ITEMID: 001-58193
LANGUAGEISOCODE: ENG
RESPONDENT: PRT
BRANCH: CHAMBER
DATE: 1998
DOCNAME: CASE OF TEIXEIRA DE CASTRO v. PORTUGAL
IMPORTANCE: 2
CONCLUSION: Violation of Art. 6-1;Not necessary to examine Art. 3;Not necessary to examine Art. 8;Pecuniary damage - financial award;Non-pecuniary damage - financial award;Costs and expenses award - Convention proceedings
JUDGES: N. Valticos
TEXT: 8. Mr Francisco Teixeira de Castro, a Portuguese citizen, was born in 1955 and lives at Campelos (Guimarães). At the material time he worked in a textile factory. Since being released from prison he has not found employment.
9. In connection with an operation monitoring drug trafficking, two plain-clothes officers of the Public Security Police (PSP) from the Famalição police station approached an individual, V.S., on a number of occasions. He was suspected of petty drug trafficking in order to pay for drugs – mainly hashish – for his own consumption. They hoped that through V.S. they would be able to identify his supplier and offered to buy several kilograms of hashish from him. Unaware that they were police officers, V.S. agreed to find a supplier. However, despite being pressed by the two officers, he was unable to locate one.
10. Shortly before midnight on 30 December 1992 the two officers went to V.S.’s home saying that they were now interested in buying heroin. V.S. mentioned the name of Francisco Teixeira de Castro as being someone who might be able to find some; however, he did not know the latter’s address and had to obtain it from F.O. All four then went to the applicant’s home in the purported buyers’ car. The applicant came outside at F.O.’s request and got into the car where the two officers, accompanied by V.S., were waiting. The officers said that they wished to buy 20 grams of heroin for 200,000 escudos (PTE) and produced a roll of banknotes from the Bank of Portugal.
11. Mr Teixeira de Castro agreed to procure the heroin and, accompanied by F.O., went in his own car to the home of another person, J.P.O. The latter obtained three sachets of heroin, one weighing ten grams and the other two five grams each, from someone else and, on his return, handed them over to the applicant in exchange for a payment, which, though the precise figure is not known, exceeded PTE 100,000.
12. The applicant then took the drugs to V.S.’s home; V.S. had in the meantime returned there and the two police officers were waiting outside. The deal was to take place in the house. The officers went inside at V.S.’s invitation; the applicant then took one of the sachets out of his pocket, whereupon the two officers identified themselves and arrested the applicant, V.S. and F.O., shortly before 2 a.m. They searched all three and found the applicant to be in possession of another two sachets of heroin, PTE 43,000 in cash and a gold bracelet.
13. The applicant was brought before an investigating judge at the Famalição Criminal Court later that day and was detained pending trial.
14. On 29 January 1993 he applied for release. He argued that his detention was unlawful as it infringed Articles 3, 6 and 8 of the Convention. In his submission, he had been detained as a result of the immoral and unlawful conduct of the two police officers, since he had committed the offence solely and exclusively at their behest. They had acted as “agents provocateurs”, particularly as they had not been carrying out an anti-drug-trafficking operation pursuant to a court order.
15. The investigating judge dismissed that application in a decision of 16 February 1993 that was upheld on 21 April 1993 by the Oporto Court of Appeal (Tribunal da Relação).
16. The applicant lodged two applications for habeas corpus with the Supreme Court (Supremo Tribunal de Justiça), which were dismissed on 11 March and 13 May 1993. In its judgment of 13 May the Supreme Court held that although the two police officers had acted as “agents provocateurs” in the sale of the heroin the applicant’s detention was justified since he had been found in possession of the drug.
17. On 26 August 1993 the public prosecutor filed his submissions concerning the applicant and V.S. He did not proceed with the prosecution of the other two people charged, F.O. and J.P.O.
18. The case file was sent to the Santo Tirso Criminal Court (Tribunal de circulo).
19. A hearing was held on 25 November 1993 at which the court heard several witnesses, including the two police officers and F.O.
20. On 6 December 1993 the court convicted the applicant and sentenced him to six years’ imprisonment. It imposed a fine on V.S. equivalent to twenty days’ imprisonment. The court considered that the use of an “undercover” agent or even an “agent provocateur” did not appear to be prohibited under domestic legislation, provided that the sacrifice of the accused’s individual freedom was justified by the values that were being upheld. As the applicant had initially been approached by F.O. the conduct of the PSP officers had not been “decisive” in the commission of the offence. The court explained that it had reached its verdict on the basis of the statements of the witness, F.O., the co-defendant, V.S., the applicant himself and, “mainly”, of the two police officers.
21. On 14 December 1993 the applicant appealed against that decision to the Supreme Court. He complained of a breach of the right to a fair hearing and relied, inter alia, on Article 6 of the Convention.
22. In a judgment of 5 May 1994 the Supreme Court dismissed his appeal and upheld all the provisions of the judgment appealed against, holding that:
“In the instant case it is indisputable that the PSP officers ... were extremely pressing until they were introduced to Francisco Teixeira de Castro. It was, however, only natural that that should have been the course adopted. The police officers knew that V.S. was a drug user and sought to unmask the person responsible for supplying him with drugs. No hashish being available, they tried to obtain heroin and met Francisco Teixeira de Castro, who agreed to their false proposals because he aimed to make a profit out of the deal, thereby exploiting one of the major scourges of our time...
The PSP officers’ perseverance was thus rewarded since they arrested the applicant in possession of what was already a considerable quantity of the drug.
Moreover, as officers in the Public Security Police based at the Famalição police station, the policemen ... were acting as criminal investigators (Article 1 of the Code of Criminal Procedure) under the powers vested in them by statute enabling them, without referring to higher authority, to obtain information about offences, identify offenders and take any steps that were necessary and urgent to preserve evidence (Article 55 § 2 of that Code).
...
Police officers ... act in criminal proceedings as officers of the court, but that does not prevent them taking, in special statutorily defined circumstances, procedural steps in the exercise of their own undelegated powers.
As the public prosecutor said in his submissions, the PSP officers acted within the law and their conduct did not render the evidence obtained inadmissible.
In these circumstances, Francisco Teixeira de Castro’s appeal is wholly unfounded.
In the light of these considerations the Supreme Court dismisses the appeal and upholds all the provisions of the judgment appealed against.”
23. The relevant provisions of Legislative Decree no. 430/83 of 13 December 1983 on the Prevention of Drug Trafficking, which was in force at the material time, read as follows:
“Anyone who, without being lawfully authorised to do so, grows, produces, manufactures, extracts, offers to supply, puts on sale, sells, distributes, buys, assigns or, in any capacity, receives, procures from others, transports, imports, brings in and out of the country or illicitly has in his possession, other than for the reasons stated in Article 36, any of the substances or preparations referred to in tables I to III, shall on conviction be liable to between six and twelve years’ imprisonment and a fine of between 50,000 and 5,000,000 escudos.”
“1. A criminal investigation agent who, in the course of preliminary inquiries and without revealing his identity, accepts either in person or through a third party an offer for narcotics or other psychotropic substances shall not be liable to prosecution in respect of such conduct.
2. A report on such action shall be added to the case file within a maximum of 24 hours.”
24. Drug trafficking is now covered by Legislative Decree no. 15/93 of 22 January 1993. Article 52 of Legislative Decree no. 430/83 is reproduced with no material change in Article 59 of the new decree.
25. The main provisions of the Code of Criminal Procedure referred to in the instant case are as follows:
“1. Evidence obtained through torture, the use of force or any kind of physical or psychological duress shall be invalid and inadmissible.
2. Evidence obtained by any of the following means shall be deemed to have been obtained by physical or psychological duress even where the victim has consented thereto:
(a) interference by ill-treatment, assault, any other method, hypnosis or the use of cruel or deceitful means with a person's freedom to exercise his will or make decisions;
...
4. Where evidence is obtained by means that constitute a serious criminal offence under this Article, it may be used only for the purpose of prosecuting those responsible for obtaining it in that way.”
“The public prosecutor is apprised of the commission of an offence through his own investigations, by police officers responsible for investigating crime or if the offence is reported in accordance with the following provisions.”
“Even if the offender’s identity is not known, an offence must be reported to the prosecuting authorities:
(a) by the police in the event of any offence which comes to their attention;
...”
26. Subject to certain conditions, the Supreme Court accepts the use of “infiltrators” in the fight against drug-trafficking (judgments of 12 June 1990, BMJ no. 398, p. 282; 14 January 1993, Col. Jur. (STJ), 1993-I, p. 270; 5 May 1994, Col. Jur. (STJ), 1994-II, p. 215, delivered in the instant case; and the judgments of 22 June 1995, Col. Jur. (STJ), 1995-II, p. 238; 6 July 1995, Col. Jur. (STJ), 1995-II, p. 261; and 2 November 1995, Col. Jur. (STJ), 1995-III, p. 218).
27. Legal writers in Portugal (and in other European countries) draw a distinction, under the generic term of “infiltrators”, between an “undercover agent” and an “agent provocateur”. The former is someone who confines himself to gathering information, whereas the latter is someone who actually incites people to commit a criminal offence. In Portugal, under the law in force at the material time, legal experts regarded evidence obtained by “undercover agents” as admissible, but were more reserved about evidence obtained by “agents provocateurs” (see, for example, Costa Andrade, Sobre as proibições de prova em processo pènal, Coimbra, 1992, pp. 220 et seq., and A.G. Lourenço Martins, Droga. Prevenção e tratamento. Combate ao tráfico, Coimbra, 1984, pp. 154 et seq., and, more recently, “Droga e direito”, Aequitas, Editorial Noticias, 1994, pp. 278 et seq.).
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-76491
LANGUAGEISOCODE: ENG
RESPONDENT: AUT
BRANCH: CHAMBER
DATE: 2006
DOCNAME: CASE OF JURISIC AND COLLEGIUM MEHRERAU v. AUSTRIA
IMPORTANCE: 2
CONCLUSION: Violations of Art. 6-1;Not necessary to examine further complaint under Art. 6-1;Costs and expenses partial award - Convention and domestic proceedings
JUDGES: Christos Rozakis
TEXT: 11. The second applicant wished to employ the first applicant as a farm hand.
12. On 6 February 1998 the applicants lodged a request with the Bregenz Labour Market Service (Arbeitsmarktservice) for the grant of an employment permit to the second applicant. They submitted that the first applicant, a national of Bosnia and Herzegovina, and his wife had been resident in Austria since November 1992. Both he and his wife had been granted residence permits (Aufenthaltsbewilligung) that were valid until December 1998. The applicants claimed that the first applicant had a right to take up employment in Austria. They referred in that connection to the Geneva Refugee Convention and the Association Agreement between the European Union and Turkey and submitted that those treaties had to be applied by analogy to their case.
13. On 19 March 1998 the Labour Market Service refused the request in accordance with s. 4(6) of the Employment of Aliens Act (Ausländerbeschäftigungsgesetz). It found that the maximum quota fixed for the employment of foreign workers in Vorarlberg had been exceeded and none of the conditions for making an exception under s. 4 (6) of the Act were met.
14. On 6 April 1998 the applicants appealed. They reiterated the arguments they had submitted before the Bregenz Labour Market Service.
15. On 25 May 1998 the Vorarlberg Labour Market Service rejected the first applicant’s appeal as inadmissible. It noted that only the second applicant as the proposed employer, not the first applicant, had the right to lodge a request for the grant of an employment permit. According to s. 21 of the Employment of Aliens Act an alien only became a party to proceedings concerning the issue of a work permit if his personal circumstances were relevant to the decision or if there was no employer. In the present case, however, neither of these conditions applied. In particular, the Bregenz Labour Market Service had based its decision exclusively on the situation of the labour market, and in particular the fact that the maximum quota for the employment of foreign workers had been exceeded. For that reason, the first applicant was not a party to the proceedings.
16. The Vorarlberg Labour Market Service further noted that only certain refugees – namely, those who had indefinite leave to remain, were married to an Austrian national or had a child of Austrian nationality – were exempted from the regulations of the Employment of Aliens Act. The first applicant did not fall into any of those categories. The Association Agreement between the European Union and Turkey was not applicable in the present case as the first applicant was not a Turkish national.
17. The Vorarlberg Labour Market Service went on to dismiss the second applicant’s appeal. It observed that the Bregenz Labour Market Service had proposed a replacement for the first applicant within the meaning of s. 4(2) and (3) of the Employment of Aliens Act, but he had not been taken on. In a telephone conversation the Labour Market Service had been informed by a representative of the second applicant that the proposed replacement had not been employed because the relevant post had already been filled. In further submissions the second applicant stated that the replacement had not complied with the requirements of the post.
18. The Vorarlberg Labour Market Service concluded that the second applicant had no further interest in employing the first applicant. It observed in particular that the second applicant had not given sufficient reasons as to why the proposed replacement could not work as a farm hand, a post which did not require any special qualification. It concluded that the second applicant was not interested in employing a replacement and dismissed the request for an employment permit under s. 4(1) of the Employment Act. It further noted that, in any event, the conditions for granting an employment permit had not been satisfied as the maximum quota fixed for the employment of foreign workers in Vorarlberg had been exceeded and none of the conditions for an exception under s. 4(6) of the above Act applied.
19. On 7 July 1998 the applicants filed a complaint with the Administrative Court and requested an oral hearing. They submitted that the Labour Market Service had not carried out sufficient investigations before reaching its findings. In particular, it had not heard evidence from the second applicant. They further denied that the second applicant had informed the Labour Market Service that the relevant post had been filled, and contested the maximum quota.
20. Referring to Article 17 of the Geneva Refugee Convention, the Association Agreement between the European Union and Turkey, Article 23 of the Universal Declaration of Human Rights, the European Social Charter and Article 6 of the International Covenant for Economic, Social and Cultural Rights, the applicants submitted that the first applicant had a right to take up employment in Austria and had standing to join the proceedings. They also relied on Article 6 and Article 8 of the Convention and Article 1 of Protocol No. 1.
21. They submitted that the first applicant had come to Austria as a Bosnian refugee, had resided there with his wife since 1992 and was in possession of a residence permit that was valid until December 1998.
22. On 15 December 1999 the Administrative Court rejected the first applicant’s complaint and dismissed the second applicant’s complaint. It found that none of the first applicant’s rights had been violated, as the refusal to grant the employment permit was not based on reasons related to the first applicant’s personal circumstances under s. 21 of the Employment of Aliens Act.
23. As to the second applicant’s complaint, it found that the Labour Market Service’s decision was coherent and conclusive. The Labour Market Service had based its decision essentially on the statements of the second applicant. There had, therefore, been no further need to hear representations from the second applicant. The Administrative Court concluded that the Labour Market Service had rightly refused to issue an employment permit under s. 4 (1) of the Employment of Aliens Act. It also decided that it was unnecessary to examine the second applicant’s further submissions questioning whether the maximum quota had been attained.
24. The Administrative Court further noted that the second applicant had never alleged that the first applicant was a refugee within the meaning of the Geneva Refugee Convention. As regards the reference to the European Social Charter and the International Covenant for Economic, Social and Cultural Rights, it noted that those treaties were not directly applicable and so could not create any subjective rights. At most, they might be of assistance in interpreting the domestic legislation. However, having regard to the clear wording of s. 21 of the Employment of Aliens Act and the fact that there was no prospect of that provision being successfully challenged in the Constitutional Court (Verfassungsgerichtshof), as that court had already ruled that proceedings concerning a request for an employment permit under the Employment of Aliens Act did not concern a “civil right or obligation” within the meaning of Article 6 of the Convention, the Administrative Court said that even the above mentioned interpretation would not lead to recognition of the first applicant’s legal standing in the proceedings concerning the grant of an employment permit.
25. It went on to note that the Association Agreement between the European Union and Turkey was not applicable as the first applicant was not Turkish.
26. In accordance with s. 39(2) of the Administrative Court Act (Verwaltungsgerichtshofgesetz), the Administrative Court dismissed the applicants’ request for a hearing as it found that an oral hearing was not likely to contribute to the clarification of the case. Referring to its case-law it further found that the proceedings did not concern a “civil right” within the meaning of Article 6 of the Convention. The decision was served on the applicants’ counsel on 7 February 2000.
27. The second applicant was subsequently granted a permit to employ the first applicant from 14 July 2000 until 13 July 2001 and from 14 July 2001 until 13 July 2002.
28. In February 2002 the applicant’s wife became an Austrian citizen. Consequently, the Employment of Aliens Act is no longer applicable to the first applicant.
29. The Employment of Aliens Act (Ausländerbeschäftigungsgesetz) regulates an alien’s access to the Austrian labour market. The relevant parts of the Act at the material time were as follows:
30. Section 1 stated that the Act was not applicable inter alia to:
- certain refugees who had indefinite leave to remain in Austria, who were married to an Austrian national or who had a child of Austrian nationality (s. 1(2)(a));
- aliens married to an Austrian national if they were in possession of a residence document (Aufenthaltstitel) within the meaning of the Act (s. 1(2)(1)); under the Aliens Act (Fremdengesetz) there are two types of residence document: residence permits (Aufenthaltsbewilligung) and settlement permits (Niederlassungsbewilligung). The relevant provisions of the Aliens Act make it easier for aliens married to an Austrian national to obtain a settlement permit.
Under s. 3(8) of the Employment of Aliens Act the competent Regional Labour Office had to certify that the alien concerned fulfilled the requirements of s. 1(2)(l) before he could take up employment.
31. S. 3(1) and (2) of the Act laid down the principle that a proposed employer required an employment permit (Beschäftigungsbewilligung) if he wished to take on a foreign employee. Without such a permit the contract of employment between the employer and the foreign employee was null and void. However, while he was actually employed an alien hired without an employment permit had the same rights against his employer as he would have had if the contract of employment had been valid. If the lack of an employment permit was due to the employer’s negligence, the foreign employee further enjoyed all the rights to which he would have been entitled upon the termination of a valid employment relationship (s. 29).
32. S. 15 of the Act provided that a request could be made for an “exemption certificate” (Befreiungsschein) in respect of aliens who had been continuously legally employed within the meaning of the Act in Austria for at least five years during the previous eight, and for aliens who had been married to an Austrian national for at least five years and had their residence (Wohnsitz) in Austria. The exemption certificate subsequently relieved the alien or potential employer from the obligation to apply for an employment permit. S. 19 provided that the alien concerned could apply for an exemption certificate to the competent Regional Labour Market Service.
33. If an alien had been continuously legally employed within the meaning of the Act for at least 52 weeks in the previous 14 months, he was entitled to request a personal work permit (Arbeitserlaubnis) which was normally valid for one region only and could be restricted to certain kinds of employment (s. 14 (a)).
34. S. 19 provided that in order to obtain an employment permit the employer had to submit details of the proposed employment of the individual employee to the Regional Labour Market Service concerned. The application could be made by the alien only if there was no employer.
35. According to s. 4(1) an employment permit could only be granted if the situation and evolution of the labour market so allowed and important public or economic interests would not be harmed. Furthermore, specific conditions listed in s. 4(3) had to be fulfilled.
36. S. 4(b)(1) laid down that the situation and evolution of the labour market only allowed an employment permit to be granted in respect of a proposed foreign employee if there were no prior-ranking foreign job applicants. Prior-ranking foreign job applicants included aliens who were in possession of an exemption certificate within the meaning of s. 15 of the Act or who were in receipt of unemployment insurance payments (Arbeitslosenversicherung) (s. 4(b)(2) and (3)).
37. S. 4(c) provided that an employment permit had to be issued ex officio in respect of Turkish nationals falling within the relevant provisions of the Association Agreement between the European Union and Turkey.
38. Under s. 13(a) the Minister for Labour and Social Affairs could fix maximum quotas for the employment of aliens in a specific region (Landeshöchstzahl) for the following year. S. 4(6) provided that once the maximum quota had been exhausted, no further employment permits could be issued unless there were certain exceptional circumstances.
39. S. 21 provided that, in principle, the foreign job applicant was not a party to the proceedings concerning the issue of the employment permit. Exceptions were made where the personal circumstances of the alien were relevant to the decision or where there was no employer.
40. According to the settled case-law of the Constitutional Court and the Administrative Court a refusal to issue an employment permit under S. 4(1) and (6) of the Employment of Aliens Act could not violate a proposed foreign employee’s rights because he had no legal entitlement to the grant under that Act (see VfSlg 14.347/1995, VfSlg 13617/1993; and the Administrative Court’s decision of 16 November 1995, 94/09/0330).
41. The Constitutional Court and the Administrative Court have further held that the refusal of an employment permit to a proposed employer is not a decision concerning the employer’s “civil rights” (see, for example, VfSlg 13617/1993 and Administrative Court’s decision of 29 October 1997, 95/09/0254 with further references).
42. According to s. 39(1) of the Administrative Court Act, the Administrative Court must hold a hearing after its preliminary investigation of the case if a complainant so requests within the time-limit. S. 39(2) and (6) provides, however, that, notwithstanding such a request, the Administrative Court may decide not to hold a hearing if it is apparent from the written pleadings of the parties and the files relating to the previous proceedings that an oral hearing is unlikely to help clarify the case and that the lack of a hearing will not violate Article 6 of the Convention.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-58039
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: CHAMBER
DATE: 1997
DOCNAME: CASE OF HALFORD v. THE UNITED KINGDOM
IMPORTANCE: 3
CONCLUSION: Violation of Art. 8;Violation of Art. 13;Not necessary to examine Art. 10;Not necessary to examine Art. 14;Pecuniary damage - financial award;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings
JUDGES: C. Russo;John Freeland
TEXT: 8. The applicant, Ms Alison Halford, was born in 1940 and lives in the Wirral. From 1962 until her retirement in 1992 she worked in the police service.
9. In May 1983 Ms Halford was appointed to the rank of Assistant Chief Constable with the Merseyside police. As such she became the most senior-ranking female police officer in the United Kingdom.
10. On eight occasions during the following seven years, Ms Halford applied unsuccessfully to be appointed to the rank of Deputy Chief Constable, in response to vacancies arising within Merseyside and other police authorities. In order to be considered for promotion to this rank, Home Office approval was required. However, according to the applicant, this was consistently withheld on the recommendation of the Chief Constable of the Merseyside police, who objected to her commitment to equality of treatment between men and women.
11. Following a further refusal to promote her in February 1990, Ms Halford commenced proceedings on 4 June 1990 in the Industrial Tribunal against, inter alia, the Chief Constable of Merseyside and the Home Secretary, claiming that she had been discriminated against on grounds of sex.
On 14 June 1990, the Chairman and Vice-Chairman of the Merseyside Police Authority were designated a "Special Committee" to handle the issues arising from the discrimination case.
12. Ms Halford alleges that certain members of the Merseyside Police Authority launched a "campaign" against her in response to her complaint to the Industrial Tribunal. This took the form, inter alia, of leaks to the press, interception of her telephone calls (see paragraph 16 below) and the decision to bring disciplinary proceedings against her.
13. Thus, on 14 September 1990, the Special Committee referred to the Senior Officers’ Disciplinary Committee a report written by the Chief Constable about an alleged incident of misconduct on the part of Ms Halford on 24 July 1990. The Disciplinary Committee resolved, on 20 September 1990, to hold a formal investigation and to refer the matter to the Police Complaints Authority and, on 8 February 1991, to press charges. Ms Halford was suspended from duty on full pay from 12 December 1990.
14. She challenged the above decisions by way of judicial review in the High Court. The matter was adjourned by Mr Justice MacPherson in September 1991 in view of a possible settlement. However, the parties failed to reach agreement and the matter came back before him on 20 December 1991. He found that the Chairman and Vice-Chairman of the Police Authority had acted ultra vires and, without imputing ill-motive to them, held that there had been an element of unfairness. He therefore quashed the relevant decisions.
15. The hearing before the Industrial Tribunal took place in June 1992. On 14 July 1992 the proceedings were adjourned pending negotiation between the parties, which led to settlement of the case. Ms Halford was given an ex gratia payment of 10,000 pounds sterling (GBP) by the Chief Constable (the statutory maximum which the Industrial Tribunal could have awarded), together with GBP 5,000 towards her personal expenses by the Home Secretary. It was agreed that she would retire from the police force on medical grounds (arising out of an injury to her knee in 1989). In addition, the Home Office agreed to implement various proposals put by the Equal Opportunities Commission, inter alia to update and review selection procedures for senior posts within the police force.
16. As Assistant Chief Constable, Ms Halford was provided with her own office and two telephones, one of which was for private use. These telephones were part of the Merseyside police internal telephone network, a telecommunications system outside the public network. No restrictions were placed on the use of these telephones and no guidance was given to her, save for an assurance which she sought and received from the Chief Constable shortly after she instituted the proceedings in the Industrial Tribunal that she had authorisation to attend to the case while on duty, including by telephone.
In addition, since she was frequently "on call", a substantial part of her home telephone costs were paid by the Merseyside police. Her home telephone consisted of a telephone apparatus connected, through the "network termination point", to the public telecommunications network.
17. She alleges that calls made from her home and her office telephones were intercepted for the purposes of obtaining information to use against her in the discrimination proceedings. In support of these allegations she adduced various items of evidence before the Commission (see paragraph 21 of the Commission’s report). In addition, she informed the Court that she was told by an anonymous source on 16 April 1991 that, shortly before, the source had discovered the Merseyside police checking transcripts of conversations made on her home telephone.
For the purposes of the case before the Court, the Government accepted that the applicant had adduced sufficient material to establish a reasonable likelihood that calls made from her office telephones were intercepted. They did not, however, accept that she had adduced sufficient material to establish such a reasonable likelihood in relation to her home telephone.
18. Ms Halford raised her concerns about the interception of her calls before the Industrial Tribunal on 17 June 1992. On 2 July 1992, in the course of the hearing, counsel for the Home Secretary expressed the opinion that it was not possible for her to adduce evidence about the alleged interceptions before the Industrial Tribunal because section 9 of the Interception of Communications Act 1985 ("the 1985 Act") expressly excluded the calling of evidence before any court or tribunal which tended to suggest that an offence under section 1 of the Act had been committed (see paragraph 25 below).
19. On 6 December 1991 Ms Halford applied to the Interception of Communications Tribunal ("the Tribunal") for an investigation under section 7 of the 1985 Act (see paragraphs 30-32 below). In a letter dated 21 February 1992, the Tribunal informed her that its investigation had satisfied it that there had been no contravention of sections 2 to 5 of the 1985 Act in her case (see paragraphs 26-29 below). In a letter dated 27 March 1992, the Tribunal confirmed that it could not specify whether any interception had in fact taken place (see paragraph 32 below).
20. In a letter to Mr David Alton MP dated 4 August 1992, the Home Secretary explained that Ms Halford’s complaint regarding the interception of calls made from her office telephones "[did] not fall within [his] responsibilities as Home Secretary nor within the terms of the [1985] Act".
21. The Interception of Communications Act 1985 came into force on 10 April 1986 following the Court’s judgment in Malone v. the United Kingdom (2 August 1984, Series A no. 82). Its objective, as outlined in the Home Office White Paper which preceded it, was to provide a clear statutory framework within which the interception of communications on public systems would be authorised and controlled in a manner commanding public confidence (Interception of Communications in the United Kingdom (February 1985) HMSO, Cmnd. 9438).
22. A "public" telecommunications system is defined as a telecommunications system which is run pursuant to a licence granted under the Telecommunications Act 1984 ("the 1984 Act") and which has been designated as such by the Secretary of State (section 10 (1) of the 1985 Act, by reference to section 4 (1) of the 1984 Act).
23. By section 1 (1) of the 1985 Act, anyone who intentionally intercepts a communication in the course of its transmission by means of a public communications system is guilty of a criminal offence.
24. Section 1 (2) and (3) provide four circumstances in which a person who intercepts communications in this way will not be guilty of the offence. The only one of these which is relevant to the present case is the interception of a communication pursuant to a warrant issued by the Secretary of State under section 2 of the Act (see paragraph 26 below).
25. Section 9 of the 1985 Act provides that no evidence shall be adduced by any party, in any proceedings before a court or tribunal, which tends to suggest either that an offence under section 1 of the 1985 Act has been committed by a public servant or that a warrant has been issued to such a person under section 2 of the 1985 Act.
26. Sections 2 to 6 of the 1985 Act set out detailed rules for the issuing of warrants by the Secretary of State for the interception of communications and the disclosure of intercepted material. Thus, section 2 (2) of the 1985 Act provides:
"The Secretary of State shall not issue a warrant ... unless he considers that the warrant is necessary –
(a) in the interests of national security;
(b) for the purpose of preventing or detecting serious crime; or
(c) for the purposes of safeguarding the economic well-being of the United Kingdom."
When considering whether it is necessary to issue a warrant, the Secretary of State must take into account whether the information which it is considered necessary to acquire could reasonably be acquired by other means (section 2 (2) of the 1985 Act).
27. The warrant must specify the person who is authorised to do the interception, and give particulars of the communications to be intercepted, such as the premises from which the communications will be made and the names of the individuals concerned (sections 2 (1) and 3 of the 1985 Act).
28. A warrant cannot be issued unless it is under the hand of the Secretary of State himself or, in an urgent case, under the hand of a senior official where the Secretary of State has expressly authorised the issue of the warrant. A warrant issued under the hand of the Secretary of State is valid for two months; one issued under the hand of an official is only valid for two working days. In defined circumstances, warrants may be modified or renewed (sections 4 and 5 of the 1985 Act).
29. Section 6 of the Act provides, inter alia, for the limitation of the extent to which material obtained pursuant to a warrant may be disclosed, copied and retained.
30. The 1985 Act also provided for the establishment of an Interception of Communications Tribunal. The Tribunal consists of five members, each of whom must be a lawyer of not less than ten years’ standing, who hold office for five years subject to reappointment (section 7 of and Schedule 1 to the 1985 Act).
31. Any person who believes, inter alia, that communications made by or to him may have been intercepted in the course of their transmission by means of a public telecommunications system can apply to the Tribunal for an investigation. If the application does not appear to the Tribunal to be frivolous or vexatious, it is under a duty to determine whether a warrant has been issued, and if so, whether it was issued in accordance with the 1985 Act. In making this determination, the Tribunal applies "the principles applicable by a court on application for judicial review" (section 7 (2)-(4) of the 1985 Act).
32. If the Tribunal determines that there has been no breach of the 1985 Act, it will inform the complainant, but it will not confirm whether there was no breach because there was no authorised interception or because, although there was such an interception, it was justified under the terms of the 1985 Act. In cases where the Tribunal finds there has been a breach, it has a duty to make a report of its findings to the Prime Minister and a power to notify the complainant. It also has the power, inter alia, to order the quashing of the warrant and the payment of compensation to the complainant. The Tribunal does not give reasons for its decisions and there is no appeal from a decision of the Tribunal (section 7 (7)-(8) of the 1985 Act).
33. The 1985 Act also makes provision for the appointment of a Commissioner by the Prime Minister. The first Commissioner was Lord Justice Lloyd (now Lord Lloyd), succeeded in 1992 by Lord Bingham, also a senior member of the judiciary, who was in turn succeeded in 1994 by another, Lord Nolan.
34. The Commissioner’s functions include reviewing the carrying out by the Secretary of State of the functions conferred on him by sections 2 to 5 of the 1985 Act, reporting to the Prime Minister breaches of sections 2 to 5 of the 1985 Act which have not been reported by the Tribunal and making an annual report to the Prime Minister on the exercise of his functions. This report must be laid before Parliament, although the Prime Minister has the power to exclude any matter from it the publication of which would be prejudicial to national security, to the prevention or detection of serious crime or to the well-being of the United Kingdom. The report must state if any matter has been excluded (section 8 of the 1985 Act).
35. In general,the reports of the Commissioner to the Prime Minister have indicated an increase in new warrants issued, but the Commissioner has been satisfied that in all cases those new warrants were justified under section 2 of the 1985 Act.
36. The 1985 Act does not apply to telecommunications systems outside the public network, such as the internal system at Merseyside police headquarters, and there is no other legislation to regulate the interception of communications on such systems.
37. The English common law provides no remedy against interception of communications, since it "places no general constraints upon invasions of privacy as such" (Mr Justice Sedley in R. v. Broadcasting Complaints Commission, ex parte Barclay, 4 October 1996, unreported).
VIOLATED_ARTICLES: 13
8


ITEMID: 001-78876
LANGUAGEISOCODE: ENG
RESPONDENT: POL
BRANCH: CHAMBER
DATE: 2007
DOCNAME: CASE OF KWIECIEŃ v. POLAND
IMPORTANCE: 3
CONCLUSION: Violation of Art. 10;Not necessary to examine Art. 6-1;Pecuniary damage - financial award;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings;Costs and expenses partial award - domestic proceedings
JUDGES: Nicolas Bratza
TEXT: 5. The applicant was born in 1949 and lives in Dzierżoniόw. He used to run a car repair garage.
6. He was a party to various sets of administrative proceedings before the Dzierżoniów District Office (Urząd Rejonowy) relating to planning matters and disputes with his neighbours. He considered that the decisions of the District Office in his cases were incorrect and unlawful as evidenced by the fact that they were regularly quashed by higher administrative authorities. He formed that view, inter alia, on the basis of proceedings in which the District Office had, in a decision of 25 March 1996 (no. BA7355D/21/10/96), ordered him to demolish a building (a tank) on his property on the ground that it had been erected illegally. Those proceedings, following the applicant's complaints, were discontinued by the District Office on 28 November 1996 in decision no. BA-7355-D/21/24/95-96 in which it held that the building had in fact been erected legally. The applicant also referred to a decision by the District Office of 4 May 1998 refusing him planning permission. On 30 July 1998 the Wałbrzych Governor, reversed that decision following an appeal by the applicant and granted planning permission (decision no. 145/98).
7. The Head of the Dzierżoniów District Office was Mr S.L., who was due to stand for election to the district council (rada powiatu) in the local elections scheduled for 11 October 1998. On 21 September 1998 the applicant sent Mr S.L. an open letter calling on him to withdraw from the election. The applicant sent copies of his letter to the Wałbrzych Governor, the Wałbrzych Regional Assembly, the Dzierżoniów Municipal Council, local mayors, the Prime Minister's Office and a number of local newspapers. A thousand copies of the letter were to be made available to local inhabitants. According to the applicant none of the newspapers published the letter.
“Open letter
Mr S.L.
Head of the Dzierżoniów District Office
Dear Sir,
I kindly request that you once again reflect on the suitability of your standing for election to the district council in the local elections of 11 October 1998. My open letter is not motivated by spite, but is merely intended to express my concern that persons who represent me should be willing to help others in solving their problems instead of doing them harm. I consider that as the Head of the Dzierżoniów District Office you carried out your duties ineptly and sometimes even maliciously, frequently breaking the law and basing your statements on lies. In order to demonstrate that my opinion is not groundless I refer to the [following] supporting facts:
[a] in case no. BA-7355-D/27 a crucial document was lost from the case file by the administrative authority you are in charge of. The public prosecutor's office in Dzierżoniów made an inquiry into this matter;
[b] [administrative] decision no. BA-7355-D/27/35/93-96 of 8 March 1996 was issued by the authority you are in charge of on the basis of documents which were forged in the Dzierżoniów District Office;
[c] in order to intimidate me the administrative authority you are in charge of instituted proceedings no. 7355-D/21 which resulted in decision no. BA7355D/21/10/96 requiring the demolition of a building. Subsequently by virtue of decision no. BA-7355-D/21/24/95-96 the proceedings were discontinued, after it was found that the building had in fact been erected lawfully;
[d] for a period of eight months you have maliciously and unlawfully refused to grant my application for planning permission. This malicious conduct was brought to an end by the Wałbrzych Regional Governor who decided to grant my application (decision no. 145/98);
[e] while defending your position on the refusal to issue a building permit you resorted to a lie (see the article 'War with decisions' that was published in the Gazeta Wrocławska of 30 June 1998);
[f] you instituted enforcement proceedings in violation of my rights. In breach of the law and in excess of your powers you demanded that I perform a non-existent obligation. The enforcement proceedings were discontinued by the Dzierżoniów Tax Office by virtue of decision no. US VIII-924/67/98.
I think that the above few examples should prompt you to consider whether you should withdraw. I have only one question: WOULD YOU LIKE A PERSON WHOM YOU ELECT TO LOCAL GOVERNMENT TO DEAL WITH YOUR CASES AS ILLUSTRATED BY THE ABOVE EXAMPLES?
Yours sincerely
Leszek Kwiecień”
8. On 6 October 1998 Mr S.L. brought an action against the applicant in the Wałbrzych Regional Court (Sąd Wojewódzki) under section 72 of the Law on Elections to Municipal Councils, District Councils and Regional Assemblies (“the Local Elections Act”). He sought an order requiring the applicant to correct untrue information that had been circulated in the open letter and to publish a correction in the local newspapers Gazeta Wrocławska and Tygodnik Dzierżoniowski and other newspapers to which the open letter had been originally addressed. Mr S.L. also requested that the court order the applicant to issue an apology. Finally, he requested that the applicant be ordered to pay PLN 10,000 for the benefit of a charity run by the Order of St. Elizabeth in Dzierżoniów and to pay PLN 10,000 to the claimant in damages.
9. On 7 October 1998 (at about 2 p.m.) the Wałbrzych Regional Court gave its decision. It ordered the applicant to publish in the local newspaper Gazeta Wrocławska and in a letter to the claimant a statement that he had included untrue information in his open letter of 21 September 1998 and the following apology:
“I apologise to Mr. S.L. for defamatory statements about him which were included in my open letter to him of 21 September 1998”.
The court also ordered the applicant to pay PLN 10,000 for the benefit of the charity run by the Order of St. Elisabeth in Dzierżoniów and PLN 10,000 to the claimant in damages.
10. The Regional Court held as follows:
“The court established the following facts:
The defendant sent to the claimant and a large number of persons and institutions his open letter dated 21 September 1998, in which he alleged that the claimant, while the Head of the Dzierżoniów District Office, had been an inept, and sometimes malicious manager and had frequently broken the law. He alleged that a document had been lost from a case file examined by the District Office, that in another case documents had been forged, and that the claimant, with a view to intimidating the defendant, had instituted proceedings and ordered him to demolish a building; [that] for 8 months he had maliciously refused to grant planning permission, [that] he had resorted to a lie in the 30 June 1998 edition of 'Gazeta Wrocławska', and, finally, that he had instituted enforcement proceedings, infringing the defendant's rights, and thus broken the law and abused his authority by demanding that the defendant execute a non-existent obligation (see the defendant's open letter of 21 September 1998).
On 29 June 1995 the Dzierżoniów District Prosecutor's Office discontinued the investigation in case no. Ds 936/95 concerning a lost document since no suspects could be identified. It did not determine when or where a copy of the decision of the Dzierżoniów Municipal Council dated 12 October 1973 had been lost (copy of the decision to discontinue the proceedings of 29 June 1965). ...
On 21 November 1995 the Dzierżoniów District Office instituted proceedings of its own motion in respect of the construction of a tank on the defendant's property, following complaints from neighbours. Those proceedings were discontinued by a decision of 28 November 1996, since it was established in the course of the proceedings that the tank had been constructed legally (..., decision of the Dzierżoniów District Office of 25 March 1996, decision of the Dzierżoniów District Office of 28 November 1996).
On 5 November 1997 the defendant and his wife made an application to the Dzierżoniów District Office for planning permission in respect of a shop/office, a manual car wash, a tank, .... These administrative proceedings were terminated by the Wałbrzych Governor's decision of 30 July 1998 ....
On 30 June 1998 'Gazeta Wrocławska' published an article 'War with decisions', in which the claimant mentioned a sewer junction located at the intersection of Wojska Polskiego Street and Staszica Street in Dzierżoniów. In the defendant's letter published in 'Gazeta Wrocławska' of 10 July 1998 he stated that there was no sewer junction in the place indicated by the claimant.
By a decision of 11 December 1997 the Dzierżoniów District Office ordered the defendant and his wife to produce the documents necessary to obtain permission to use a building. On 10 March 1998 the Dzierżoniów District Office executed the order of 11 December 1997 in lieu of the debtors and at the debtors' expense. On 6 July 1998 the Dzierżoniów Tax Office discontinued the enforcement proceedings ...
The court considered:
The content of the open letter dated 21 September 1998 from the defendant to the claimant, which was received by a large number of people and institutions, constitutes a ground for allowing the application under section 72 of the Local Elections Act. That letter contains untrue information about the claimant and the authority of which he is the head. The [court's] assessment of the evidence showed that it was not true that a document had been lost from the case file in one of the cases examined by the Dzierżoniów District Office, that documents had been forged, or that the District Office had sought to intimidate the defendant or had acted maliciously against him. Nor is it true that the claimant violated the defendant's rights by instituting enforcement proceedings, in the course of which he broke the law and abused his authority. The investigation carried out in respect of the [lost] document did not establish the time or place of its disappearance. The defendant did not prove that the maps prepared by the District Office were forgeries or that the District Office had acted improperly, still less, maliciously. These are the defendant's impressions which are arbitrary and unsupported by evidence. All of the proceedings which were pending before the Dzierżoniów District Office were instituted and carried out on the basis of applicable law and the defendant exercised his right to appeal against individual decisions. It was established that the proceedings were conducted speedily, as evidenced by the dates on which they were instituted and on which they ended. As regards the claimant's statement in 'Gazeta Wrocławska' the court found credible his claims that the statement had not been approved beforehand and so might be inaccurate and that the claimant could not speak about a sewer which had existed in the place he had indicated.
In these circumstances, the court finds the application founded and, pursuant to section 72 subsections 1, 3, 4, 5 and 6 of the Local Elections Act, rules as in the operative part”
11. On 8 October 1998 the applicant complained to the President of the Wałbrzych Regional Court that he had been refused access to the official record of the hearing of 7 October 1998. He also alleged that he had been refused access to the case file, despite the fact that the claimant had adduced new documentary evidence with a view to rebutting the truthfulness of the applicant's statements. He argued that this refusal had had adversely affected his rights as a party to the proceedings, in view in particular of the 24hour time-limit for filing an appeal.
12. At about midday on 8 October 1998 the Regional Court allowed the applicant access to the case file.
13. On 8 October 1998 the applicant filed an appeal with the Wrocław Court of Appeal (Sąd Apelacyjny) and requested that the decision of the Regional Court be quashed.
14. He submitted that his open letter did not amount to electoral campaigning. He relied, inter alia, on Article 10 of the Convention and submitted that his critical remarks concerned Mr S.L. as the head of an administrative authority. The criticism was based on shortcomings in the administrative proceedings in which the applicant was involved, as evidenced by numerous documents, relevant administrative decisions and statements of higher administrative authorities and of the Supreme Administrative Court. Furthermore, the applicant contested the Regional Court's finding that the information contained in the open letter was thoroughly. Further, he submitted that at the hearing the Regional Court had prevented the applicant from making comprehensive submissions in reply to the claimant's lengthy arguments and refused to admit evidence confirming the truthfulness of the statements contained in the open letter.
15. The applicant disputed the Regional Court's order to pay damages to S.L. and argued that the claimant had not proved that he had suffered any damage. In respect of the order to make payment to the institution run by the Order of St. Elisabeth, he denied that it was a charity. The applicant complained that the Regional Court had allowed the claimant's application in its entirety and made orders to pay damages and to make payment to a charity at the maximum end of the scale provided for by law. Further, the applicant referred to the fact that after the hearing before the Regional Court his access to the case file had been impeded, despite the fact that an appeal had to be lodged within 24 hours after the firstinstance decision was pronounced. Finally the applicant made detailed submissions with a view to proving the accuracy of the factual statements contained in the open letter.
16. The local elections took place on 11 October 1998. Mr S.L. was not elected.
17. On 12 October 1998 the Wrocław Court of Appeal dismissed the applicant's appeal. It also made an order for costs against the applicant for PLN 1,500. The Court of Appeal held as follows:
“The appeal is unfounded.
The proceedings provided for under section 72 of the Local Elections Act are aimed at protecting electoral law and ensuring the proper conduct of the electoral campaign by preventing infringements of the personal rights of those standing for election ..., which could affect the result of the elections.
The Regional Court correctly found that the defendant had clearly infringed the personal rights of the claimant as a candidate for local government office by his open letter to the claimant that was sent to various authorities and individuals.
The content of the letter portrayed the claimant in an unambiguously negative light as a candidate for the local council and was aimed at preventing him from being elected. Contrary to the appellant's assertions, in order to achieve that aim it was not necessary to openly discourage [the voters] from voting for a particular candidate. It was enough that a recipient of information about a candidate should come to such a conclusion, which, given the open letter's content, was very likely.
The court concurs with the Regional Court's findings that the defendant did not prove that his allegations against the claimant were true and so justified his criticism. In fact, the allegations related to decisions issued by the District Office and should not have been equated with the claimant as such. A legal right of appeal lay against the decisions [and] in most instances the defendant obtained favourable rulings.
Against the background of those decisions, the applicant's categorically negative assessment of the District Office and the attribution of responsibility to the claimant as a person managing the Office, coupled with the fact that this was made public were unwarranted and unjustified in law. The facts of the case appear to indicate unequivocally that the defendant transferred to the claimant an aversion to the District Office he had developed because of dissatisfaction with one of its decisions; he had used this for the purposes of electoral propaganda, and this [situation] was rightly considered by the Regional Court as amounting to a breach of section 72 of the Local Elections Act .... “
18. On 20 October 1998 the applicant requested a stay of execution of the decision in his case. He submitted that the financial orders made against him, amounting to PLN 20,000, were disproportionate to his earnings and financial situation. On 27 October 1998 the Wrocław Court of Appeal dismissed his request.
19. On 4 December 1998 the applicant filed a cassation appeal against the judgment of the Court of Appeal. On 15 December 1998 the Wrocław Court of Appeal refused to proceed with the cassation appeal, finding that it was inadmissible in law. It observed that section 72 § 3 of the Local Elections Act did not provide for any further appeal against the decision of the Court of Appeal. On 5 January 1999 the applicant appealed against that decision to the Supreme Court. On 3 March 1999 the Supreme Court dismissed the applicant's appeal on the same grounds as those relied on by the Court of Appeal.
20. On an unspecified later date in 1999 the applicant requested the Wrocław Court of Appeal to reopen the proceedings. He submitted that the claimant had not been properly represented in the proceedings before the Court of Appeal. On 20 September 1999 the Court of Appeal rejected the applicant's request. The applicant appealed unsuccessfully. On 31 July 2000 the applicant again requested the reopening of the proceedings. On 8 November 2000 the Świdnica Regional Court (formerly: Wałbrzych Regional Court) rejected his request.
21. On 12 February 2001 the applicant filed a constitutional complaint with the Constitutional Court (Trybunał Konstytucyjny). He alleged that section 72 of the Local Elections Act was incompatible with Articles 32, 45 § 1 and 77 § 2 of the Constitution. On 13 May 2002 the Constitutional Court gave judgment. It ruled that section 72 § 3 of the impugned Act, which was construed as excluding any possibility of having the proceedings reopened, was incompatible with Articles 45 § 1 and 77 § 2 of the Constitution.
22. On 20 May 2002 the applicant requested the Wrocław Court of Appeal to direct the reopening of the proceedings in his case, following the judgment of the Constitutional Court. Later, he submitted three further similar requests. On 17 June 2002 the Court of Appeal rejected his request. The applicant appealed unsuccessfully. On 28 October 2002 the Court of Appeal rejected two of the applicant's further requests for the proceedings to be reopened. In respect of the third request, the Court of Appeal considered that it should be examined by the Świdnica Regional Court. On 16 December 2002 the Świdnica Regional Court rejected the applicant's third request also. All the applicant's appeals were unsuccessful.
23. Having unsuccessfully attempted to reopen the proceedings, on 12 October 2003 the applicant requested the Constitutional Court to provide an interpretation of its judgment of 13 May 2002. On 14 April 2004 the Constitutional Court gave its decision. It ruled that in accordance with Article 190 § 4 of the Constitution its judgment of 13 May 2002 it was possible for proceedings to be reopened after they had been terminated by a decision (postanowienie) given on the basis of a provision which had been declared unconstitutional.
24. On 1 February 1999 the enforcement proceedings against the applicant were instituted in respect of the order requiring him to pay PLN 10,000 for non-pecuniary damage to Mr S.L. They were finally terminated on 10 April 2003 since the applicant had executed the order.
25. In the 2002 local elections the applicant was elected a local councillor for the Dzierżoniów Municipal Council.
26. Article 14 provides as follows:
“The Republic of Poland shall ensure freedom of the press and other means of social communication.”
Article 31 § 3 of the Constitution, which lays down a general prohibition on disproportionate limitations on constitutional rights and freedoms (the principle of proportionality), provides:
“Any limitation upon the exercise of constitutional freedoms and rights may be imposed only by statute, and only when necessary in a democratic State for the protection of its security or public order, or to protect the natural environment, health or public morals, or the freedoms and rights of other persons. Such limitations shall not violate the essence of freedoms and rights.”
Article 54 § 1 of the Constitution guarantees freedom of expression. It states, in so far as relevant:
“Everyone shall be guaranteed freedom to express opinions and to acquire and to disseminate information.”
27. Section 72 of the Law of 16 July 1998 on Elections to Municipal Councils, District Councils and Regional Assemblies (Ordynacja wyborcza do rad gmin, rad powiatów i sejmików województw) (“the Local Elections Act”) provided, in so far as relevant:
“§ 1. If posters, slogans, leaflets, statements or other forms of publicity or campaign materials contain untrue data or information, candidates standing for local election or representatives of electoral committees shall be entitled to apply to the Regional Court for an order:
(1) for the confiscation of such materials;
(2) restraining [the defendant] from publishing such data or information;
(3) for the correction of the information;
(4) requiring [the defendant] to apologise to the aggrieved party;
(5) requiring [the defendant] to pay up to PLN 10,000 to a charity;
(6) requiring [the defendant] to pay to the claimant up to PLN 10,000 in damages.
§ 2. The Regional Court, sitting with a single judge, shall examine the application referred to in § 1 within 24 hours in non-contentious [civil] proceedings. [...]. The court shall, without undue delay, serve on the interested party referred to in § 1, the regional electoral commissioner and the person required to execute the court's decision a decision which will bring the proceedings in the case to an end.
§ 3. An appeal to the Court of Appeal shall lie against the decision of the Regional Court provided it is lodged within 24 hours from the moment the decision was delivered. The Court of Appeal, sitting as a panel of three judges, shall examine the appeal in non-contentious [civil] proceedings, under the same procedure and within the time-limit referred to in § 2. No appeal shall lie against the decision of the Court of Appeal and its decision shall be enforceable with immediate effect.
28. On 3 July 2002 a bill amending the Local Elections Act was tabled in the Sejm. Under the terms of the bill, subsections 5 and 6 of section 72 of the Local Elections Act were to be repealed with a view to aligning that Act with the Law of 12 April 2001 on Elections to the Sejm and the Senate of the Republic of Poland (Ordynacja wyborcza do Sejmu Rzeczypospolitej Polskiej i do Senatu Rzeczypospolitej Polskiej). On 26 July 2002 the Sejm amended section 72 of the Local Elections Act by repealing subsection 6. However, subsection 5 of section 72 of the Local Elections Act remained unchanged.
29. Until 31 May 2001 the conduct of parliamentary elections was primarily governed by the Law of 28 May 1993 on Elections to the Sejm of the Republic of Poland (Ordynacja wyborcza do Sejmu Rzeczypospolitej Polskiej). Section 139 of the Law of 28 May 1993 provided for comparable summary proceedings to those referred to in section 72 of the Local Elections Act. However, that provision laid down a substantially lower ceiling (PLN 2,000) on the amount which a defendant could be ordered to pay to a charity or for non-pecuniary damage. The Law of 12 April 2001 on Elections to the Sejm and the Senate of the Republic of Poland (Ordynacja wyborcza do Sejmu Rzeczypospolitej Polskiej i do Senatu Rzeczypospolitej Polskiej), which entered into force on 31 May 2001, repealed the Law of 28 May 1993. Section 91 of the latter Law, which regulates summary electoral proceedings, does not provide for any pecuniary awards to be granted against a defendant.
30. On 1 October 1998 the Katowice Court of Appeal gave a decision in case no. I ACz 972/98 in which it stated:
“1. Section 72 of the Local Elections Act applies to factual statements contained in the materials pertaining to an electoral campaign. It does not apply to conclusions or opinions based on those factual statements. Only factual statements have an objective character. Every opinion is subjective depending on the viewpoint of the person holding it.
2. No one can be prevented from expressing his views and making comments as long as he or she does not infringe the rights of others. However, even an infringement of personal rights that fails to meet the conditions specified in section 72 will not qualify the holder of the right for protection under that provision, since it is an exception [to the general rule] and thus cannot be interpreted broadly.”
31. On 7 November 2002 the Katowice Court of Appeal gave a decision in case no. I ACz 1956/02 in which it held:
“Section 72 of the Local Elections Act [...] provides an exception to the general rule and so cannot be construed broadly. It is applicable solely to untrue information included in electoral materials. It is not applicable to comments and opinions concerning the characteristics of a candidate [for election]. If such comments and opinions infringe the candidate's personal rights, he may seek redress under the general rules [of protection of personal rights], but not on the basis of section 72 of the Local Elections Act.”
VIOLATED_ARTICLES: 10


ITEMID: 001-109046
LANGUAGEISOCODE: ENG
RESPONDENT: SWE
BRANCH: CHAMBER
DATE: 2012
DOCNAME: CASE OF VEJDELAND AND OTHERS v. SWEDEN
IMPORTANCE: 2
CONCLUSION: Remainder inadmissible;No violation of Article 10 - Freedom of expression -{General} (Article 10-1 - Freedom of expression)
JUDGES: András Sajó;Angelika Nußberger;Dean Spielmann;Elisabet Fura;Ganna Yudkivska;Karel Jungwiert;Mark Villiger;Nona Tsotsoria;Vladimiro Zagrebelsky
TEXT: 7. The applicants were born in 1978, 1981, 1987 and 1986 respectively. The first applicant lives in Gothenburg and the other applicants live in Sundsvall.
8. In December 2004 the applicants, together with three other persons, went to an upper secondary school (gymnasieskola) and distributed approximately a hundred leaflets by leaving them in or on the pupils’ lockers. The episode ended when the school’s principal intervened and made them leave the premises. The originator of the leaflets was an organisation called National Youth and the leaflets contained, inter alia, the following statements:
“Homosexual Propaganda (Homosexpropaganda)
In the course of a few decades society has swung from rejection of homosexuality and other sexual deviances (avarter) to embracing this deviant sexual proclivity (böjelse). Your anti-Swedish teachers know very well that homosexuality has a morally destructive effect on the substance of society (folkkroppen) and will willingly try to put it forward as something normal and good.
-- Tell them that HIV and AIDS appeared early with the homosexuals and that their promiscuous lifestyle was one of the main reasons for this modern-day plague gaining a foothold.
-- Tell them that homosexual lobby organisations are also trying to play down (avdramatisera) paedophilia, and ask if this sexual deviation (sexuella avart) should be legalised.”
9. For distributing the leaflets, the applicants were charged with agitation against a national or ethnic group (hets mot folkgrupp).
10. The applicants disputed that the text in the leaflets expressed contempt for homosexuals and claimed that, in any event, they had not intended to express contempt for homosexuals as a group. They stated that the purpose of their activity had been to start a debate about the lack of objectivity in the education dispensed in Swedish schools.
11. On 11 July 2005 the District Court (tingsrätten) of Bollnäs found that the statements in the leaflets had clearly gone beyond what could be considered an objective discussion of homosexuals as a group and that the applicants’ intention had been to express contempt for homosexuals. It therefore convicted the applicants of agitation against a national or ethnic group, and sentenced the first and second applicants to two months’ imprisonment, the third applicant to a suspended sentence (villkorlig dom) combined with a fine, and the fourth applicant to probation (skyddstillsyn) combined with 40 hours of community service.
12. The applicants as well as the prosecutor appealed against the judgment to the Court of Appeal (hovrätten) for Southern Norrland. The applicants requested the court to reject the charges, to consider the criminal act minor, or at least to reduce the punishments. The prosecutor appealed as regards the first three applicants, requesting the court to consider the criminal act to be aggravated or at least to increase the punishments.
13. On 14 December 2005 the Court of Appeal, referring to the Supreme Court’s judgment of 29 November 2005 in the case NJA 2005 p. 805 (see below under “Relevant domestic law and practice”), rejected the charges against the applicants on the ground that a conviction would amount to a violation of their right to freedom of expression as guaranteed by the Convention.
14. The Office of the Prosecutor-General (Riksåklagaren) appealed against the judgment to the Supreme Court (Högsta domstolen) and requested it to convict the applicants of agitation against a national or ethnic group, arguing that it would not amount to a violation of Article 10 of the Convention in the circumstances of the present case. The applicants disputed the appeal.
15. On 6 July 2006 the Supreme Court convicted the applicants of agitation against a national or ethnic group. The majority of judges (three out of five) first considered decisive for the outcome of the case whether the interference with the applicants’ freedom to distribute the leaflets could be considered necessary in a democratic society and whether the interference with their freedom of expression could be deemed proportionate to the aim of protecting the group of homosexuals from the violation that the content of the leaflets constituted. The majority then held:
“In the light of the case-law of the European Court of Human Rights regarding Article 10, in the interpretation of the expression “contempt” in the provision regarding incitement against a group,, where, in particular, the following should be considered. The handing out of the leaflets took place at a school. The accused did not have free access to the premises, which can be considered a relatively sheltered environment as regards the political actions of outsiders. The placement of the leaflets in and on the pupils’ lockers meant that the young people received them without having the possibility to decide whether they wanted to accept them or not. The purpose of the handing out of the leaflets was indeed to initiate a debate between pupils and teachers on a question of public interest, namely the objectivity of the education in Swedish schools, and to supply the pupils with arguments. However, these were formulated in a way that was offensive and disparaging for homosexuals as a group and in violation of the duty under Article 10 to avoid as far as possible statements that are unwarrantably offensive to others thus constituting an assault on their rights, and without contributing to any form of public debate which could help to further mutual understanding. The purpose of the relevant sections in the leaflets could have been achieved without statements that were offensive to homosexuals as a group. Thus, the situation was in part different from that in NJA 2005 p. 805, where a pastor made his statements before his congregation in a sermon based on certain biblical quotations. The above-mentioned reasons taken together lead to the conclusion that Chapter 16, Article 8 of the Penal Code, interpreted in conformity with the Convention, permits a judgment of conviction, given the present circumstances of this case.”
16. The minority (two judges) found that convicting the applicants would not be proportionate to the aims pursued and would therefore be in violation of Article 10 of the Convention. Hence, the minority wanted to acquit the applicants but gave separate reasons for this conclusion, at least in part. One of them was of the view that the prosecution was not formulated in such a way that the Supreme Court could take into consideration that the leaflets had been distributed at a school and addressed to the pupils, while the other found it natural that the leaflets had been aimed at pupils and agreed with the majority that an overall assessment of the circumstances had to be made.
17. The first three applicants were given suspended sentences combined with fines ranging from SEK 1,800 (approximately 200 euros (EUR)) to SEK 19,000 (approximately EUR 2,000) and the fourth applicant was sentenced to probation.
18. Chapter 16, Article 8 of the Penal Code (Brottsbalken, SFS 1962:700) provides that a person who, in a disseminated statement or communication, threatens or expresses contempt for a national, ethnic or other such group of persons with allusion to race, colour, national or ethnic origin, religious beliefs or sexual orientation, should be convicted of agitation against a national or ethnic group. The offence carries a penalty of up to two years’ imprisonment. If the offence is considered minor the penalty is a fine, and if it is considered to be aggravated the penalty is imprisonment for no less than six months and no more than four years.
19. Agitation against homosexuals as a group was made a criminal offence by an amendment of the law that came into effect on 1 January 2003. According to the preparatory work on that amendment, as reproduced in Government Bill 2001/02:59 (pp. 32-33), homosexuals constitute an exposed group which is often subjected to criminal acts because of their sexual orientation, and national socialist and other racist groups agitate against homosexuals and homosexuality as part of their propaganda. The preparatory work also stated that there were good reasons to assume that the homophobic attitude that had caused certain offenders to attack individuals on account of their sexual orientation derived from the hate, threat and inflammatory propaganda against homosexuals as a group that was spread by the majority of Nazi and other right-wing extremist groups in the country.
20. The Supreme Court, in its judgment of 29 November 2005 (case NJA 2005 p. 805) concerning statements made by a pastor during a sermon which were deemed to have expressed contempt for homosexuals as a group within the meaning of Chapter 16, Article 8 of the Penal Code, considered that the legislation was in accordance with the Convention. However, the Supreme Court found that, the word “contempt” in the provision regarding incitement against a group had to be interpreted more restrictively than the preparatory work appeared to indicate if an application of the provisions that was in line with the Convention was to be achieved. The Supreme Court then found that an application of the provision that was in line with the Convention would not permit a judgment convicting
NON_VIOLATED_ARTICLES: 10
NON_VIOLATED_PARAGRAPHS: 10-1


ITEMID: 001-57636
LANGUAGEISOCODE: ENG
RESPONDENT: NLD
BRANCH: CHAMBER
DATE: 1990
DOCNAME: CASE OF KOENDJBIHARIE v. THE NETHERLANDS
IMPORTANCE: 3
CONCLUSION: Violation of Article 5 - Right to liberty and security (Article 5-4 - Order release);Non-pecuniary damage - finding of violation sufficient (Article 41 - Non-pecuniary damage;Just satisfaction)
JUDGES: N. Valticos
TEXT: 8. Mr Jonas Mohamed Rafiek Koendjbiharie is a Netherlands national, born in Surinam. He resides at present in The Hague.
9. On appeal from a judgment of the District Court (Arrondissementsrechtbank) of The Hague, the Court of Appeal (Gerechtshof) of The Hague sentenced him on 22 June 1979 to a term of nine months’ imprisonment, to be followed by two years’ placement at the Government’s disposal (see paragraph 17 below), for rape aggravated by a previous conviction for the same offence. On 22 January 1980 the Supreme Court (Hoge Raad) dismissed his appeal on a point of law.
10. On coming out of prison, Mr Koendjbiharie was committed on 17 March 1980 to the State psychiatric clinic "Veldzicht" at Balkbrug, from where he absconded on 24 September 1981. Suspected of a further rape, he was arrested on 16 April 1982 and placed in detention on remand, but was acquitted by the District Court of The Hague on 22 July 1982. After a period spent at a remand centre in The Hague, he was examined at the Utrecht "Institute of Selection" from 13 September to 20 December 1982, when he was taken back to the "Veldzicht" clinic.
In the meantime, on 19 April 1982, his placement had been extended by the Court of Appeal of The Hague until 2 April 1984.
11. Mr Koendjbiharie’s lawyer, Mrs Later, learned in March 1984 that, according to the Ministry of Justice, the applicant’s period of placement would end on 8 July rather than 2 April 1984, because it had been suspended during his detention on remand from 16 April to 22 July 1982 (see paragraphs 10 above and 17 below). The applicant objected to this, claiming that his acquittal had deprived the detention of any legal basis and, accordingly, of any effect on the application of Article 37 (b) § 3 of the Criminal Code (see paragraph 17 below).
On 17 May 1984 he filed an interlocutory application (kort geding), for his immediate release, with the President of the District Court of The Hague, relying on this argument. He added that his placement had ended on 2 April 1984 since no application to extend it had been submitted within the statutory time-limit (see paragraph 18 below).
The President, before whom the State had argued in favour of the position taken by the Ministry of Justice, dismissed Mr Koendjbiharie’s application on 29 May 1984. The latter appealed.
12. In the intervening period, on 17 May 1984, the Attorney General at the Court of Appeal of The Hague had requested the Court of Appeal, which had jurisdiction pursuant to Article 37 (b) of the Criminal Code, to extend by one year the applicant’s placement at the Government’s disposal.
At the hearing on 4 June 1984 the Court of Appeal outlined the opinion of the "Veldzicht" clinic, then questioned the member of staff who was responsible for co-ordinating the applicant’s treatment at the clinic. Mrs Later put forward the arguments summarised above (see paragraph 11 above), contending that the Attorney General’s application was inadmissible. In the alternative she referred to Mr Koendjbiharie’s marriage plans which, she maintained, would reduce the risk of his re-offending. She also asked the court to hear, before giving its decision, at least one of the two experts which she had named.
By an interlocutory judgment on 22 June the court decided to hear, on 17 August, the views of the senior physician of the "Veldzicht" clinic.
13. On that date the physician in question failed to appear, but the court did not consider it necessary to call him again, because Mr Koendjbiharie no longer intended to marry.
On 21 September 1984 it extended by one year the applicant’s placement, stating that it had been interrupted during his detention on remand.
The applicant, who had absconded on around 17 September, was informed of this decision by his lawyer, who, after making numerous representations, received a copy of it on 31 October.
14. On 17 January 1985 before the Court of Appeal of The Hague, to which he had appealed against the interlocutory order of 29 May 1984 (see paragraph 11 above), the applicant relied on Article 37 (h) of the Criminal Code. He considered that his continued confinement was unlawful inasmuch as the judgment of 21 September 1984 had not been rendered within two months of the application for extension submitted by the Attorney General (see paragraphs 12-13 above and paragraph 20 below). By a judgment of 18 April 1985, the court rejected this argument on the ground that the delay in giving judgment did not affect the validity of the decision delivered on 21 September 1984 by the Criminal Division. It also dismissed the complaints directed against the President’s order, which it upheld.
15. On 8 March 1985 Mr Koendjbiharie unsuccessfully requested the Minister for Justice to order his conditional release. On 15 April 1985 he went voluntarily to the Utrecht "Institute of Selection", where he was confined.
16. On 31 May 1985 the Attorney General filed an application for a further extension of the applicant’s confinement for a period of one year. During the hearing Mrs Later repeated her earlier arguments (see paragraphs 11 and 14 above), but the court rejected them by a decision of 25 June 1985. However, it refused to allow the Attorney General’s application, finding that there were not sufficient reasons for granting it.
17. Since 1928 the Netherlands Criminal Code (Wetboek van Strafrecht) has contained special provisions applying to persons suffering from a mental deficiency or mental illness. The provisions were substantially amended by an Act of 19 November 1986, which came into force on 1 September 1988. According to Article 37 (as applicable to the events in the present case), the perpetrator of an offence which cannot be imputed to him because he suffers from a mental deficiency or mental illness is not liable to punishment. If the protection of public order so requires, the court may direct that such a person be placed at the Government’s disposal so that he can receive treatment at the Government’s expense.
Such a measure may also be taken in conjunction with a criminal sanction if the convicted person’s responsibility was merely diminished at the time of the offence (Article 37 (a)).
Under Article 37 (b) § 1, the placement lasts for two years unless the Government terminates it earlier. This period commences as soon as the judgment ordering it has become final (paragraph 2 thereof); it is suspended by any other deprivation of liberty resulting from a judicial decision (paragraph 3, according to the most widely accepted interpretation).
18. The court which makes the initial order may extend the confinement, on each occasion for one or two years (Article 37 (b) § 2), on an application by the crown prosecutor, himself acting on the opinion of the director of the clinic. To this end, the crown prosecutor has to submit an application to the court in question not more than two months and not less than one month before the placement period is due to expire (Article 37 (f) § 1). According to case-law, failure to comply with this requirement renders the application inadmissible.
The prosecutor must attach to his application a copy of the clinic’s report on the physical and mental health of the person concerned together with a reasoned declaration - preferably by the doctor treating the patient - on the appropriateness of extending the confinement (Article 37 (f) § 2).
19. Article 37 (g) governs the procedure to be followed for the examination of the application: if possible the court is to hear the person in question and, if it considers additional information to be necessary, interview witnesses and experts. The crown prosecutor and the lawyer of the person confined may attend any hearing, of which a record is drawn up.
By a circular of 16 April 1980, the Minister for Justice issued instructions to the courts to hear the person concerned before extending his placement.
20. By virtue of Article 37 (h) § 1, the court is to give its decision within two months following the lodging of the application. However, Article 37 (b) § 4 states that the person concerned remains at the Government’s disposal until the court has ruled on the extension. In a judgment of 14 June 1974 (Nederlandse Jurisprudentie (NJ) 1974, no. 436), the Supreme Court (Civil Division) took the view that the last-mentioned rule applied even if the court exceeded the two-month time-limit, which was merely of an exhortatory nature. While recognising how inconvenient this interpretation might be for the person concerned, the court noted that this did not mean that the latter was entirely without a remedy against such a breach:
"if, once the time-limit laid down in Article 37 (h) has expired, the decision provided for in that provision is arbitrarily delayed, the Government may find itself required, if necessary as a result of legal action by the person confined, to terminate the placement extended pursuant to Article 37 (b) § 4."
By a judgment of 29 September 1989 (NJ 1990, no. 2) the Supreme Court (Civil Division) gave the following clarification regarding the 1974 decision: in itself the failure to comply with the time-limit laid down in Article 37 (h) does not give rise to an obligation to terminate the placement; the existence of such an obligation depends in particular on the extent to which, and the reasons for which, the time-limit is exceeded as well as the personal and social interests at stake.
According to a judgment of the Supreme Court (Civil Division) of 9 January 1970 (NJ 1970, no. 240), it falls to the court to decide to what extent it must state its reasons in the order extending the confinement, which is neither delivered in public nor appealable (Article 37 (h) § 2), but is served on the person concerned (Article 37 (h) § 3).
21. A person placed at the Government’s disposal may at any time request the Minister for Justice to revoke the measure. By virtue of Article 37 (e), the Minister may terminate the confinement at any moment, unconditionally or conditionally, if personal or material circumstances justify such a decision.
VIOLATED_ARTICLES: 5
VIOLATED_PARAGRAPHS: 5-4


ITEMID: 001-80711
LANGUAGEISOCODE: ENG
RESPONDENT: HRV
BRANCH: CHAMBER
DATE: 2007
DOCNAME: CASE OF SECIC v. CROATIA
IMPORTANCE: 2
CONCLUSION: Violation of Art. 3;No separate issue under Art. 8 or 13;Violation of Art. 14+3;Non-pecuniary damage - financial award;Costs and expenses partial award
JUDGES: Christos Rozakis
TEXT: 6. The applicant was born in 1963 and lives in Zagreb.
7. On 29 April 1999 between 8 and 8.30 p.m. the applicant, together with several other individuals, was collecting scrap metal in Harambašićeva Street in Zagreb.
8. Suddenly, two unidentified men approached the group and attacked the applicant. They beat him all over his body with wooden planks, shouting racial abuse. Another two unidentified men, apparently members of the same group, stood close by and kept watch.
9. Shortly afterwards, following a report by an unknown person about the ongoing fight, a police patrol was sent to the scene. The police interviewed the persons on the spot and went up and down the nearby streets attempting to find the attackers.
10. An ambulance arrived and took the applicant to a nearby hospital. The doctors concluded that no bones had been broken, provided the applicant with painkillers and sent him home to rest.
11. During the night the applicant experienced severe pain and the next day he went to another hospital where he was examined again. It was found that as a result of the assault he had sustained multiple rib fractures, in particular of the ninth, tenth and eleventh left ribs. He was kept in hospital for further treatment and discharged a week later, on 5 May 1999.
12. According to the applicant, since 1 June 1999 he has been having psychiatric treatment as a result of the incident, he had attended the Zagreb Psychiatric Clinic on at least eighteen occasions, and he had been diagnosed with post-traumatic stress disorder characterised by depression, anxiety, panic attacks, fears for his own safety and that of his family, intermittent insomnia and nightmares and, in general, an emotional breakdown.
13. On 15 July 1999 the applicant's lawyer lodged a criminal complaint with the Zagreb Municipal State Attorney's Office (Općinsko državno odvjetništvo u Zagrebu “the State Attorney's Office”) against persons unknown. She gave a factual account of the incident and alleged that the applicant had been seriously injured. The applicant offered his own testimony in evidence and proposed that three eyewitnesses be heard. The applicant requested the State Attorney's Office to investigate the incident, identify the perpetrators and institute criminal proceedings against them.
14. On the same day the applicant's lawyer sent a letter to the Zagreb Police Department (Policijska uprava Zagrebačka “the police”) in which she informed the police of the incident and requested the information necessary for the institution of criminal proceedings. She repeated her request on 30 August 1999.
15. On 31 August 1999 the police informed the applicant's lawyer that the perpetrators had not been identified.
16. On 2 September 1999 the applicant's lawyer wrote to the Minister of the Interior (ministar unutarnjih poslova) informing him of the incident and stating that the police had not identified the perpetrators. She requested decisive police action, relying on the relevant domestic and international human rights standards.
17. On 29 September 1999 the police interviewed the applicant about the events of the evening of 29 April 1999. The applicant described the two attackers vaguely, stating that due to his short-sightedness he was not likely to be able to recognise them.
18. On the same date, the police interviewed B. T., who had been with the applicant on the date in question. He also described the attackers, stating that he had not seen their faces clearly because he had been hiding from them during the attack.
19. Five days later, the police interviewed N. C., who lives in the area where the attack had taken place and who had witnessed the incident. He described the attackers, stating that as everything had happened very fast, he had not been able to see them clearly.
20. On 7 October 1999 the police interviewed Z. B., another eyewitness to the incident, who gave a similar statement.
21. In January 2000 the applicant's lawyer asked the State Attorney's Office twice what steps had been taken to identify and prosecute the perpetrators, at the same time complaining that the investigation ws inadequate.
22. On 10 February 2000 the State Attorney's Office informed the applicant's lawyer that they had urged the police to speed up the investigation.
23. On 21 February 2000 the State Attorney's Office informed the applicant's lawyer that the police had carried out an on-the-spot investigation immediately after having been informed of the incident, that they had interviewed the applicant and several other witnesses and had searched the area but had not identified any person fitting the description of the perpetrators.
24. On 16 March 2000 the applicant's lawyer informed the State Attorney's Office that the individuals who had attacked the applicant had apparently been engaged in numerous attacks against Roma persons in Zagreb in the same period. Two of the Roma who had been attacked, I. S. and O. D., had told the applicant's lawyer that they would be able to identify the perpetrators and that O. D. had personally witnessed the attack on the applicant. Furthermore, the police had already identified and apprehended O. D.'s attackers. The lawyer stressed that all the incidents had been racially motivated, because the attackers had combined physical with racist verbal abuse.
25. On 16 June 2000 the State Attorney's Office informed the applicant's lawyer that the police had been unsuccessful in finding O. D. and that they had no record of any assault on him.
26. On 1 August 2000 O.D. was located and interviewed at the Beli Manastir Municipality State Attorney's Office.. He stated that he himself had been attacked by a certain S. sometime in January 2000 and that the same person had been one of the applicant's attackers. He remembered S. because he had a large scar on his face.
27. The police subsequently identified S. as an alcoholic well known to the local authorities for several criminal offences. However, the police eliminated him as a possible suspect because no other witness had identified him despite his very noticeable scar. Also, according to the information available to the authorities, S. did not belong to any skinhead group. Nothing in the police case file indicates that S. was summoned for questioning regarding the incident.
28. Meanwhile, on 24 May 2000 the applicant's lawyer wrote again to the State Attorney's Office stating that Croatian Radio Television (HRT) had broadcast a report on 14 May 2000 in which a young skinhead had been interviewed about his reasons for engaging in attacks on the Roma population in Zagreb. She claimed that the person interviewed had alluded to the incident of 29 April 1999 involving the applicant.
29. The State Attorney's Office requested the editor of HRT to give them the necessary information in order to identify the person interviewed.
30. On 18 April 2001 the police interviewed the journalist who did the interview. The journalist stated that the skinhead he had interviewed had talked generally about his hatred of the Roma population, but that he had not specifically addressed the incident at issue. The interviewee lived in the part of town where the attack took place and had described how annoying he found it when Roma came to his neighbourhood to collect scrap metal. However, the journalist did not wish to disclose the name of the person interviewed, relying on his right to protect the source of his information.
31. Meanwhile, on 14 February 2001 the applicant's lawyer complained again to the State Attorney's Office and to the Minister of the Interior of the poor quality and unacceptable duration of the investigation. She requested an update and complained that there appeared to be no real effort on the part of the relevant authorities to identify and apprehend the perpetrators. She also gave the prosecuting authorities some new information, namely that the persons who had attacked the applicant belonged to a skinhead group whose members were responsible for numerous attacks on the Roma population in Zagreb. She further described several recent attacks on the Roma population by skinheads and listed names and addresses of both victims of and witnesses to such attacks.
32. On 22 May 2001 the Ministry of the Interior informed the applicant's lawyer that the police had taken appropriate action on receipt of all the information provided by her.
33. On 6 April 2002 the applicant lodged a constitutional complaint with the Constitutional Court, requesting it to order the State Attorney's Office to take all necessary action to complete the investigation as soon as possible and within six months at the latest.
34. On 12 November 2002 the Constitutional Court informed the applicant's lawyer that it had no competence to rule on cases involving prosecutorial inaction during the pre-trial stage of proceedings and took no formal decision on the complaint.
35. The proceedings are still pending at the pre-trial stage.
36. Section 1(2) of the Media Act (Zakon o medijima, Official Gazette no. 59/2004 of 10 May 2004) provides that its provisions shall be applied and interpreted in conformity with the Convention.
The relevant part of section 30 of the Media Act (which used to exist in the Croatian legal system as former section 28(6) of the 2003 Media Act (Official Gazette no. 163/2003 of 16 October 2003)), reads as follows:
“1. A journalist shall not be obliged to reveal the source of published information or information he intends to publish...
4. The State Attorney's Office may, if such a limitation is necessary in the interests of national security, territorial integrity or the protection of health, submit a request to the competent court to have a journalist ordered to reveal the source of published information or information he intends to publish....
6. The court may order a journalist to reveal the source of published information or information he intends to publish if that is necessary for the protection of the public interest and involves extremely significant and serious circumstances, whereby it is indisputably established:
(i) there is no reasonable alternative to revealing the source of information or that the authority indicated in paragraph 4 of this section, which seeks that the source be revealed, has already taken such a measure, and
(ii) the law-based public-interest justification for revealing the source of information clearly prevails over the public-interest justification for protecting the source of information.”
VIOLATED_ARTICLES: 14
3