonment of at least five years.”
25. At the material time, the relevant provisions of the Code of Criminal Procedure (Zakon o kaznenom postupku, Official Gazette nos. 110/1997, 27/1998, 58/1999, 112/1999, 58/2002 and 62/2003) provided:
“1. The municipal courts, county courts and the Supreme Court shall have competence in criminal matters.
...”
“The Supreme Court shall be competent:
(1) to decide as the second-instance court on appeals lodged against decisions of the county courts;
...”
“1. A judge or lay judge shall be excluded from sitting in a case:
(1) if he has been injured by the offence;
(2) if he is the spouse, a relative by blood, either lineal, descending or ascending, or collateral to the fourth degree, or related by affinity to the second degree, to the defendant, his counsel, the prosecutor, the injured person, their legal guardian or legal representative;
(3) if he is a legal guardian, ward, adopted child or adoptive parent, foster parent or foster child to the defendant, his counsel, the prosecutor or the injured person;
(4) if in the same criminal case he has carried out actions during the investigation, or has taken part in deciding on an objection to the indictment, or if he has taken part in the proceedings as a prosecutor, defence counsel, legal guardian or legal representative of the injured person or the prosecutor, or if he has testified as a witness or as an expert witness;
(5) if in the same case he has taken part in adopting the decision of a lower court or in adopting a decision of the same court being challenged by means of an appeal or extraordinary remedy.
2. A judge or lay judge may be recused in a particular case if it has been argued and proved that there are circumstances other than those listed in the previous paragraph which call his impartiality into doubt.”
“1. A judge or lay judge, as soon as he discovers a ground for exclusion referred to in Article 36, paragraph 1, of this Code, shall discontinue all activity on the case and report the matter to the president of the court, who shall appoint a substitute judge. ...
2. If a judge or lay judge holds that other circumstances exist which would justify his standing down (Article 36, paragraph 2), he shall inform the president of the court thereof.”
“1. Disqualification of a judge may also be requested by the parties.
2. The parties may lodge their request for disqualification before the opening of the trial, and if they learn at a later stage of a reason for the judge’s exclusion (Article 36, paragraph 1), they shall submit their request immediately after they have learned of that reason.”
“A judgment can be challenged:
(1) for a procedural miscarriage of justice;
(2) for a violation of the Criminal Code;
(3) for any error of fact;
(4) in respect of any sanction, confiscation of the proceeds of crime, costs and expenses ordered or any civil claim lodged in the criminal proceedings, and in respect of the decision to publish the judgment.”
“1. An appeal shall be lodged with the first-instance court in a sufficient number of copies for the court, the opposing party and the defence counsel to reply thereto.
...”
“The first-instance court shall forward a copy of the appeal to the opposing party, which may submit a reply. The appeal together with all the files shall be forwarded by the first-instance court to the second-instance court, which shall also take into account any reply to the appeal received before its session begins.
“1. When the second-instance court receives the files, the president of the appeal panel shall assign a reporting judge. If the case concerns an offence which is subject to public prosecution, the reporting judge shall forward the case file to the competent State Attorney, who shall examine it and then return it to the court without delay.
2. When the State Attorney returns the case file, the president of the panel shall schedule the session of the panel. The State Attorney shall be notified of the session.
...”
“1. The accused and his defence counsel and any subsidiary prosecutor or private prosecutor who, within the time-limit for appealing or replying to an appeal, have requested to be notified of the session or have proposed that a trial be held before the appellate court, shall be notified of the session. The president of the panel, or the panel, may decide that the parties should be notified of the session, even if they have not so requested, if their presence would be useful for the clarification of the case.
2. If the accused is in pre-trial detention or is serving a sentence [of imprisonment] and has defence counsel, his presence shall be ensured only if the president of the panel, or the panel, considers it expedient.
3. The session of the panel shall begin with the report by the reporting judge on the facts of the case. The panel may request such explanations as are necessary from the parties present at the session concerning the appeal submissions. The parties may propose that certain files be read out in order to supplement the report and may, subject to the approval of the president of the panel, give such explanations as are necessary of the positions stated in their appeal or their reply to the appeal, without repeating the contents of the report.
...”
“1. The second-instance court shall examine the first-instance judgment in the part and on the grounds referred to in the appeal (Article 366).
...”
“1. The second-instance court may, after a session of the appeal panel or after a trial, reject the appeal as being lodged out of time or as being inadmissible, or dismiss the appeal as ill-founded and uphold the first-instance judgment, or quash the first-instance court’s judgment and remit the case to it for a retrial, or reverse the first-instance judgment.
...”
26. In case no. I Kir-163/10, concerning a criminal investigation in connection with a suspicion of offences of forgery of official documents under Article 312 of the Criminal Code, on 11 February 2011 the President of the Split County Court (Županijski sud u Splitu), further to a request by the defence, excluded a judge, M.P., from the case. He found that, although the request for exclusion of the judge had been highly vague, the judge had to be excluded in order to avoid any doubt as to his impartiality. Judge M.P. himself rejected any objection as to his impartiality but shared the view that he should be excluded to avoid any such objection from the defence.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1
6-3
VIOLATED_BULLETPOINTS: 6-3-c


ITEMID: 001-21976
LANGUAGEISOCODE: ENG
RESPONDENT: DNK
BRANCH: ADMISSIBILITY
DATE: 2001
DOCNAME: AGNISSAN v. DENMARK
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Christos Rozakis
TEXT: The applicant, Yapo Nazaire Agnissan, is a citizen of the Ivory Coast, born in 1974 and living in Denmark. He is represented before the Court by Mr Anders Jensen, a lawyer practising in Roskilde, Denmark.
The respondent Government are represented by their agent, Mr Hans Klingenberg of the Ministry of Foreign Affairs.
The facts of the case, as submitted by the parties, may be summarised as follows.
On 18 July 1994 the applicant came to Denmark. On 21 September 1994 he approached the police and requested asylum. He presented himself as Aristide Mazimpaka, a Rwandan national. He alleged that he had just arrived and that he was not in possession of any identification papers. Pending the examination of his request for asylum the applicant was detained until 14 December 1994 under section 36 of the Aliens Act (Udlændigeloven).
During this period of time the applicant was interviewed by the police on 3 October 1994 and 8 November 1994. He explained, among other things, that on 29 August 1994 unknown armed men invaded the house of his family in Kigali, the capital of Rwanda, and shot his parents and his brothers. He managed to escape. He could not give specific details regarding his journey to Denmark, save that he went to Kenya first and, from there, he went as a stowaway on a ship to a port in some country where two girls helped him to a railway station and paid for his ticket.
On 13 December 1994 the aliens authorities (Direktoratet for Udlændinge) decided not to grant the applicant refugee status, the reason being that there were insufficient evidence to prove that the applicant was in fact a Rwandan national, especially as he did not speak kinyawanda, the main language in Rwanda; his general knowledge of Rwanda seemed very limited compared with the information given by the applicant that he had attended school there for several years; the applicant had not been involved with the Rwandan authorities in any way either in the political or the penal system; and finally the only reason given by the applicant for the asylum request was his fear concerning the general situation in Rwanda.
This decision was upheld on appeal by the Aliens Appeal Board (Flygtningenævnet) on 13 February 1996 with the same reasoning and a deportation order was given with the deadline for departure being 28 February 1996. It was stressed that if the applicant proved unwilling to leave the country the deportation order would be enforced.
This led the applicant to apply on 20 February 1996 to the Ministry of the Interior for exceptional leave to remain in Denmark. The Ministry refused this request on 22 February 1996 but postponed the deadline for departure until 11 March 1996. Furthermore, the Ministry referred part of the application to the aliens authorities for further consideration. On 18 December 1996 the aliens authorities rejected the application. It does not appear that the applicant appealed against this decision.
As the applicant had no travel documents it turned out to be difficult for the police authorities to enforce the deportation order. Thus, the applicant was requested to attend further interviews with the police authorities in order to gather sufficient information to determine the applicant’s home country and, subsequently, to obtain the necessary travel documents.
The applicant was requested to attend interviews on 21 February, 5 March, 21 March, 24 May, 28 May and 5 September 1996 as well as on 14 March, 17 April and 27 August 1997.
The applicant did not attend the interviews scheduled for 21 February, 5 March and 28 May 1996. The Government allege that at the interview held on 5 September 1996 a language test had to be interrupted as the applicant did not co-operate. The applicant disputes this allegation, claiming that he did complete the test. At the interview held on 17 April 1997, in order to try to confirm the information given by the applicant on his nationality, the police arranged a telephone conversation between the applicant and representatives at the Rwandan Embassy in Bonn.
On 27 August 1997 the police took action under section 34, subsection 2 of the Aliens Act imposing on the applicant a duty to report in person each day at 10 o’clock to a police unit connected to an asylum centre in Sandholm. It was explained to the applicant that failure to report might result in his detention. At the time the applicant was living some distance from Sandholm in another asylum centre in Tårnby. The applicant complained in vain about this action to the Ministry of the Interior.
The applicant did not report on 28 August 1997. Thus, on 29 August 1997, the police drew the applicant’s attention to the possible consequences of noncompliance with the duty to report. The applicant failed to report from 30 August until 1 September 1997. On 2 September 1997 the police turned up at the centre where the applicant was living, and with the assistance of an interpreter yet another interview was held, which included telephone conversations between the applicant and representatives at the Embassies of Rwanda in Bonn and in London in order to try to determine the applicant’s nationality. These telephone calls did not, however, resolve the question of his nationality. The police pointed out once again the possible consequences of noncompliance with the duty to report. Nevertheless, the applicant did not report from 3 to 7 September 1997.
On 8 September 1997 the police decided to take the applicant into custody pursuant to the Aliens Act, section 36, subsection 1 cf. section 34, subsection, 2.
On 10 September 1997 the Hillerød Criminal Court (kriminalretten) found the detention to be in accordance with the provisions of the Aliens Act. On appeal, this decision was upheld on 1 October 1997 by the High Court of Eastern Denmark (Østre Landsret), finding that there was no basis for assuming that the reference in section 36 to the measures referred to in section 34 did not include all measures mentioned in section 34, including the measures pursuant to the latter’s subsection 2. In this respect the High Court had regard to the wording of the Aliens Act, section 36, subsection 1, the preparatory rules regarding section 34, subsection 2, and the fact that Act no. 410 of 10 June 1997 did not amend section 36. Furthermore, the High Court emphasised that the applicant had not complied at all with the duty to report though the consequences thereof on two occasions had been stressed.
Application for leave to appeal to the Supreme Court (Højesteret) was refused on 27 October 1997.
During the applicant’s detention, on 29 September 1997 the police arranged a telephone conversation between the applicant and representatives at the Rwandan Embassy in London in order to confirm the information given by the applicant on his Rwandan nationality.
Also during the applicant’s detention, on 28 October 1997, the police arranged another language test for the applicant. An analysis of the test showed that in all probability the applicant was not from Rwanda as his French accent was believed to be of West African origin.
The applicant was released the following day, on 29 October 1997.
Subsequently, on 16 February 1998 the applicant was confronted with the result of the language test, on 28 October 1999 he was interviewed by the police and on 27 March 2000 having obtained his consent the applicant’s fingerprints were sent to Interpol with a view to identification by inquiry in certain West African countries (Ivory Coast, Senegal, Togo, Cameroon, Benin and Guinea). Other means of inquiry included a visit to the Embassy of the Ivory Cost on 29 March 2000 during which the applicant refused to speak French. On 4 April 2000, however, a representative at the embassy could listen to the tape recording of the applicant’s French.
On 19 February 2001 a member of the Danish Refugee Council informed the National Commissioner of Police that the applicant wanted to marry a Danish citizen for which reason he had now decided to disclose his true identity.
On 26 February 2001 the applicant revealed that his name was in fact Yapo Nazaire Agnissan and he was a citizen of the Ivory Coast. He flew to Denmark from Abidjan on 17 July 1994 on his Ivory Coast passport. Upon his arrival in Copenhagen airport on 18 July 1994 he posted his passport back to his family in the Ivory Coast.
The applicant still remains in Denmark.
Section 36, subsection 1 of the Aliens Act, which was amended by Act no. 410 of 10 June 1997, reads in so far as relevant:
“If the measures referred to in section 34 are insufficient to ensure enforcement of ... deportation of an alien, who otherwise ... is not entitled to stay in Denmark, the police may decide that the alien is to be detained in custody.”
Section 34, subsection 1 reads in so far as relevant:
“Until a decision has been made as to whether an alien shall be expelled...or deported... and until such an order can be enforced, the police may decide, where it is considered necessary to ensure the alien’s presence, that the alien must:
1) deposit his/her passport, other travel documents and tickets with the police;
2) present security fixed by the police;
3) take up residence in accordance with the further instructions of the police;
4) report to the police at specific intervals.”
The above Act no. 407 of 10 June 1997 also amended section 34 by adding a subsection 2. In so far as relevant section 34, subsection 2 reads:
“If it is considered appropriate for the purpose of ensuring the presence of an alien, the police may decide that an alien shall report to the police at regular intervals if:
1) the alien requests asylum on arrival, or thereafter and then does not assist in clarifying the case;
2) the alien fails to appear for an interview with the Directorate of Aliens or the police to which he/she was called;
...
5) the police are in charge of the alien’s departure and the alien does not assist therein, cf. Section 40 subsection 3, final sentence”.
Section 40, subsection 3 contains a duty to provide the authorities with information and to participate actively in obtaining the necessary travel documents, visa etc. and finally to co-operate physically in the deportation.
It appears from the general notes to Act No. 407 of 10 June 1997 which introduced inter alia subsection 2 to section 34):
“To prevent abuse of the permit system of the Aliens Act, it is furthermore important to make it as unattractive as possible to aliens whose applications for a residence permit are being examined to obstruct the procuring of information in a case. It is moreover important to prevent aliens whose applications for a residence permit have been finally refused from obstructing deportation from the country...
The amendments proposed are intended to motivate such persons to assist in deportation from Denmark.”
It appears from the detailed notes regarding section 34, subsection 2:
“The intention of the amendment is to allow for systematic application of a duty to report (daily, if necessary).
If the measures referred to in section 34 are insufficient to ensure enforcement of refusal of entry, expulsion or deportation, the court will be able to detain an alien, cf. in detail section 36, subsection 1, first sentence. Part of this assessment might be whether, as a less coercive measure, a duty to report may be imposed pursuant to the proposed provision in section 34, subsection 2, and whether the alien has violated a decision to that effect”


ITEMID: 001-110308
LANGUAGEISOCODE: ENG
RESPONDENT: SVN
BRANCH: ADMISSIBILITY
DATE: 2012
DOCNAME: BERDAJS v. SLOVENIA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: André Potocki;Angelika Nußberger;Ann Power-Forde;Dean Spielmann;Elisabet Fura;Ganna Yudkivska
TEXT: The applicant, Mr Božo Berdajs, is a Slovenian national who was born in 1978 and lives in Šmartno Pri Litiji. He is represented before the Court by Mr L. Poljanec, from Slovenska Bistrica. The Slovenian Government (“the Government”) are represented by their Agent, Mrs T. Mihelič Žitko, State Attorney.
The facts of the case, as submitted by the parties, may be summarised as follows.
The applicant was born in 1978 and lives in Šmartno pri Litiji.
On 14 April 2007 the applicant was driving a truck near Ivančna Gorica. He was stopped by the police on suspicion of having loaded the cargo in breach of applicable road traffic rules. The police asked the applicant to weigh the truck but he then started to unload it, explaining that he had been so instructed by his superior. The police found that the applicant had committed a minor offence under section 242 §§ 1 and 3 of the Road Traffic Safety Act on account of his non-compliance with police instructions to weigh the truck, and they imposed a fine of 2,503 euros (EUR). On 9 August 2007 written notice of the payment order issued by the police was sent to the applicant, who received it on 16 August 2007.
On 23 August 2007 the applicant lodged a request for judicial review which read as follows:
“Grounds for request
My request is based on the principle of the presumption of innocence as provided in Section 7 of the Minor Offences Act and Articles 3, 26, 26, 27 and 29 of the Constitution.
Explanation
Section 7 of the Minor Offences Act states the following: a person who is accused of a minor offence shall be presumed innocent until their guilt is established by a final decision. The Constitution in its Article 27 states the same. In my case there was no final judgment and therefore the second payment order issued has no legal value. I will soon have a whole collection of payment orders and decisions by which mistakes were corrected.
The police cannot and should not be a body deciding on minor offences (see Article 3 of the Constitution). The charges of a criminal offence can, in accordance with Article 23 of the Constitution, be decided only by a judge.
A time-limit for appeal or a request for judicial review is not compatible with Article 29 of the Constitution. It should also be indicated whether the time-limit concerns working or calendar days. An appropriate time would be thirty calendar days, since the State also needs up to thirty days to send you documents if you request them.
You are charging me with an offence which you have not specified or explained clearly and about whose consequences you have submitted no evidence. As a citizen, I am not required to know the paragraphs and articles of the Road Traffic Safety Act. In any event, I do not know what I am charged with. You should present evidence concerning the consequences. I claim that I was driving in accordance with the regulation. The accuser must submit clear material or written evidence, therefore I request you to do the following:
- submit documents concerning the measuring device and the evidential method required by the law on standardisation (a-tests, measuring sheets, a judicial decision proving that the results obtained by this device can be used as evidence);
- submit a judicial decision proving that the results obtained with this device or with this measuring or evidential method can be used as evidence in court;
- submit documents proving that the person that handled the measuring device is authorised and publicly certified to do the measuring or use the evidential method;
- provide evidence proving material or any other damage resulting from the incriminated offence;
- findings of the police are not evidence.
The payment order has been issued and signed by an authorised person – a police officer.
The Constitution states in Article 23 that only the judge can adjudicate.
I am interested in the following:
- is the person employed at the Ministry for Justice
- has he completed a legal education
- does he have a bar exam
- is he a judge.
If he does not fulfil the above conditions, his activities are not in compliance with Article 23 of the Constitution. Since the police belong to the executive branch of power (Article 3 of the Constitution) they cannot and should not punish and cannot act as an authority in respect of a minor offence, since this is not recognised by the Constitution.
The Constitution in its Article 29 clearly regulates the proceedings concerning these charges. Since the proceedings so far have not complied with the Constitution, I have to inform you about Article 26 of the Constitution.
Under section 30 of the Police Act the police shall operate in accordance with the Constitution.
Since the present case also concerns a violation of fundamental human rights and freedoms, I request you to properly examine this request.
Request
I propose that the payment order be annulled and that the proceedings be conducted in accordance with the Constitution.”
On 20 August 2008 the Ljubljana Local Court rejected the applicant’s request. The court found at the outset that the applicant had lodged “a standardised request for judicial review” in which he had made only general accusations and alleged that provisions of the Constitution had been breached. In particular, the court found that the applicant had not clearly stated why the police’s findings were false and had not indicated that he had not committed the alleged offence. His generalised statements did not raise any doubts as to the facts as established by the police. The court then summarised the findings by the police, which it found had been correctly established. As regards the alleged procedural violations, the court, referring to the relevant provisions of the Minor Offences Act (“MOA”), noted, inter alia, that the police were authorised to decide on the minor offence in question by applying summary proceedings and the police officers had authority to conduct the proceedings. It also noted that the time-limit for lodging a request for judicial review was provided for in the legislation. The court also noted that the applicant, who possessed a driving licence, should have been aware of the regulations contained in the Road Traffic Safety Act. Lastly, the court found that the police had correctly applied the law to the facts of the case and imposed a fine prescribed by law. The applicant was ordered to pay EUR 100 for the costs of the proceedings.
On 16 September 2008 the applicant lodged a constitutional appeal, alleging a violation of fair trial guarantees – in particular, that any fine should be imposed by a judicial and not by a police procedure; that he had been charged and convicted by the police; and that the guarantees enshrined in Articles 23 (right to judicial protection), 24 (right to public trial) and 29 (defence rights) of the Constitution had not been provided to him. In addition, he complained that no ordinary appeal lay against the Local Court’s judgement.
On 24 September 2008 the Constitutional Court dismissed the constitutional appeal. It relied on point three of the first paragraph of section 55b read together with point four of the second paragraph of section 55a of the Constitutional Court Act. The decision was served on the applicant on 1 October 2008.
For the relevant domestic law and practice see Suhadolc v. Slovenia (dec.), no. 57655/08, 17 May 2011.
In addition, section 242 of the Road Traffic Safety Act (Official Gazette no. 3/2004, implemented on 1 January 2005) reads as follows:
“(1) A police officer can order that a vehicle be weighed if he suspects that the load which it carries has been loaded in breach of the regulation concerning road traffic. The driver must allow the vehicle to be weighed ...
(2) A fine of no less than 100,000 Slovenian tolars (SIT) shall be imposed on a driver who acts in breach of the police order mentioned above.
(3) A fine of no less than 600,000 SIT [EUR 2,503] shall be imposed on a company or an individual entrepreneur, if the driver acts in breach of the police order mentioned in the first paragraph of this section, the person in charge should be punished by a fine of no less than 60.000 SIT.”