ITEMID: 001-106436
LANGUAGEISOCODE: ENG
RESPONDENT: ROU
BRANCH: CHAMBER
DATE: 2011
DOCNAME: CASE OF ARCHIP v. ROMANIA
IMPORTANCE: 3
CONCLUSION: Violation of Art. 3 (substantive aspect);Violation of Art. 3 (procedural aspect);Non-pecuniary damage - award
JUDGES: Alvina Gyulumyan;Corneliu Bîrsan;Ján Šikuta;Josep Casadevall;Luis López Guerra;Mihai Poalelungi;Nona Tsotsoria
TEXT: 5. The applicant was born in 1976 and lives in Podoleni.
6. On 7 November 2005, at about 12 noon, the applicant went to Podoleni Town Hall to cash his monthly sickness benefit. Having noticed that the sum cashed was smaller than the amount he had received in previous months he expressed dissatisfaction to the mayor and the deputy mayor.
7. Unsatisfied with the explanations received, the applicant started to insult the civil servants working at the town hall. A few of the witnesses to the incident stated that the applicant was under the influence of alcohol. The applicant denied it.
8. As the applicant could not be calmed down, the mayor and the deputy mayor took him to the police station, which was situated close to the town hall.
9. The applicant alleged that the mayor had hit him at the police station. He did not submit any medical certificate in this connection.
10. On the ground that the applicant continued to behave aggressively and to address threats to those around him, the chief police officer, P.E., handcuffed him to a tree in the courtyard of the police station.
11. According to the applicant and several witnesses, he was kept handcuffed for about two hours and forty-five minutes. The Government averred that the handcuffing lasted one hour and forty-five minutes.
12. As the police station was located in the centre of the village, many inhabitants of the village passed by and saw the applicant handcuffed to the tree in the courtyard. One of them informed the press and the local television station. Reporters arrived at the scene and took pictures of the handcuffed applicant. The incident was covered by an article on 10 November 2005 in the local newspaper Realitatea called ‘The chief police officer of Podoleny molests a fellow citizen’.
13. Five months before the events in question, the applicant had had surgery on his left femur. According to the documents submitted by him, he was hospitalised in the orthopaedics section of Neamţ Hospital between 12 November and 2 December 2002 and between 30 May and 15 June 2005. At the time of the events he was suffering from coxarthrose (arthritis of the hip) and was receiving sickness benefit for that reason.
14. According to the applicant, being kept handcuffed outdoors for such a long time on a cold and wet November day worsened his medical condition. On the basis of a medical certificate issued on 16 January 2008 the applicant had been designated disabled (at medium level) by a medical board.
15. On the day the incident took place, police officer P.E. drafted a report stating that he had had to use force and the handcuffs in order to prevent the applicant from deliberately self-harming. He stated that he had kept the applicant handcuffed for twenty to thirty minutes and that he had stayed close to him all this time. However, his statement was contradicted by the statement of M.D., the former deputy mayor of the village, who testified that the applicant was alone and the police station was closed when he passed by the front of the building on 7 November 2005.
16. On 9 November 2005 the applicant lodged a criminal complaint with the Piatra Neamţ District Court against police officer P.E. and the mayor, accusing them of causing bodily harm and insulting behaviour.
17. By a judgment rendered on 20 January 2006, that court remitted the file to the prosecutor’s office attached to the Neamţ County Court for investigation of the incident. It gave a new legal classification to the offences mentioned in the applicant’s complaint, namely abuse of position and deprivation of liberty.
18. On 24 October 2006 the prosecutor’s office attached to the Neamţ County Court decided not to open a criminal investigation, on the grounds that it was permissible to handcuff an aggressive person.
19. On 21 November 2005 the applicant lodged another criminal complaint against the chief police officer, the deputy chief police officer, the mayor and the deputy mayor. He accused them of deprivation of liberty (under Article 189 § 1 of the Criminal Code).
20. On 17 March 2006 the applicant made a statement at the prosecutor’s office. He stated that he had not been hit by any of the defendants, as he had stated in his initial complaint. He added that he had been persuaded to lodge a criminal complaint by the previous mayor, by a member of the local council of the village, and by the president of an organisation fighting against corruption and for the protection of human rights (Asociaţia Naţională Impotriva Corupţiei, Abuzurilor şi Pentru Drepturile Omului – ANICADO). He also stated that he had been handcuffed for less than ten minutes and that it was legitimate, taking into account his own behaviour. He concluded by stating that he wanted to withdraw his complaint. Afterwards, during the proceedings before the courts, the applicant alleged that he had been forced to make that statement and that nothing in it was true.
21. By a decision delivered on 23 March 2006, the prosecutor’s office attached to the Neamţ County Court decided not to open a criminal investigation. It held that police officer P.E. had taken the necessary measures in order to calm down the applicant, who was using coarse language and insulting the civil servants working at the town hall, and was behaving in an especially insulting way towards the mayor of the village. It also held that handcuffing the applicant was in accordance with the provisions of Law no. 218/2002 regarding the organisation and functioning of the Romanian police (“the Police (Organisation and Functions) Act 2002”), and Order no. 130 of 10 September 2004 regarding the General Inspectorate of Police. It stated that the applicant had not been hit by any police officers.
22. Relying on Article 2781 of the Code of Criminal Procedure, the applicant lodged complaints against the decisions of 23 March and 24 October 2006. The two complaints were joined by the chief prosecutor. On 11 June 2007 the chief prosecutor dismissed the complaints and upheld the previous decisions.
23. The applicant’s complaint against the last prosecutor’s decision was dismissed by the Neamţ County Court on 21 February 2008. It held that the immobilising of the applicant with handcuffs in the courtyard of the police station had been done in accordance with the applicable legislation, and had been necessary, taking into account the applicant’s attitude.
24. An appeal on points of law lodged by the applicant was dismissed by the Bacău Court of Appeal on 17 April 2008, upholding the judgment of the Neamţ County Court.
25. On 22 February 2006 the prosecutor’s office attached to Piatra Neamţ District Court indicted the applicant for outrage against public morals and disturbance of public order under Article 321 § 1 of the Criminal Code.
26. By a judgement of 20 June 2006, the Piatra Neamţ District Court convicted the applicant as charged and sentenced him to one month’s imprisonment, suspended. The judgment remained final, as the applicant did not lodge an appeal on points of law.
27. The definition of the offence of outrage against public morals and disturbance of public order was, at the material time, provided for by Article 321 of the Criminal Code and read as follows:
“Actions by a person who publicly acts or makes gestures, uses words or expressions, or behaves in any other way which is against public morals or which leads to public scandal, are punishable by imprisonment of between three months and two years or by a fine.
If the actions stipulated in paragraph 1 seriously disturb public order, the applicable penalty shall be imprisonment of between six months and five years.”
28. The conditions regarding the use of handcuffs by police officers are provided for by the Police (Organisation and Functions) Act 2002. The relevant articles read as follows:
(1) “In order to deter, prevent and neutralise aggressive behaviour by people who disturb public order and which cannot be brought to an end by other means, police can use protective shields, helmets, rubber truncheons (...) rubber bullet guns and handcuffs, dogs and other means of restraint which do not endanger life or cause serious bodily harm.
(2) The means referred to in the above paragraph may be used against people who:
a) behave in such a way as to threaten the physical integrity, health or property of others;
b) try to enter, enter or refuse to leave the premises of public authorities, political parties, institutions and public or private organisations, jeopardise in any way their integrity or security or prevent them from carrying out their normal activity;
c) Insult or attack those who are exercising public functions;
d) Offer resistance or fail to comply, in any way, with the orders of a police officer, but only if there is a legitimate fear that by their actions they could jeopardise the physical integrity or the life of that police officer.
(3) The use of the means described under the first paragraph must not exceed the level necessary to prevent or neutralise the aggressive behaviour.”
“The use of the means provided by Articles 34 and 35 is prohibited against women with visible signs of pregnancy, against persons with visible evidence of disability and against children, except in cases when they engage in armed attack or in a group, which poses a threat to the life or the integrity of one or more people.”
VIOLATED_ARTICLES: 3


ITEMID: 001-126983
LANGUAGEISOCODE: ENG
RESPONDENT: MDA
BRANCH: CHAMBER
DATE: 2013
DOCNAME: CASE OF TIMUS AND TARUS v. THE REPUBLIC OF MOLDOVA
IMPORTANCE: 4
CONCLUSION: Violation of Article 2 - Right to life (Article 2-1 - Life) (Substantive aspect);Violation of Article 2 - Right to life (Article 2-1 - Effective investigation) (Procedural aspect);Violation of Article 13+2 - Right to an effective remedy (Article 13 - Effective remedy) (Article 2 - Right to life;Article 2-1 - Life)
JUDGES: Alvina Gyulumyan;Ján Šikuta;Johannes Silvis;Josep Casadevall;Kristina Pardalos;Luis López Guerra
TEXT: I. THE CIRCUMSTANCES OF THE CASE
5. The applicants were born in 1990 and 1989 respectively and live in Chişinău.
6. The present case concerns the circumstances surrounding the killing of the applicants’ 29-year-old brother Alexei Vlasi during a police operation on 14 March 2009.
7. On that date at approximately 10.20 p.m. three plain-clothed police officers (N., B. and C.) entered a five-storey apartment block to arrest a person suspected of armed robbery. According to their information, the suspect in question was supposed to be visiting his ex-girlfriend M. that evening, who lived on the fourth floor of the building.
8. At the same time, M. was coming down the stairs from the fourth floor with a group of four friends. None of them was the suspect wanted by the police. Two young women (S. and Z.) and a young man (G.) were at the front of the group and they passed the police officers between the third and second floor.
9. Upon passing the first part of the group one of the police officers immediately apprehended G. Alexei Vlasi and M. were several storeys up and saw the police officers as they approached the rest of the group. Two police officers rushed after Alexei Vlasi, who started to run back up the stairs. They apprehended him on the fifth floor. Shortly afterwards, one of the police officers shot him in the back of the head at very close range. He died instantly.
10. An investigation followed, during which all the witnesses and police officers were questioned. There were two versions of events: that of the group of friends coming down the stairs with the victim (the witnesses), and that of the police officers.
11. The witnesses’ version was that two police officers, N. and C., were armed with pistols which they were holding upwards. Upon passing the first part of the group, the officers saw that there was someone else upstairs and ran in that direction, leaving the first part of the group with police officer N. They then told police officer N. to come upstairs with the rest of the group. After apprehending Alexei Vlasi somewhere on the fifth floor, police officers B. and C. started to beat him up. All the members of the group recounted an almost identical description of what they had heard and the conversation that had taken place between the two police officers and Alexei Vlasi. According to them, one of the police officers (B.) called Alexei Vlasi by his first name and told him to follow them. In response, he addressed B. by his first name and told him to stop beating him up. Sounds of someone being beaten up were heard and Alexei Vlasi threatened to report his injuries to a forensic doctor. The manner in which he said this last sentence was very specific, as he used a mixture of both Romanian and Russian words and the witnesses recounted it in the same manner. It later transpired that police officer B. and Alexei Vlasi already knew each other, as in 1999 the latter had been arrested by the former for bicycle theft.
12. The encounter between police officers B. and C. and Alexei Vlasi took place on the fifth and top floor. Two of the witnesses M. and G. were the closest to the scene at the time, being held by police officer N. on the fourth floor. The fourth floor was separated from the fifth floor by two flights of stairs going in opposite directions joined by an intermediate landing. M. (who also already knew police officer B.) started to shout at him, telling him to leave Alexei Vlasi alone. She called him by his first name and tried to get past police officer N. in order to help Alexei Vlasi. In her struggle with police officer N. she could partly see what was happening on the fifth floor. G. was also there. According to them, police officer B. grabbed Alexei Vlasi by his right hand while officer C. grabbed him by his left hand and started to make his way down the stairs from the fifth floor to the landing between the fifth and fourth floors. At about the third from last step, Alexei Vlasi was facing the handrail and grabbed it. The police officers who were behind him bent him over and, according to one of the witnesses, held both his hands behind his back. According to another witness, one of his hands was on the handrail while the other was held by a police officer behind his back. Police officer C. was holding his pistol at the back of Alexei Vlasi’s head while he was bent over. Police officer B. punched him in the ribs and he repeated again that he would be reporting his injuries to a forensic doctor. Immediately afterwards, he was shot in the back of the head by police officer C. at very close range. He collapsed on the landing between the two flights of stairs, with his feet on the stairs and his body on the landing. Blood started to spurt out of his head wound. M. shouted: “He shot him straight in the head!” and her first reaction was to try to stop him losing any more blood with her hands. In what appeared to be an attack of hysteria she started to scream and to attack police officer B. and shouted “Why did you do that?” Another female friend in the group approached her from behind, hugged her and tried to pull her away from the body.
13. According to the witnesses, Alexei Vlasi did not have anything in his hands after collapsing to the ground. Police officer B. asked officer C.: “What the hell did you do?!” C. did not respond with anything intelligible but remained still, holding his head in his hands. One of the witnesses said they heard him respond in a low voice: “I didn’t want to do that”. He was very pale. According to the witnesses he did not have any visible injuries and could walk perfectly well. Immediately afterwards, officer B. ordered all the witnesses to go into M.’s apartment on the fourth floor. He and police officer N. pushed everybody into her apartment and closed the door. Police officer N. was holding the doorknob so that nobody could leave. Many of the neighbours started to look out of their apartments but the police officers ordered them all to close their doors and stay inside.
14. According to the police officers, when Alexei Vlasi ran up the stairs, they thought he was the suspect they had been after. They claimed to have been convinced that the victim was the suspect they were looking for and that they only realised their mistake after he had been shot. However, during a confrontation which took place later, police officer B. admitted he had known Alexei Vlasi for a long time. The following description of the police officers’ version of events was made after a video reconstruction of the scene, which was filmed during the investigation with the participation of police officer C. on 7 August 2009. Police officer B. recounted an identical version of events.
15. Police officer B. chased Alexei Vlasi and approached him from behind on the landing of the top, fifth floor. He put his hand on his shoulder, called him by the name of the wanted suspect, announced that he was a police officer and asked him to come with him. At that moment Alexei turned around and punched police officer B. in the face with his right fist and attempted to run down the stairs. When he punched police officer B. he did not have anything in his hand. Police officer B. was pushed into a wall on his right and lost his balance. However, police officer C., who had already approached them from behind, managed to apprehend Alexei Vlasi by pulling his left arm near his shoulder (in his initial statement police officer C. stated that he had apprehended him by the collar of his jacket). The apprehension took place on the top three steps of the flight of stairs leading to the fifth floor. Police officer C. was behind Alexei Vlasi on a higher step, holding his hand with his left hand and holding his pistol pointed upwards in his right hand. At that moment, without changing his position, Alexei Vlasi stabbed police officer C. in the right thigh with a knife, which he had been holding in his right hand in reverse grip. Then, without changing the position of the knife, Alexei Vlasi attempted to turn to his left and to stab police officer C. in the face. According to police officer C., Alexei Vlasi had been standing upright. Fearing for his life, police officer C. pulled the trigger of the pistol he was still holding upwards and shot him in the upper neck. The police officers did not say how the victim’s body ended up on the landing between the fifth and fourth floor some six or seven steps lower, but it is reasonable to infer that it rolled down by itself before slumping at the bottom of the stairs.
16. A criminal investigation was formally initiated on 15 March 2009. According to a report describing the scene, Alexei Vlasi’s body was lying in a pool of blood on the intermediate landing between the fourth and fifth floors. There was an open small pocket knife with a lock mechanism with a blade 6.5 cm long in the palm of his right hand. His feet were on the first two steps of the flight of stairs leading to the fifth floor. There were traces of blood on those steps. The report contains pictures of areas stained with blood, such as the landing where the body was lying, the walls around it, and the landing between the third and the fourth floor, where blood had run down from above. No traces of blood appear to have been found above the steps on which the victim’s feet were located. On the wall above the sixth step of the flight of stairs going down to the fourth floor from the landing where the body was lying, there was a bullet hole 2.3 metres above the step, exactly opposite where the witnesses alleged the victim had been shot when facing the handrail.
17. During the investigation, the Chişinău prosecutor’s office obtained several forensic reports which found, inter alia, that the entry wound was on Alexei Vlasi’s upper left neck and the exit wound was on the right side of his forehead above his eyebrow. According to the forensic report, the shot was fired at such close range that gunshot residue was present on the victim’s skin around the entry wound. Another forensic report found that the police officer who had shot him had had an injury to his right thigh made by a knife wound and the other police officer who had allegedly been punched in the face by Alexei had had a bruise on his face. Another expert report did not find any fingerprints on the knife found in Alexei Vlasi’s palm after his death.
18. On 21 September 2009 the Chişinău prosecutor’s office decided to discontinue the criminal investigation on the grounds that the police officer who shot Alexei Vlasi had acted in self-defence. The prosecutor’s office was based on the police officers’ version of events. The applicants challenged the above decision before the Prosecutor General’s Office.
19. On 9 October 2009 a deputy Prosecutor General quashed the above decision on the grounds that it was based exclusively on the police officers’ version of events and that no consideration was given to the witnesses’ statements. The investigator had failed to determine the exact place of the shooting and the victim’s position in relation to the shooter. Moreover, no ballistics test had been conducted in order to determine the trajectory of the bullet.
20. In the reopened investigation some of the witnesses were re-questioned. One of them, G., changed his statements and submitted that he had not seen or heard anything, but later claimed that he had only done so because he had been pressured and threatened to do so by the accused police officers.
21. A ballistics test was carried out with the help of an assistant standing where the police officers alleged the victim had been standing at the time of shooting. The assistant had a cabbage placed on his shoulder, near his head. Through a hole pierced in the cabbage, a thread was led to the bullet hole in the wall, which was considerably lower than the cabbage. Taking into consideration the positions of the entry and exit wounds on the victim’s head, it was concluded that, at the moment of the shooting, the victim had been bent over and not standing upright as suggested by the police officers in their version of events.
22. On 30 June 2010 the Chişinău prosecutor’s office again discontinued the criminal proceedings on similar grounds as the first time, namely on the basis of the police officers’ version of events. It does not appear that the prosecutor attempted to reconcile the findings of the ballistics test with the police officers’ version of events concerning the circumstances of Alexei Vlasi’s shooting. The applicants appealed.
23. On 22 July 2010 a hierarchically superior prosecutor dismissed the applicants’ appeal. They appealed to an investigating judge.
24. On 20 October 2010 an investigating judge from the Rascani District Court upheld the applicants’ appeal, quashed the decisions of 30 June and 22 July 2010 and ordered a re-investigation of the case. He concluded that the investigation had been incomplete and that the conclusions reached by the investigators were inconsistent with the evidence in the case file. The investigating judge also noted that no confrontations had been carried out between all the witnesses and the accused officers, no importance had been attached to the fact that no fingerprints had been found on the knife the victim had allegedly stabbed police officer C. with, and that the investigation had not been conducted within a reasonable time.
25. Following the investigating judge’s decision, the applicants applied to the Prosecutor General’s Office with a request to have the case removed from the Chişinău prosecutor’s office on account of its bias and to have it transferred to another prosecutor’s office. On 8 November 2010 a deputy Prosecutor General rejected the applicants’ request as ill-founded.
26. On 27 April 2011 the Chişinău prosecutor’s office questioned witness M. again. On 17 May 2011 witness G. was questioned again. He submitted having seen police officer B. stabbing police officer C. in his thigh with a knife before being forced into M.’s apartment after the shooting. According to him, this took place between the third and the fourth floor and he had mentioned it during his initial questioning, but no record had been made. Confrontations were organised between M. and police officer B. and between G. and police officer B. on 20 and 24 May 2011, during which each party maintained their statements.
27. On 21 July 2011 witness G. took a lie-detector test to determine whether his statement about police officer B. stabbing police office C. with a knife was truthful. The test result was negative, i.e. G.’s statement was not truthful.
28. On 15 September 2011 the Chişinău prosecutor’s office again discontinued the criminal investigation on similar grounds as the previous occasions. The results of the lie-detector test were added to the decision. The applicants appealed against it and argued that the results of the liedetector test were inadmissible because the test had been carried out by colleagues of the accused police officers rather than by independent experts.
29. On 20 October 2011 the hierarchically superior prosecutor dismissed the applicants’ appeal. They appealed to an investigating judge.
30. On 12 December 2011 an investigating judge from the Rascani District Court upheld the applicants’ appeal, again finding that the investigation had been incomplete. The judge also declared the results of the lie-detector test inadmissible.
31. On 13 April 2012, without conducting any further investigative measures, a prosecutor from the Chişinău prosecutor’s office again discontinued the criminal investigation. The content of the decision was identical to that of the decision of 15 September 2011, including reference to the lie-detector test.
32. On 9 July 2012 the hierarchically superior prosecutor dismissed the applicants’ appeal. They appealed to an investigating judge.
33. On 16 October 2012 an investigating judge from the Rascani District Court again upheld the applicants’ appeal, quashed the decisions of 13 April and 9 July 2012 and ordered a reopening of the investigation.
34. On 11 March 2013 a prosecutor from the Chişinău prosecutor’s office again discontinued the criminal investigation.
35. On 22 April 2013 the hierarchically superior prosecutor dismissed the applicants’ appeal. They appealed to an investigating judge.
36. On 19 July 2013 an investigating judge from the Rascani District Court again upheld the applicants’ appeal, quashed the decisions of 11 March and 22 April 2012 and ordered a reopening of the investigation. The investigation appears to be pending to date.
VIOLATED_ARTICLES: 13
2
VIOLATED_PARAGRAPHS: 2-1


ITEMID: 001-108582
LANGUAGEISOCODE: ENG
RESPONDENT: AUT
BRANCH: CHAMBER
DATE: 2012
DOCNAME: CASE OF KRONE VERLAG GMBH AND KRONE MULTIMEDIA GMBH v. AUSTRIA
IMPORTANCE: 3
CONCLUSION: No violation of Article 10 - Freedom of expression -{General} (Article 10-1 - Freedom of expression)
JUDGES: Elisabeth Steiner;Erik Møse;Julia Laffranque;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska
TEXT: 5. The first applicant company is the owner and publisher of the daily newspaper Kronen Zeitung; the second applicant company is the owner of the online newspaper www.krone.at.
6. In November 2003 criminal investigations were launched in respect of A and B who were suspected of the repeated and serious ill-treatment and sexual abuse of 10-year-old C, which had caused severe injuries. C is A’s biological daughter and B’s stepdaughter. C was taken to hospital and several media reported the case.
7. At that time D, C’s biological mother, who had learned from the media about what had happened to her daughter, wanted to see her but, since she did not have custody of her, this request was refused. Thereupon she contacted the first applicant company in the hope that it would help her obtain contact with C. C.M., a journalist for the first applicant company, visited her at her home, took pictures of her, received from D a picture showing C at the age of three years, accompanied D to the hospital where C was staying and took further pictures there. On the basis of this material, at the end of 2003 several articles on the case of C were published in Kronen Zeitung, as well as a call for donations (Spendenaufruf) for C. Once the X Regional Youth Welfare Agency (Jugendwohlfahrtsträger des Landes X) became aware of these events it advised D and her spouse that it would be in C’s best interests if they refrained from providing pictures of her and further information to the media.
8. After C left hospital in May 2004 she stayed with D. On 9 December 2004 custody of C was transferred to the Regional Youth Welfare Agency for the period of 1 December 2003 to 29 November 2004 and then from 30 November 2004 onwards it was transferred to D.
9. The trial of B and A was held in February 2005 and media interest in the case grew again. At the same time C had a relapse and began suffering from severe psychological problems again, making it necessary for her to be re-admitted to hospital.
10. On 21 February 2005 A and B were convicted of aggravated sexual abuse of minors (schwerer sexueller Missbrauch von Unmündigen), deliberate aggravated bodily harm (absichtliche schwere Körperverletzung) and ill-treatment of minors (Quälen von Unmündigen). They were sentenced to fifteen years’ imprisonment and ordered to pay compensation for non-pecuniary damage.
11. The first applicant company published two articles in Kronen Zeitung on 16 and 22 February 2005 respectively, using the first name of C, the full names of A and B, and illustrating them with photographs of A and B The second applicant company published two articles on its website www.krone.at on 16 and 22 February 2005 and, in addition to the information contained in the articles published in Kronen Zeitung, it also published photos of C, including a close-up of her face.
12. On 12 May 2005, with D’s consent, the District Court transferred custody rights in relation to one specific task back to the Regional Youth Welfare Agency, namely on the issue whether, in respect of the reporting on the trial of A and B, C had compensation claims against certain newspapers and, if necessary, to take the appropriate measures.
13. On 16 February 2005 an article was published in the first applicant company’s newspaper (Kronen Zeitung) entitled “C case: when humans turn into animals” (“Fall C: Wenn Menschen zum Tier werden”), which read as follows:
“Modesty – what a fine word. A word that presupposes respect. But how out of place coming from the mouth of a father who kicked his 10-year-old daughter with his bare feet until several of her ribs were broken. How out of place when the same father claims that he did not treat his daughter’s injuries caused by a red-hot iron because modesty prevented him from touching her breasts...
X Regional Criminal Court. Three judges and eight jurors have to pronounce sentence in three sets of proceedings against A and B (both [age]): A and B, known to Krone readers as the parent torturers. Their victim: C, A’s daughter from his first marriage. A girl who, after her parents’ divorce, lived for a long time with her grandparents in Y. A child who couldn’t wait to join her father and his second wife B here in X – and ended up in hell. Literally ill-treated till she bled. Tortured and abused.
Members of the jury turn ghostly white when public prosecutor T. reads from the prosecution file: ‘C was injured with red-hot spoons, deprived of her virginity with a cooking spoon, burnt with a hot iron. She was hurled against the wall until her skull fractured. C was also tied up to her bed in prayer position for nights on end. She was badly injured with a kitchen knife...’
Why? Sometimes it is not important why human beings behave like animals. Sometimes the facts are enough. And yet Judge J.J. proceeds brilliantly to shed light on every aspect of this crime against a child. For hours on end he listens patiently to the whimpering defence of the father. He patiently sits through the hair-raising account of the stepmother.
The accused agree on only one thing. Neither will admit responsibility. Just a touch of corporal punishment to keep family life intact – that much they admit. Both say they were afraid of or were dominated by the other.
A: ‘I’m fond of all five (!) of my children, including C. I was dominated by my wife, and when she told me that C masturbated I believed her and had to do something’ he says. And his wife: ‘I just wanted to protect my other children from C so I hit her once and I might have pulled her hair.’
Be that as it may, the way the couple defend themselves in court is nothing short of disgusting. As I just said, the facts speak volumes.
You listen to what went on for weeks in the flat in P. Street. You close your eyes – and still see C. Who actually delivered the blows ceases to matter.
What matters is that C is now living safely with her real mother and a caring stepfather. She has just spent her first ever holiday in Tyrol. She’s made friends in a new school.
She can certainly not understand everything that happened. It can only be hoped that one day she’ll be able to forget. And that the father’s wish (‘I’d like to see my C again some day’) is never granted.”
14. On the same day the second applicant company published an article on its website (www.krone.at) entitled “Start of the trial in the C case” (Auftakt zum Prozess im Fall C). Its text is identical to the above article.
15. On 22 February 2005 a further article was published in the first applicant company’s newspaper (Kronen Zeitung), entitled “Maximum sentence for parent torturers!” (“Höchststrafe für Folter-Eltern!”), which read as follows:
“The triangular shape of the iron is like a permanent reminder to C, ‘branded’ into her child’s body. ‘The violence against this girl ranks as one of the most abhorrent of crimes’ says Judge J.J. in pronouncing judgment on the parent torturers. A total of thirty years’ in prison – the maximum sentence.
What must C’s small body have endured? What thoughts must have gone through the 10-year-old girl’s head when her stepmother and her father either ill-treated her or watched the other do it?
It’s not the sober words of forensic expert C.R. that send a shudder down your spine. It’s the thought of what the girl must have endured before ending up in hospital with multiple rib fractures, a fractured skull, burns to her skin, cuts going right through to the bone, stripped of her virginity and dignity. A child’s mind damaged beyond repair.
The ‘parents’ listen with bowed heads to what the experts say about ‘their child’. They hear how cosmetic surgery can reconstruct, but how no medicine can cure the psychological damage. The effects of her ordeal will remain with her for life.
‘She was a very nice, quiet child’ says her former head teacher. ‘We never suspected anything. Her father enquired about her lovingly. When he came in to say that C would not be attending any more because she was in Yugoslavia, no one imagined that she was lying at home injured.”
16. On the same day the second applicant company published an article on its website (www.krone.at) entitled “Maximum sentence for parents in C case” (“Höchststrafe für Eltern im Fall C”). Its text is identical to the above article.
17. On 9 August 2005 C, represented by the Regional Youth Welfare Agency, filed a claim for compensation against the first applicant company, relying on section 7a of the Media Act on the ground that the first applicant company had caused her suffering by revealing her identity as the victim of a criminal offence by publishing her first name, the full names and pictures of A and B in two articles which had appeared on 16 and 22 February 2005. C also filed a compensation claim against the second applicant company relying on sections 7 and 7a of the Media Act for revealing her identity as the victim of a criminal offence and for violating her right to protection of her strictly private life (höchstpersönlicher Lebensbereich) in two articles published on 16 and 22 February 2005.
18. On 27 June 2006 the X Regional Criminal Court (Landesgericht für Strafsachen) granted both requests for compensation. As regards the first applicant company it found that the two articles published in the newspaper Kronen Zeitung on 16 and 22 February 2005 had violated C’s right to protection of her identity as the victim of a criminal offence under section 7a of the Media Act and ordered the first applicant company to pay 4,000 euros (EUR) in compensation to C for each of the articles, altogether EUR 8,000. It also found that C was entitled to compensation from the second applicant company as the articles published on its website on 16 and 22 February 2005, including photos of her, had violated her right to protection of her identity as the victim of a criminal offence and had also interfered with her strictly private life in a manner which exposed and compromised her in public, thereby breaching her rights under section 7 of the Media Act. The Regional Court ordered the second applicant company to pay EUR 6,000 in compensation to C for each of the articles, altogether EUR 12,000. It also ordered the applicant companies to publish a summary of its judgment.
19. As regards the applicant companies’ argument that D, C’s biological mother, had consented to the disclosure of C’s identity and the publication of photos of her, the Regional Court, having heard as witnesses D, her husband, and C.M., a journalist writing for the applicant companies, considered that at the time of the publication of the impugned articles there had been no valid consent as neither the person with custody of C nor any other reference person (Bezugsperson) had consented to the disclosure of C’s identity or the publication of pictures of her. Even considering that D had validly consented to the applicant companies’ reporting on the case of C and to publishing pictures of her back in 2003, that consent could not automatically cover publications two years later in the context of the trial of A and B. After such a long period of time had passed, confirmation of D’s consent should have been sought as in case of doubt nobody can be deemed to have consented to an interference with his or her personality rights for an indefinite period of time. Moreover, in 2005 D had explicitly refused to give her consent to reporting in which C’s identity would be revealed to the public.
20. As regards the compensation claim under section 7 of the Media Act, the Regional Court found that a person was entitled to compensation if his or her strictly private sphere had been discussed in the media in a manner which was apt to expose and compromise him or her in public. Into this strictly private sphere fall the inner circle of one’s private life (engster Bereich der menschlichen Intimsphäre), emotions and physical sensations, one’s sexual life, and contacts with one’s closest persons of confidence (Kontakt mit engsten Vertrauten). The lurid presentation of the publications at issue, which made public highly sensitive details of the ill-treatment and sexual abuse to which C had been subjected and which were particularly humiliating, had interfered with C’s most intimate personal sphere. In weighing the interests of the applicant companies against those of C, the Regional Court considered that the offensive details had not been necessary for informing the reader even in a detailed manner on the case of C, while on the other hand, a minor victim of crimes of this kind was entitled to particularly strong protection. The Regional Court concluded that C’s interests protected by section 7 of the Media Act had not been respected and that she was therefore entitled to compensation.
21. As regards the compensation claim under section 7a of the Media Act the Regional Court found that by mentioning the first name of the victim, her age, the full names of the offenders, indicating their family relationship to the victim, by publishing pictures of the father and the stepmother and in two articles even publishing photos of her, the victim became recognisable to a wide number of persons beyond the circle of those directly informed.
22. In the Regional Court’s view there was no predominant public interest which would have made revealing the victim’s identity permissible. Such a predominant public interest must relate to the identity of the person, and that particular information should have a genuine news value. A merely general interest in appropriate press reporting on criminal cases was not sufficient. C was not a public figure and the mere fact that she had become the victim of a crime which attracted considerable public attention was not sufficient to consider her a person connected with public life. Also, the fact that the media had already reported on her in 2003, in some cases revealing her identity, did not make her a person connected with public life because a considerable amount of time had passed in the meantime and a newspaper’s readership changed constantly. A genuine interest in the identity of the victim could not be established. There was no predominant public interest in revealing the identity of the offenders as the public could be informed on the psychological dynamics of crimes of violence and sexual abuse committed within the family without revealing the identity of the victim. Therefore, these articles, which had described in detail the severe illtreatment of the victim, constituted an intrusion into the victim’s strictly private life and violated her interest in remaining anonymous. She was therefore entitled to compensation on this ground as well.
23. As to the amount of the compensation, the Regional Court stated that it had taken into account the particular gravity of the interference and the particularly large dissemination of the applicant companies’ media. As regards the second applicant company, a higher amount had to be awarded as the compensation was based on two grounds.
24. On 11 October 2006 the applicant companies appealed. They argued that there had been a predominant public interest in being informed of the identity of the offenders. The role of the media as public watchdog meant in the present case that they had the task of informing the public about a defenceless child who had become the victim in a family drama and to warn the public through giving a detailed report including personal details of the offenders and the victim, which was necessary for a public discussion of these events. They argued further that the reporting had been allowed because D had given her consent.
25. On 19 February 2007 the X Court of Appeal dismissed the appeal. It found that according to section 7a of the Media Act the identity of the victim of a criminal offence could only be revealed if there was a predominant public interest in that specific item of information. The permissibility of revealing the identity of an offender did not mean that the identity of the victim could also be disclosed. This question had to be examined separately and carefully. C was not a public figure nor was she a person otherwise connected with public life. Even accepting that there was a public interest in being informed of crimes of violence and sexual abuse committed within the family, that interest could be met without revealing the victim’s identity. Also, the conditions for compensation under section 7 of the Media Act had been met because the articles at issue contained a detailed description of the criminal acts committed, in particular of the injuries caused including the defloration of the victim, and thereby had discussed her strictly private life in a manner that was apt to expose and compromise her in public. As to the alleged consent of D to the applicant companies’ publications, the Court of Appeal found that the Regional Court had properly examined this matter and had concluded that there had been no valid consent. Given that the maximum amount of compensation was EUR 20,000, the sums actually fixed were moderate.
26. Section 7 of the Media Act, which has the title “interference with a person’s most intimate personal sphere” (“Verletzung des höchstpersönlichen Lebensbereiches”), reads as follows:
“(1) If a person’s strictly private life is discussed or presented in the media in a manner which is apt to compromise this person in public, the person concerned may claim compensation from the owner of the media for the injury suffered. The amount of compensation shall not exceed EUR 20,000 ...
(2) No compensation claim under paragraph 1 exists if
1. the publication at issue is based on a truthful report on a public session of the National Council or the Federal Council, the Federal Assembly, a regional diet or a committee of one of these general representative bodies;
2. the publication is true and has a direct connection to public life;
3. in the circumstances it could have been assumed that the person concerned had agreed to the publication;
4. it is a direct broadcast on radio or television (live programme) and the employees or contractors of the radio or television station have not neglected the principles of journalistic diligence;
5. the information has been published on a retrievable website and the owner of the media or its employees or contractors have not neglected the principles of journalistic diligence.”
27. Section 7a of the Media Act which has the title “protection against divulging a person’s identity in special cases” (“Schutz vor Bekanntgabe der Identität in besonderen Fällen”), reads as follows:
“(1) Where publication is made, through any medium, of a name, image or other particulars which are likely to lead to the disclosure to a larger not directly informed circle of people of the identity of a person who
1. has been the victim of an offence punishable by the courts, or
2. is suspected of having committed, or has been convicted of, a punishable offence,
and where legitimate interests of that person are thereby injured and there is no predominant public interest in the publication of such details on account of the person’s position in society, of some other connection with public life, or of other reasons, the victim shall have a claim against the owner of the medium (publisher) for damages for the injury suffered. The award of damages shall not exceed 20,000 euros; additionally, section 6(1), second sentence, shall apply.
(2) Legitimate interests of the victim shall in any event be injured if the publication
1. in the case of subsection (1)1, is such as to give rise to an interference with the victim’s strictly private life or to his or her exposure,
2. in the case of subsection (1)2, relates to a juvenile or merely to a lesser indictable offence (Vergehen) or may disproportionately prejudice the advancement of the person concerned.
(3) No compensation claim under paragraph 1 exists if
1. the publication at issue is based on a truthful report on a public session of the National Council or the Federal Council, the Federal Assembly, a regional diet or a committee of one of these general representative bodies;
2. the publication of the information on the person has been decided officially, in particular for the purposes of criminal justice or public security;
3. the person concerned has agreed to the publication or if the publication is based on information given by that person to the media;
4. it is a direct broadcast on radio or television (live programme) and the employees or contractors of the radio or television station have not neglected the principles of journalistic diligence;
5. the information has been published on a retrievable website and the owner of the media or its employees or contractors have not neglected the principles of journalistic diligence.”
28. Section 6(1) second sentence of the Media Act, to which reference has been made above, reads as follows:
“The amount of compensation shall be fixed according to the extent of the publication, its impact and, in particular, the type of media and how broadly it is disseminated; the compensation must not endanger the economic existence of the media owner.”
29. Article 31 of the Council of Europe Convention on the Protection of Children against Sexual Exploitation and Sexual Abuse of 25 October 2007, CETS No. 201, in so far as relevant reads as follows:
“Article 31 – General measures of protection
(1) Each party shall take the necessary legislative or other measures to protect the rights and interests of victims, including their special needs as witnesses, at all stages of investigations and criminal proceedings, in particular by:
...
(e) protecting their privacy, their identity and their image and by taking measures in accordance with international law to prevent the public dissemination of any information that could lead to their identification;”
30. In the Explanatory Report to the Convention on the Protection of Children against Sexual Exploitation and Sexual Abuse, paragraph 222 gives the following comment on Article 31 of that Convention:
“The article goes on to list a number of procedural rules designed to implement the general principles set out in Article 31: the possibility for victims of being heard, of supplying evidence, of having their privacy, particularly their identity and image protected, and of being protected against any risk of retaliation and repeat victimisation. The negotiators wished to stress that the protection of the victim’s identity, image and privacy extends to the risk of “public” disclosure, and that these requirements should not prevent this information being revealed in the context of the actual proceedings, in order to respect the principles that both parties must be heard and the inherent rights of the defence during a criminal prosecution.”
31. On 28 June 1985 the Committee of Ministers of the Council of Europe adopted Recommendation Rec(85)11 on the position of the victim in the framework of criminal law and procedure. In section F (Protection of privacy) point 15 reads as follows:
“Information and public relations policy in connection with the investigation and trial of offences should give due consideration to the need to protect the victim from any publicity which will unduly affect his private life and dignity. If the type of offence or the particular status or personal situation and safety of the victim make such a special protection necessary, either the trial before the judgment should be held in camera or disclosure or publication of personal information should be restricted to whatever extent is appropriate;”
32. On 31 October 2001 the Committee of Ministers of the Council of Europe adopted Recommendation Rec(2001)16 on the protection of children against sexual exploitation. In Article III (Criminal law, procedure and coercive measures in general) point 32 reads as follows:
“Ensure throughout judicial, mediation or administrative proceedings the confidentiality of records and respect for the privacy of children who have been victims of sexual exploitation.”
33. On 10 July 2003 the Committee of Ministers of the Council of Europe adopted Recommendation Rec(2003)13 on the provision of information through the media in relation to criminal proceedings. The Appendix to that Recommendation contains the following principles:
“Principle 1 - Information of the public via the media
The public must be able to receive information about the activities of judicial authorities and police services through the media. Therefore, journalists must be able to freely report and comment on the functioning of the criminal justice system, subject only to the limitations provided for under the following principles.
...
Principle 8 - Protection of privacy in the context of ongoing criminal proceedings
The provision of information about suspects, accused or convicted persons or other parties to criminal proceedings should respect their right to protection of privacy in accordance with Article 8 of the Convention. Particular protection should be given to parties who are minors or other vulnerable persons, as well as to victims, to witnesses and to the families of suspects, accused and convicted. In all cases, particular consideration should be given to the harmful effect which the disclosure of information enabling their identification may have on the persons referred to in this Principle.
An even stronger protection is recommended to parties who are minors, to victims of criminal offences, to witnesses and to the families of suspects, the accused and convicted persons. ...”
NON_VIOLATED_ARTICLES: 10
NON_VIOLATED_PARAGRAPHS: 10-1


ITEMID: 001-95042
LANGUAGEISOCODE: ENG
RESPONDENT: HRV
BRANCH: CHAMBER
DATE: 2009
DOCNAME: CASE OF KURALIĆ v. CROATIA
IMPORTANCE: 3
CONCLUSION: Remainder inadmissible;No violation of Art. 6-1;No violation of Art. 6-3
JUDGES: Anatoly Kovler;Christos Rozakis;Elisabeth Steiner;George Nicolaou;Giorgio Malinverni;Khanlar Hajiyev
TEXT: 4. The applicant was born in 1957 and is at present serving a twelve-year sentence in Lepoglava State Prison.
5. On 15 September 2002 the Dubrovnik Police Station received an anonymous telephone call from a man who reported the disappearance of his neighbour D.K., the applicant's wife, since 31 August 2002. On 16 September 2002 the police carried out an in situ inspection of the flat and the adjacent premises where D.K. had lived and collected samples of bloodstains and other biological particles found there. DNA testing on the bloodstains carried out on 28 January 2003 showed that these samples belonged to the victim, the applicant and another male person. Meanwhile, on 28 October 2002 a Dubrovnik County Court investigating judge issued a warrant for the search of the applicant's flat in order to identify possible objects connected with a criminal offence which was not specified. The search was carried out by the police on 28 October 2002 but no items of interest were found.
6. On 24 April 2004 at 6 a.m. the applicant was arrested by the police and placed in police custody on suspicion of murdering his wife (D.K.) in Dubrovnik at the end of August 2002 and disposing of her body at the garbage disposal tip near the town of Dubrovnik. He was first interviewed by the police. The applicant's statement to the police in which he confessed to murdering his wife was subsequently excluded from the case file as inadmissible evidence on the ground that he had not been legally represented.
7. At 1.35 p.m. the same day, the applicant was brought by the police officer who had previously interviewed him before an investigating judge of the Dubrovnik County Court (istražni sudac Županijskog suda u Dubrovniku) and was questioned in the presence of a Dubrovnik County Deputy State Attorney. The written transcript of the interview shows that the applicant had been warned about his right to remain silent and to be legally represented. After replying that he had understood the warnings, he chose to defend himself in person. He then stated that he was “not experiencing any mental crisis, that he was aware of everything that he was saying and that the police officers had treated him correctly” and then denied that he had murdered his wife but instead stated that he had found her dead and then disposed of her body out of fear that he would be accused of her murder. The applicant also stated that he had been listening to the judge's dictation for the official record and that his words had been faithfully conveyed, adding that he had no objections as to the content of the written transcript, which he duly signed. The applicant was then placed in pre-trial detention where he remained until his conviction. The parties agree that upon his arrival he was seen by a doctor and that no injuries were recorded.
8. On 26 April 2004 an investigation was opened against the applicant in the Dubrovnik County Court on a suspicion that he had murdered his wife, D.K. and on the same day a lawyer, M.K., was officially appointed to assist the applicant. On 28 April 2004 the defence counsel appealed against the decision to open an investigation, arguing that there had been no relevant evidence that the applicant had murdered D.K. On 28 April 2004 the appeal was dismissed by a three-judge panel of Dubrovnik County Court.
9. On 30 April 2004 the investigating judge heard evidence from three witnesses in the presence of the applicant's counsel. On 18 May 2004 the applicant's pre-trial detention was extended by the Dubrovnik County Court. The applicant's counsel lodged an appeal which was dismissed by the Supreme Court on 26 May 2006.
10. Meanwhile, on 25 May 2004 the same investigating judge again interviewed the applicant, this time in the presence of his officially appointed defence counsel. The applicant was warned that he had the right to remain silent. However, he repeated his previous statement and added some details as to how he had disposed of his wife's dead body. He signed the written transcript of the interview.
11. On 8 June 2004 a confrontation between the applicant and a witness was organised before the investigating judge, in the presence of the applicant's officially appointed counsel. The applicant stated that on the critical occasion he had twice hit his wife. He also stated that he had asked the witness present to help him dispose of his wife's dead body. However, he denied that he had killed her.
12. On 27 July 2004 the applicant informed the Dubrovnik County Court that he was represented by two defence counsel of his own choosing. Consequently, in a decision of 27 July 2004 the officially appointed defence counsel was relieved of his duties.
13. On 6 October 2004 the applicant sent a letter to the Dubrovnik County Court investigating judge, withdrawing the previous confessions he had made before that judge. He alleged that during his interview by the police on 24 April 2004 he had confessed to having murdered his wife because he had been threatened and beaten by four police officers. They had punched him in the stomach, ears and head and slapped him several times. He named one of the officers. They had, he alleged, also threatened him with further beatings if he retracted his confession before the investigating judge. For fear of further beatings, he had made a statement on two occasions before the investigating judge in which he had confessed to having disposed of the dead body of his wife, even though that was not true.
14. On 11 October 2004 the investigating judge excluded, inter alia, the transcript of the applicant's interview by the police from the case file.
15. On 15 October 2004 the Dubrovnik County State Attorney's Office (Županijsko državno odvjetništvo Dubrovnik) filed a bill of indictment against the applicant in the Dubrovnik County Court, charging him with the murder of his wife at the end of August 2002, and the applicant was thus committed to stand trial.
16. During the trial proceedings the applicant, represented by two lawyers of his own choosing, decided to remain silent. The Dubrovnik County Court trial panel heard evidence from witnesses, including O.M., in the presence of the applicant and his counsel, obtained forensic and other relevant reports and in its judgment of 16 February 2005 found the applicant guilty as charged and sentenced him to twelve years' imprisonment. The findings as to the applicant's guilt relied on the statements of the applicant given by him before the investigating judge on two occasions as well as on the other evidence such as a DNA analysis of the bloodstains found in the applicant's home and hearsay evidence given by one of the witnesses. The relevant part of the judgment reads as follows:
“The defendant's confession during the investigation and the evidence given by witnesses O.M. and M.A. indicate that one evening at the end of August 2002 the police arrived at the applicant's flat on account of the fact that music was being played too loud, while the fact that D.K. had actually died was twice confirmed by the defendant during the investigation. Furthermore, the witness O.M. said that the defendant had told him that he had killed his wife and asked him to help him transport her dead body to Zaton in order to throw it into the sea.
A careful analysis of the defendant's statements given on two occasions during the investigation and of all other evidence presented at the hearing led this court to conclude that the defendant had acted as described in the operative part of this judgment and that all the statutory elements of the crime in question, in both its objective and subjective aspects, had thus been fulfilled.
During the investigation, the defendant, as mentioned above, twice confirmed the death of his wife, whose body has never been found.
...
... [witness] O.M., who has no sensible motive for laying any blame on the defendant, has, during the entire proceedings, expressly stated that the defendant, the day after the critical day at the end of August 2002, had ... told him as follows: 'After you had left that night, I killed her.' And when [O.M.] had asked 'Whom?', the defendant had answered 'D.' and had asked him to transport her dead body with his car to Zaton in order for the defendant to throw it into the sea, which the witness had refused.
...
... [during] an in situ inspection of the [defendant's] flat traces of her [the defendant's wife] bloodstains were found ...”
17. The applicant and his counsel both appealed against the judgment. In his personal appeal the applicant complained, inter alia, of the fact that the judgment relied on the statements given by him before the investigating judge even though he had subsequently retracted them and had informed the investigating judge that he had given these statements under duress. His lawyers had moreover appealed on the same basis. In a judgment of 8 February 2006 the Supreme Court (Vrhovni sud Republike Hrvatske) upheld the applicant's conviction. The relevant part of the judgment reads as follows:
“.. the fact that D.K. had died was twice confirmed by the defendant in the statements given by him during the investigation. He described in detail how he had disposed of the dead body of his wife D, and the first-instance court correctly accepted this part of the statement while at the same time dismissing the part of his statement in which he denied murdering his wife. In this connection the defendant's allegations that his statements during the investigation had been given as a result of the threats and beatings by the police and that he had told the investigating judge what the police had instructed him to say are unfounded. No basis for such allegations can be found in the evidence or the case file. On the contrary, when first questioned by the investigating judge the defendant expressly stated that he was not in a state of mental crisis, that he was aware of what he was saying and that the police officers of the Dubrovnik Police Department had treated him correctly.”
18. The subsequent constitutional complaint lodged by the applicant was dismissed by the Constitutional Court on 9 October 2007.
19. The relevant part of the Code of Criminal Procedure (Official Gazette nos. 62/2003 – Zakon o kaznenom postupku) provides as follows:
“...
(3) Where not otherwise provided by law, the State Attorney shall bring a criminal prosecution where there is a founded suspicion that an identified individual has committed a criminal offence liable to official prosecution and where there are no statutory obstacles for prosecution of that person.”
“(1) All State bodies and all legal entities are obliged to report criminal offences liable to official prosecution, whether they have been informed thereof or have learned about such offences on their own.
...”
“(1) A criminal complaint shall be lodged with a competent State Attorney in writing or orally.
...
(3) Where a criminal complaint has been lodged with a court, a police force or a State Attorney lacking competence, they shall receive the complaint and immediately forward it to the competent State Attorney.”
NON_VIOLATED_ARTICLES: 6
NON_VIOLATED_PARAGRAPHS: 6-1
6-3


ITEMID: 001-75216
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: ADMISSIBILITY
DATE: 2006
DOCNAME: CIHAN v. TURKEY
IMPORTANCE: 4
CONCLUSION: Inadmissible
TEXT: The applicant, Mr Cihan Ağa, is a Turkish national, who was born in 1926 and lives in Ankara. He is represented before the Court by Mr A. Erdoğan, a lawyer practising in Ankara.
The facts of the cases, as submitted by the parties, may be summarised as follows.
Until October 1994 the applicant lived in Hüllükuşağı, a village of the Ovacık district in Tunceli, where he owns property.
In 30 December 1993 the Ministry of the Interior nullified the legal personality of Hüllükuşağı.
In October 1994 security forces forcibly evacuated Hüllükuşağı on the grounds of security. The applicant and his family then moved to Ankara, where they currently live.
On 16 April 2001 the legal representative of the applicant, Mr Erdoğan filed a petition with the Ministry of the Interior requesting compensation for the damage the applicant had suffered and permission to return to his village.
On an unknown date the Ministry of the Interior replied to the applicant stating that he could return to the Arslandoğmuş village.
On 10 April 2002 Mr Erdoğan filed a further petition with the Ministry of the Interior reiterating his request for compensation.
On 9 May 2002 the State of Emergency Unit of the District Governor’s office in Ovacık sent the following reply to Mr Erdoğan:
“Your petition to the Ministry of the Interior will be considered under the ‘Return to the Village and Rehabilitation Project’.
As it is possible to reside in the Arslandoğmuş village, return to this village is at the applicant’s discretion. However, his request for compensation will not be considered since Ağa Cihan does not reside in the Ovacık district.”
In 1992 the status of Hüllükuşağı was changed from village to hamlet. It was then attached to the village of Arslandoğmuş which is 1,5 kilometres away. At the relevant time, there were only a few families living in the Hüllükuşağı hamlet given that it lacked sufficient infrastructure. The security forces had not forced the applicants to leave their village.
Currently there was no obstacle preventing villagers from returning to their homes and possessions in their villages. Persons who had left their villages as a result of terrorism had already started returning and regaining their activities in their villages. In this connection, in a letter of 15 October 2002 the District Governor of Ovacık informed the applicant that he could return to his village and resume his economic activities if he wished. The District Governor further noted that all villages were open for re-settlement and that the authorities had been carrying out maintenance work to repair the infrastructure of the villages in the region.
On 14 July 2004 the Law on Compensation for Losses resulting from Terrorism and the Fight against Terrorism was passed by the Grand National Assembly and entered into force on 27 July 2004 (“Compensation Law”). That Law provided for a sufficient remedy capable of redressing the Convention grievances of persons who were denied access to their possessions in their villages.
In that connection Damage Assessment and Compensation Commissions were set up in seventy-six provinces. Persons who had suffered damage as a result of terrorism or of measures taken by the authorities to combat terrorism could lodge an application with the relevant compensation commission claiming compensation.
The number of persons applying to these commissions had already attained approximately 170,000. A further 800 persons, whose applications were pending before the Court, had also applied to the compensation commissions. Many villagers had already been awarded compensation for the damage they had sustained.
A description of the relevant domestic law can be found in the Court’s decision of İçyer v. Turkey (no. 18888/02, §§ 44-54, 12 January 2006) and in its judgment of Doğan and Others v. Turkey (nos. 88038811/02, 8813/02 and 8815-8819/02, §§ 31-35, ECHR 2004-VI).


ITEMID: 001-60917
LANGUAGEISOCODE: ENG
RESPONDENT: AUT
BRANCH: CHAMBER
DATE: 2003
DOCNAME: CASE OF JAKUPOVIC v. AUSTRIA
IMPORTANCE: 2
CONCLUSION: Violation of Art. 8;Non-pecuniary damage - finding of violation sufficient;Costs and expenses partial award - domestic proceedings;Costs and expenses award - Convention proceedings
JUDGES: Georg Ress
TEXT: 8. The applicant was born in 1979 and lived at the time of the events in Vöcklabruck (Austria). He presently lives in Banova Jaruga (Croatia).
9. In February 1991 the applicant arrived in Austria together with his brother, born in 1985, and joined his mother who had already been living and working there. Subsequently his mother remarried. The applicant's family now consists of his mother, his stepfather, his brother and two half sisters, born in 1993 and 1995.
10. On 14 January 1994 the Police Authorities filed a criminal complaint against the applicant on suspicion of burglary. On 14 March 1994 the Wels Regional Court (Landesgericht) provisionally discontinued the criminal proceedings and ordered the applicant to compensate the victims for the damage caused. On 11 May 1995 the Vöcklabruck District Administrative Authority issued a prohibition to possess arms (Waffenverbot) under the Weapons Act (Waffengesetz) against the applicant as he had, in April 1995, attacked several persons with an electroshock device. On 31 May 1995 the applicant was remanded in custody on suspicion of having committed some fifty burglaries.
11. On 28 August 1995 the Wels Regional Court convicted the applicant of burglary and sentenced him to five months' imprisonment, suspended for a probationary period of three years. On the same day the applicant was released from detention on remand.
12. On 28 September 1995 the Vöcklabruck District Administrative Authority (Bezirkshauptmannschaft) issued a ten year residence prohibition against the applicant. Having regard to the above events and in particular the applicant's conviction, it found that his further stay in Austria was contrary to the public interest. These considerations were not outweighed by his family links in Austria. On 16 October 1995 the applicant, assisted by counsel, appealed against this decision. Relying on Article 8 of the Convention he submitted, inter alia, that the District Administrative Authority had failed to take sufficiently into account his private and family situation.
13. On 18 December 1995 the applicant was again remanded in custody on suspicion of having committed further burglaries in December 1995. On 26 February 1996 the Wels Regional Court again convicted the applicant of burglary and sentenced him to a further term of imprisonment of ten weeks, suspended for a probationary period of three years. On the same day the applicant was released from detention on remand.
14. On 2 May 1996 the Upper Austria Public Security Authority (Sicherheitsdirektion) dismissed the applicant's appeal against the District Administrative Authority's decision of 28 September 1995. As regards the applicant's family situation, the authority noted that the applicant's mother, his brother and two half sisters were living in Austria. However, having regard to the applicant's serious criminal behaviour the issue of a residence prohibition was nevertheless necessary in the public interest.
15. On 21 June 1996 the applicant filed a complaint with the Constitutional Court (Verfassungsgerichtshof) against the residence prohibition. On 30 September 1996 the Constitutional Court declined to deal with the matter for lack of prospects of success and remitted the case to the Administrative Court (Verwaltungsgerichtshof).
16. On 9 December 1996 the applicant supplemented his complaint to the Administrative Court which dismissed it on 19 February 1997. It found that the authorities had correctly found that the residence prohibition was necessary in the public interest and did not constitute a disproportionate interference with the applicant's family situation.
17. On 4 April 1997 the applicant was taken into detention with a view to his expulsion and, on 9 April 1997, he was deported to Sarajewo.
VIOLATED_ARTICLES: 8


ITEMID: 001-66590
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: ADMISSIBILITY
DATE: 2004
DOCNAME: SITOKHOVA v. RUSSIA
IMPORTANCE: 2
CONCLUSION: Inadmissible
JUDGES: Christos Rozakis
TEXT: The applicant is a Russian national, born in 1934 and living in Vladikavkaz. The respondent Government are represented by Mr. P.A. Laptev, representative of the Russian Federation at the European Court of Human Rights.
The facts of the case, as submitted by the parties, may be summarised as follows.
In 1990 the applicant was involved in negotiations to buy part of a house from a third party.
In 1998 the applicant brought a court action in connection with a contract which had been prepared during the negotiations. On 13 July 1998 the Vladikavkaz District Court granted her claim. The judgment was not challenged and it acquired legal force on 23 July 1998.
On 29 January 1999, pursuant to a “protest” (application for supervisory review) by the President of the Supreme Court of North Ossetia-Alania, the Presidium of the Supreme Court of the Republic of North Ossetia-Alania quashed the judgment and remitted the case to the first instance, indicating that the District Court had failed to observe the necessary procedural formalities. The applicant was present on that occasion.
On 15 October 1999 the applicant’s claim was dismissed by the District Court. On 8 February 2000 the Supreme Court of the Republic of North Ossetia-Alania upheld the decision given on 15 October 1999.
An application for supervisory review was rejected by the Supreme Court of Russia on 11 April 2000.
Code of Civil Procedure as in force at the relevant time
Article 319
“Judgments, court rulings and decrees which have entered into force, may be reviewed by way of supervision following a “protest” lodged by the persons listed in Article 320 of the Code”.
Article 320
“The persons competent to lodge a protest are:
the Prosecutor General - against judgments, orders, and decisions of any court;
the chairman of the Supreme Court - against resolutions of the Presidium of the Supreme Court as well as against judgments and orders of the Judicial College on Civil Cases of the Supreme Court acting as a court of first instance;
Deputies of the General Prosecutor - against judgments, orders, and decisions of any court with the exception of the resolutions of the Presidium of the Supreme Court;
Deputies of the President of the Supreme Court - against orders and judgments of the Judicial College on Civil Cases of the Supreme Court acting as a court of first instance;
the chairman of the Supreme Court of an autonomous republic, area, regional, or city court, court of autonomous region, and court of an autonomous district, the Prosecutor of an autonomous republic, area, region city, autonomous region, and autonomous district - against judgements and orders of district (city) people’s courts and orders of Judicial Colleges on Civil Cases of respectively the Supreme Court of an autonomous republic, area, regional, city court, court of an autonomous region, and court of an autonomous district that reviewed the case according to an appellate procedure”.
Article 322
“The persons listed in Article 320 are entitled, subject to certain conditions, to obtain the case file in a civil case in order to establish whether there are any grounds for lodging a “protest” by way of a supervisory review”.
Article 323
“Officials who are entitled to lodge “protests” in accordance with the supervisory procedure may suspend execution of the judgments, orders, and decisions concerned until the supervisory review proceedings are completed”.
Article 329 § 2
“The court which carries out the supervisory review may annul the judgment in whole or in part and remit the case to the first or appeal instance for fresh consideration”.


ITEMID: 001-58092
LANGUAGEISOCODE: ENG
RESPONDENT: ITA
BRANCH: CHAMBER
DATE: 1997
DOCNAME: CASE OF SCARFÒ v. ITALY
IMPORTANCE: 4
CONCLUSION: Art. 6 inapplicable
JUDGES: C. Russo;N. Valticos;R. Pekkanen
TEXT: 7. Mr Raffaele Vincenzo Scarfò, a civil servant employed by the Calabria Regional Council, lives in Reggio di Calabria.
8. On 4 May 1982 he instituted proceedings in the Calabria Regional Administrative Court (“the RAC”) for judicial review of a decision of the Regional Council (Consiglio Regionale) assigning him, at the time when he was recruited to a permanent post, to a staff category lower than the one to which he considered himself to be entitled on the basis of the duties he had performed during the period when he was employed on a fixed-term contract.
9. On 28 May 1982 the applicant asked for a date to be fixed for the hearing and for the case to be dealt with speedily. On 14 January 1994 he filed a further application for the proceedings to be expedited.
10. In a judgment of 5 December 1994, deposited with the registry on 13 February 1995, the RAC gave judgment against the applicant.


ITEMID: 001-89962
LANGUAGEISOCODE: ENG
RESPONDENT: FIN
BRANCH: CHAMBER
DATE: 2008
DOCNAME: CASE OF JUPPALA v. FINLAND
IMPORTANCE: 2
CONCLUSION: Violation of Art. 10;Non-pecuniary damage - award
JUDGES: Giovanni Bonello;Lech Garlicki;Ledi Bianku;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä
TEXT: 5. The applicant was born in 1929 and lives in Ylöjärvi.
6. On 20 July 2000 she took her daughter's son to a doctor. The boy was three years old at the time.
7. According to the doctor's report, the applicant said that she had noticed a bruise on the boy's back which might have been caused by a blow, and that his behaviour had been abnormal since he had visited his father, T. The applicant had strong suspicions that the injuries were consistent with physical violence. Furthermore, it was written in the report that the applicant had informed the doctor that the boy had said that the bruise had been caused by a punch. The applicant further stated that in January 2000 she had noticed signs of violence for the first time, but that T. had explained that the boy had fallen down the stairs. The doctor wrote in his report that the bruise noted on the boy's back was consistent with a punch, thereby supporting the boy's account, given also to the doctor, that he had been hit by his father.
8. Later the same day, the doctor reported the alleged violence to the child welfare authorities, although the applicant had objected to a report being made.
9. On 17 August 2000 T. requested the police to investigate whether the applicant had committed an offence by alleging that he had hit his son. He maintained that he had never struck the boy. On 22 August 2000 he further requested the police to investigate whether the applicant had committed an offence, such as deprivation of liberty, by taking the boy to a doctor.
10. On 26 April 2001 the public prosecutor preferred charges against the applicant for defamation without better knowledge (ei vastoin parempaa tietoa tehty herjaus, smädelse dock icke emot bättre vetande). According to the charge, the applicant had given information to the doctor implying that T. had struck his son. The doctor had been given to understand that T. had struck the boy on several occasions, most recently during the previous weekend. The applicant did not have reasonable grounds to support her allegation. On 21 May 2001 T. joined the proceedings and claimed compensation from the applicant for non-pecuniary damage amounting to 10,000 Finnish marks (FIM, about 1,682 euros (EUR)) and reimbursement of his legal expenses.
11. On 24 August 2001 the Tampere District Court (käräjäoikeus, tingsrätten) held an oral hearing. In its judgment the court held that it remained unclear whether the applicant had implied that the boy had been hit by his father or whether the doctor's report merely recorded his own impression based on his discussion with the applicant and the child. Applying the principle in dubio pro reo, the court rejected the charge. The presiding judge, however, dissented, finding the applicant guilty of defamation without better knowledge. She noted that, taking the facts as presented, there were no reasonable grounds to support the belief that T. had struck the boy. She further found that the boy's own statement could not as such be considered a reasonable ground, especially given the fact that it was not known whether the applicant had discussed the bruise with him before visiting the doctor.
12. T. appealed to the Turku Court of Appeal (hovioikeus, hovrätten). On 20 February 2002, after an oral hearing, the Court of Appeal overturned the District Court's judgment and convicted the applicant of defamation committed without better knowledge. No fines or other penalties were imposed, but the applicant was ordered to pay compensation for non-pecuniary damage amounting to EUR 504.56 and legal costs of EUR 2,861.11. It reasoned:
“At the hearing [the applicant] and [the doctor] have essentially given the same account of the events as before the District Court. [The applicant] has, however, stated that having noticed the bruise on the child's back on the evening before the visit to the doctor's, she asked the boy where it had come from and he said that his father had hit him.
According to the doctor, the applicant had provided the preliminary data, which he had first written down on paper. Later they had been recorded in the medical report based on his dictation. He had dictated the information immediately after the applicant and the child had left the room. The report did not contain any conclusions reached by the doctor himself.
On the basis of the doctor's testimony and the case record, it has been proved that the applicant intentionally, albeit without better knowledge, said that [the father] was guilty of having struck his three-year-old son in such a way that she in fact gave the doctor to understand that the father had struck his son during the weekend preceding 20 July 2000. However, the Court of Appeal finds that it has not been shown that the applicant gave the doctor to understand that the father had struck his son at other times.
As described above, the applicant had discussed the bruise with the boy. The boy may also have heard the applicant make her preliminary statement at the doctor's before the doctor spoke to him. Having regard to this and the boy's age, the mere fact that he told the doctor that his father had hit him cannot be considered to be significant enough to constitute reasonable grounds for the allegation. Nor has the applicant presented any other such reasons for the allegation on the basis of which she could be considered to have had reasonable cause to believe her insinuation to be true.
On the above grounds, the Court of Appeal considers that the applicant is guilty of defamation without better knowledge.
According to the doctor, the applicant had been worried about the child's condition and he considered that the visit had been justified. Having regard to the circumstances, it was forgivable that the applicant, in whose care the child had been, had not thoroughly weighed what she had told the doctor. For these reasons the Court of Appeal does not impose a sentence, in accordance with Chapter 3, Article 5, subsection 3 (2) [of the Penal Code].”
13. The applicant sought leave to appeal from the Supreme Court (korkein oikeus, högsta domstolen). She argued that the right to freedom of expression was violated if a person could not rely on the account of a child who had visible signs of injury or discuss his or her own impressions of the facts with a doctor, who was bound by professional secrecy, without being afraid of later being found guilty of defamation.
14. On 17 December 2002 the Supreme Court refused leave to appeal.
15. Section 10 (as amended by Act no. 969/1995, which took effect on 1 August 1995 and remained in force until 1 March 2000) of the Constitution Act (Suomen Hallitusmuoto, Regeringsform för Finland; Act no. 94/1919), provided:
“Everyone has freedom of expression. Freedom of expression entails the right to express, disseminate and receive information, opinions and other communications without prior prevention by anyone. More detailed provisions on the exercise of freedom of expression are laid down by an Act. Provisions on restrictions relating to pictorial programmes that are necessary for the protection of children may be laid down by an Act.”
The same provision appears in Article 12 of the current Constitution of 2000 (Suomen perustuslaki, Finlands grundlag; Act no. 731/1999).
16. Section 8 of the Constitution Act (as amended by Act no. 969/1995) corresponded to Article 10 of the current Constitution, which provides that everyone's right to private life is guaranteed.
17. Chapter 27, article 2(1), of the Penal Code (rikoslaki, strafflagen; Act no. 908/1974, as in force until 1 October 2000), provided that a person alleging, albeit not contrary to his or her better knowledge, that someone had committed an offence was to be convicted of defamation and sentenced to a fine or imprisonment for a maximum term of six months, unless he or she could show reasonable grounds for the allegation.
For the conduct to be intentional, the offender had to be aware of the fact that the defamatory allegations might subject the person concerned to contempt, or harm his or her profession or career. In cases where the offender did not understand the defamatory nature of the conduct, it has not been considered intentional, but the fact that the offender has been mistaken about the truth of the defamatory allegation has not altered the intentional nature of his or her conduct. Only in cases where the offender has been able adequately to prove the truth of his or her allegations has it been possible to free him or her from liability.
In one of its precedents (KKO 2006:10), the Supreme Court held that a person had committed defamation when she had failed to verify the truthfulness of the information she had provided when requesting a criminal investigation by the police and reporting to the social welfare authorities under the Child Welfare Act her suspicion that another person had committed sexual and other offences.
18. Under the terms of Chapter 5, section 6, of the Tort Liability Act (vahingonkorvauslaki, skadeståndslagen; Act no. 412/1974), damages may be awarded for the distress arising from an offence against someone's liberty, honour or domestic peace or from another comparable offence.
19. Section 40 of the Child Welfare Act (lastensuojelulaki; barnskyddslagen, Act no. 683/1983), in force until 1 January 2008, provided that if, in the course of his or her activities, an employee or elected official in health care, social welfare, education, the police or the church learned about a child in apparent need of family-oriented or individual child welfare measures, he or she had to notify the social welfare board without delay. The provision has been interpreted to mean that any confidentiality obligation is superseded by the duty to notify.
The wording “apparent need of child welfare measures” referred to section 12, which set a clearly lower threshold for child welfare measures than the threshold set in section 16 for taking a child into public care. Even a less than serious risk to the child's health or development warrants notification to the social welfare board. The word “apparent” is used in order to encourage notifications also in cases where there exists no full evidence of or certainty about the existence of such a risk. When a child welfare official receives notification, he or she must verify the facts and assess whether support measures are needed. The wording has left room for interpretation of how certain the notifier must be of the child's need for child welfare measures. In particular, there has been uncertainty about whether the mere suspicion of such a need suffices for notifying the authorities.
20. According to the Government Bill (HE 252/2006 vp) for the enactment of the new Child Welfare Act (Act no. 417/2007, which entered into force on 1 January 2008), in order to guarantee children's safety the threshold for making a child welfare notification under Section 25 should not be excessively high. If a person considering making such a notification has difficulties in assessing whether his or her concern about the child is sufficient to justify notifying the authorities, he or she may, if necessary, consult the social welfare authorities, for instance, without communicating the child's name to them. The provision expressly provides that any confidentiality obligation is superseded by the duty to notify. Section 25(6) provides that the child welfare authorities must report to the police any case where there is good reason to suspect that a sex offence, homicide or bodily injury has been committed on a child in the environment in which he or she was growing up and the suspected offence carries a maximum penalty of at least two years' imprisonment.
21. As a rule, the child concerned is entitled to be informed of the notifier's identity. In practice, however, cases exist where disclosure of the identity of a private person making such a notification would be particularly harmful to the child's best interests or the notifier's safety, for example. Authorities need not provide a party with information on identity if the conditions mentioned in section 11 of the Openness of Government Activities Act (laki viranomaisten toiminnan julkisuudesta; lagen om offentlighet i myndigheternas verksamhet; Act no. 621/1999) are fulfilled: a party shall not have the right of access to a document if such access would be contrary to a very important public interest, the interest of a minor or some other very important private interest. According to the Government Bill (HE 30/1998 vp), the best interests of a child may justify protecting the notifier's identity on the basis of an overall consideration of the circumstances of each individual case. As an example, the Government Bill mentions the situation where the notifier is a person close to the child, for instance a grandparent, and to disclose his or her identity would break the child's relationship with an adult important to his or her welfare. Disclosure of the notifier's identity may, in individual cases, also be in conflict with the public interest if providing the information might defeat the purpose of child welfare measures.
22. In September 2005 the Ombudsman for Children (lapsivaltuutettu, barnombudsmannen) took up her duties. The Ombudsman is entrusted with the task of promoting the best interests and rights of the child in general administration, social policy and legislation. The Ombudsman may issue recommendations, guidelines and advice but she cannot receive individual complaints. The Ombudsman is an independent authority who works in liaison with the Ministry of Social Affairs and Health (sosiaali- ja terveysministeriö, social- och hälsovårdsministeriet). The Parliamentary Ombudsman (eduskunnan oikeusasiamies, riksdagens justitieombudsman) retains her mandate regarding children and continues to act on individual complaints addressed to her.
23. According to Article 19 of the United Nations Convention on the Rights of the Child (1989; yleissopimus lapsen oikeuksista, konventionen om barnens rättigheter; SopS 60/1991) – ratified by all members of the Council of Europe – provides:
“1. States Parties shall take all appropriate legislative, administrative, social and educational measures to protect the child from all forms of physical or mental violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation, including sexual abuse, while in the care of parent(s), legal guardian(s) or any other person who has the care of the child.
2. Such protective measures should, as appropriate, include effective procedures for the establishment of social programmes to provide necessary support for the child and for those who have the care of the child, as well as for other forms of prevention and for identification, reporting, referral, investigation, treatment and follow-up of instances of child maltreatment described heretofore, and, as appropriate, for judicial involvement.”
24. In its concluding observations (CRC/C/15/Add. 272) of 20 October 2005 on the third periodic report of Finland (CRC/C/129/Add.5) the United Nations Committee on the Rights of the Child shared the concern of the Parliamentary Ombudsman of Finland that violence against children and sexual abuse within families were among the most serious obstacles to the full implementation of children's rights in Finland. In the light of Article 19 of the Convention, the Committee recommended that Finland, inter alia, strengthen awareness-raising and education campaigns with the involvement of children in order to prevent and combat all forms of child abuse and also strengthen measures to encourage reporting of instances of child abuse, including for children in alternative care, and to prosecute the perpetrators of these acts.
VIOLATED_ARTICLES: 10