ITEMID: 001-57627
LANGUAGEISOCODE: ENG
RESPONDENT: FRA
BRANCH: CHAMBER
DATE: 1990
DOCNAME: CASE OF HUVIG v. FRANCE
IMPORTANCE: 2
CONCLUSION: Violation of Art. 8;Just satisfaction not applied
TEXT: 7. Mr Jacques Huvig and his wife Janine, née Sylvestre, currently live at Grau-du-Roi (Gard). Before he retired, Mr Huvig, with his wife’s assistance, ran a wholesale fruit-and-vegetable business at Varennes-sur-Amance and Montigny-le-Roi (Haute-Marne).
8. On 20 December 1973 the Director of the Haute-Marne Tax Office lodged a complaint against the applicant and two other persons alleging tax evasion, failure to make entries in accounts and false accounting.
A judicial investigation was begun on 26 December by an investigating judge at Chaumont, assigned by the President of the Chaumont tribunal de grande instance.
Mr and Mrs Huvig’s home was searched as were their business premises, pursuant to a warrant issued on 14 March 1974 by the investigating judge. The latter also issued a warrant to the gendarmerie at Langres (Haute-Marne) on 4 April requiring them to monitor and transcribe all Mr and Mrs Huvig’s telephone calls - both business and private ones - on that day and the next day.
The telephone tapping took place from about 8 p.m. on 4 April 1974 until midnight on 5 April; on 6 April the second in command of the gendarmerie unit at Langres made a "summary report" on the tapping, which was subsequently brought to the knowledge of the applicants.
9. Mr Huvig was charged with tax evasion, forgery of private and business documents, failure to keep proper accounts, aiding and abetting misuse of company property and receiving funds derived from misuse of company property, and on 9 April he appeared before the investigating judge, who remanded him in custody; he was released on 11 June 1974.
Mrs Huvig, who from 20 March 1974 onwards was questioned several times as a witness, was charged on 13 May 1976 with aiding and abetting tax evasion and forgery of business documents.
10. On 23 December 1976 the investigating judge committed them for trial - with the other two persons mentioned above - at the Chaumont tribunal de grande instance, in Mr Huvig’s case on charges of forgery, uttering, aiding and abetting misuse of company property, aiding and abetting tax evasion, aiding and abetting fraud, receiving funds derived from misuse of company property, and false or incomplete accounting, and in Mrs Huvig’s case on charges of aiding and abetting forgery, aiding and abetting tax evasion and aiding and abetting improper keeping of accounts.
They raised as a preliminary issue several pleas of nullity, one of which related to the telephone tapping carried out on 4 and 5 April 1974. On 26 January 1982 the court ordered that these pleas should be heard as part of the main trial, and on 30 March 1982 it rejected them. Of the telephone tapping it said:
"This investigative measure, even if it must remain an exceptional one, is within the investigating judge’s powers as part of his inquiries during an investigation;
No infringement of the rights of the defence has been substantiated, especially as in the instant case the results were unusable and did not serve as a basis for the prosecution ..."
In the same judgment it was held that the various offences with which the applicants were charged had been made out, except that of aiding and abetting fraud in Mr Huvig’s case; in consequence, Mr Huvig was sentenced to eight months’ imprisonment, six months of which were suspended, and Mrs Huvig to two months suspended.
11. The defendants, the civil party seeking damages and the prosecution appealed to the Dijon Court of Appeal.
The defence again raised the pleas of nullity that had been put forward unsuccessfully at the original trial. The Court of Appeal rejected all of them on 17 March 1983. As regards the impugned telephone tapping, it gave the following reasons for its decision:
"[According to Mr Huvig, the investigating judge] infringed the rights of the defence and the guarantees afforded by law to all accused persons, seeing that, even though he had not yet had his first interview with the investigating judge (which took place on 9 April 1974 ...), he nonetheless had to be regarded as having already been charged, since the public prosecutor’s application of 20 December 1973 was directed against him among others;
But, as the trial court rightly pointed out, this investigative measure, while it must remain an exceptional one, is one of the prerogatives of an investigating judge carrying out inquiries as part of an investigation he is conducting;
The Court has been able to check and satisfy itself that this operation, which to be effective must be carried out without the knowledge of the person suspected - or even charged -, was carried out on the investigating judge’s authority and under his supervision, without any subterfuge or ruse being employed;
The operation, moreover, lasted only 28 hours ..., did not yield anything usable and did not serve as a basis for the prosecution;
Nothing enables it to be established that the procedure thus followed had the result of jeopardising the exercise of the rights of the defence, since it must be borne in mind that Mr Huvig had not at that stage been officially charged by the investigating judge and that Article 81 of the Code of Criminal Procedure empowers the latter to take all investigative measures he deems useful for establishing the truth ...;
..."
At the same time the Dijon Court of Appeal upheld the judgment under appeal as to the finding that the defendants were guilty but increased the sentences passed on them by the trial court, sentencing the applicant to two years’ imprisonment, twenty-two months of which were suspended, and to a fine of 10,000 French francs, and his wife to six months suspended.
12. The applicants appealed to the Court of Cassation on points of law. In the first of their grounds of appeal the Court of Appeal’s judgment was criticised for its failure to quash the investigating judge’s warrant of 4 April 1974:
"Firstly, investigating judges are not empowered by Article 81 of the Code of Criminal Procedure to tap the telephone of anybody - whether it be a person charged with a criminal offence, a third party or a witness - and such a procedure is contrary to the law, since the Code of Criminal Procedure has regulated searches, the seizing of property and the taking of evidence from witnesses and has not conferred on investigating judges the power to tap the telephones of persons against whom there is substantial, consistent evidence of guilt, such a procedure being prohibited both by Articles 6 and 8 (art. 6, art. 8) of the Convention ... and by Article 9 of the Civil Code, Articles L. 41 and L. 42 of the Post and Telecommunications Code and Article 368 of the Criminal Code;
Secondly, an individual who has been personally proceeded against by the civil party seeking damages and in respect of whom ... the public prosecutor has requested that an investigation be commenced is a party to the proceedings and must consequently be regarded as a person charged with a criminal offence within the meaning of Article 114 of the Code of Criminal Procedure; such a person must, therefore, before any statement is taken by the investigating judge, be informed of the charges against him, of his right not to make any statement and of his right to the assistance of a lawyer; the investigating judge accordingly cannot, without infringing the rights of the defence, record such a person’s telephone conversations without the person’s knowledge;
Lastly, since what is at issue is a nullity that is absolute as a matter of public policy - unlawful telephone tapping being a criminal offence -, it is of little importance that the conversations recorded were not used as the basis for the prosecution."
On pages 6 and 7 of the supplementary pleadings there were references to the Klass and Others judgment of the European Court of Human Rights (6 September 1978, Series A no. 28).
The Criminal Division of the Court of Cassation dismissed the appeal on 24 April 1984. It rejected the foregoing ground in the following terms:
"In the judgment [of the Dijon Court of Appeal] the plea that the investigation proceedings were null and void because of the nullity of the warrant issued by the investigating judge on 4 April 1974 ordering that Huvig’s telephone conversations should be monitored was rejected on the grounds that this measure was within the contemplation of Article 81 of the Code of Criminal Procedure and that as, moreover, it had not served as a basis for the prosecution, it had not had the effect of jeopardising the exercise of the rights of the defence;
As these reasons stand and seeing, furthermore, that it has not been found - nor even alleged by the appellants - that the investigative measure in question, which was carried out under the supervision of the investigating judge, entailed any subterfuges or ruses, the Court of Appeal did, without laying itself open to the objection raised in the ground of appeal, provide a legal basis for its decision;
..." (Recueil Dalloz Sirey (DS) 1986, jurisprudence, pp. 125-128)
13. French criminal law adopts the principle that any kind of evidence is admissible: "unless otherwise provided by statute, any type of evidence shall be admissible to substantiate a criminal charge ..." (Article 427 of the Code of Criminal Procedure).
There is no statutory provision which expressly empowers investigating judges to carry out or order telephone tapping, or indeed to carry out or order various measures which are nonetheless in common use, such as the taking of photographs or fingerprints, shadowing, surveillance, requisitions, confrontations of witnesses and reconstructions of crimes. On the other hand, the Code of Criminal Procedure does expressly confer power on them to take several other measures, which it regulates in detail, such as pre-trial detention, seizure of property and searches.
14. Under the old Code of Criminal Procedure the Court of Cassation had condemned the use of telephone tapping by investigating judges, at least in circumstances which it regarded as disclosing, on the part of a judge or the police, a lack of "fairness" incompatible with the rules of criminal procedure and the safeguards essential to the rights of the defence (combined divisions, 31 January 1888, ministère public c. Vigneau, Dalloz 1888, jurisprudence, pp. 72-74; Criminal Division, 12 June 1952, Imbert, Bull. no. 153, pp. 258-260; Civil Division, second section, 18 March 1955, époux Jolivot c. époux Lubrano et autres, DS 1955, jurisprudence, pp. 573-574, and Gazette du Palais (GP) 1955, jurisprudence, p. 249). Some trial courts and courts of appeal which had to deal with the issue, on the other hand, showed some willingness to hold that such telephone tapping was lawful if there had been neither "entrapment" nor "provocation"; this view was based on Article 90 of the former Code (Seine Criminal Court, Tenth Division, 13 February 1957, ministère public contre X, GP 1957, jurisprudence, pp. 309-310).
15. Since the 1958 Code of Criminal Procedure came into force, the courts have had regard in this respect to, among others, Articles 81, 151 and 152, which provide:
"The investigating judge shall, in accordance with the law, take all the investigative measures which he deems useful for establishing the truth.
...
If the investigating judge is unable to take all the investigative measures himself, he may issue warrants to senior police officers (officiers de police judiciaire) in order to have them carry out all the necessary investigative measures on the conditions and subject to the reservations provided for in Articles 151 and 152.
The investigating judge must verify the information thus gathered.
..."
"An investigating judge may issue a warrant requiring any judge of his court, any district-court judge within the territorial jurisdiction of that court, any senior police officer (officier de police judiciaire) with authority in that jurisdiction or any investigating judge to undertake any investigative measures he considers necessary in places coming under their respective jurisdictions.
The warrant shall indicate the nature of the offence to which the proceedings relate. It shall be dated and signed by the issuing judge and shall bear his seal.
It may only order investigative measures directly connected with the prosecution of the offence to which the proceedings relate.
..."
"The judges or senior police officers instructed to act shall exercise, within the limits of the warrant, all the powers of the investigating judge.
..."
16. An Act of 17 July 1970 added to the Civil Code an Article 9 guaranteeing to everyone "the right to respect for his private life". It also added to the Criminal Code an Article 368, whereby:
"Anyone who wilfully intrudes on the privacy of others:
1. By listening to, recording or transmitting by means of any device, words spoken by a person in a private place, without that person’s consent;
2. ...
shall be liable to imprisonment for not less than two months and not more than one year and a fine ... or to only one of these two penalties."
During the preparatory work, one of the vice-chairmen of the National Assembly’s Statutes Committee, Mr Zimmermann, sought "certain assurances" that this enactment "[would] not prevent the investigating judge from issuing strictly within the limits of the law warrants to have telephones tapped, obviously without making use of any form of inducement and in compliance with all the legal procedures" (Journal officiel, National Assembly, 1970 proceedings, p. 2074). The Minister of Justice, Mr René Pleven, replied: "... there is no question of interfering with the powers of investigating judges, who are indeed empowered, in the circumstances laid down by law, to order tapping"; he added a little later: "when an official taps a telephone, he can only do so lawfully if he has a warrant from a judicial authority or is acting on the instructions of a minister" (ibid., p. 2075). Both Houses of Parliament thereupon passed the Bill without amending it on this point.
17. Article 41 of the Post and Telecommunications Code provides that any public servant or anyone authorised to assist with the performance of relevant official duties who breaches the secrecy of correspondence entrusted to the telecommunications service shall be liable to the penalties provided for in Article 187 of the Criminal Code - a fine, imprisonment and temporary disqualification from any public office or employment. Article 42 provides that anyone who, without permission from the sender or the addressee, divulges, publishes or uses the content of correspondence transmitted over the air or by telephone shall be liable to the penalties provided for in Article 378 of the Criminal Code (on professional confidentiality) - a fine or imprisonment.
General Instruction no. 500-78 on the telephone service - intended for Post and Telecommunications Authority officials - contains the following provisions, however, given here in the amended version of 1964 (Article 24 of Part III):
"Postmasters and sub-postmasters are required to comply with any requests that ... calls to or from a specified telephone should be monitored by the relevant authority, made by:
1. An investigating judge (Arts. 81, 92 and 94 of the Code of Criminal Procedure) or any judge or senior police officer (officier de police judiciaire) to whom a judicial warrant has been issued (Art. 152);
..."
The General Instruction was published in the official bulletin of the Ministry of Post and Telecommunications and was described by the Government as an "implementing regulation".
18. The striking development of various forms of serious crime - large-scale thefts and robberies, terrorism, drug-trafficking - appears in France to have led to a marked increase in the frequency with which investigating judges resort to telephone tapping. The courts have as a result given many more decisions on the subject than formerly; telephone tapping has not been held to be unlawful in itself, although the courts have occasionally shown some distaste for it (Paris Court of Appeal, Ninth Criminal Division, 28 March 1960, Cany et Rozenbaum, GP 1960, jurisprudence, pp. 253-254).
The vast majority of the decisions cited to the Court by the Government and the Commission, or of which the Court has had cognisance by its own means, are of later date than the facts of the instant case (April 1974) and have gradually provided a number of clarifications. These do not all stem from judgments of the Court of Cassation, and do not for the time being constitute a uniform body of case-law, because the decisions or reasons given in some of the cases have remained unique. They may be summarised as follows.
(a) Articles 81 and 151 of the Code of Criminal Procedure (see paragraph 15 above) empower investigating judges - and them alone, as far as judicial investigations are concerned - to carry out telephone tapping or, much more commonly in practice, to issue a warrant to that effect to a senior police officer (officier de police judiciaire) within the meaning of Article 16 (see, in particular, Court of Cassation, Criminal Division, 9 October 1980, Tournet, Bull. no. 255, pp. 662-664; 24 April 1984 - see paragraph 12 above; 23 July 1985, Kruslin, Bull. no. 275, pp. 713-715; 4 November 1987, Croce, Antoine et Kruslin, DS 1988, sommaires, p. 195; 15 February 1988, Schroeder, and 15 March 1988, Arfi, Bull. no. 128, pp. 327-335). Telephone tapping is an "investigative measure" which may sometimes be "useful for establishing the truth". It is comparable to the seizure of letters or telegrams (see, among other authorities, Poitiers Court of Appeal, Criminal Division, 7 January 1960, Manchet, Juris-Classeur périodique (JCP) 1960, jurisprudence, no. 11599, and Paris Court of Indictment Division, 27 June 1984, F. et autre, DS 1985, jurisprudence, pp. 93-96) and it similarly does not offend the provisions of Article 368 of the Criminal Code, having regard to the legislative history and to the principle that any kind of evidence is admissible (see paragraphs 13 and 16 above and Strasbourg tribunal de grande instance, 15 February 1983, S. et autres, unreported; Colmar Court of Appeal, 9 March 1984, Chalvignac et autre, unreported; Paris Court of Appeal, Indictment Division, judgment of 27 June 1984 previously cited and judgment of 31 October 1984, Li Siu Lung et autres, GP 1985, sommaires, pp. 94-95).
(b) The investigating judge can only issue such a warrant "where there is a presumption that a specific offence has been committed which has given rise to the investigation" which he is responsible for conducting and not in respect of a whole category of offences "on the off chance"; this is clear not only from Articles 81 and 151 (second and third paragraphs) of the Code of Criminal Procedure but also "from the general principles of criminal procedure" (see, among other authorities, Court of Cassation, Criminal Division, judgments of 23 July 1985, 4 November 1987 and 15 March 1988 previously cited).
The French courts do not seem ever to have held that telephone tapping is lawful only where the offences being investigated are of some seriousness or if the investigating judge has specified a maximum duration for it.
(c) "Within the limits of the warrant" that has been issued to him - if need be by fax (Limoges Court of Appeal, Criminal Division, 18 November 1988, Lecesne et autres, DS 1989, sommaires, p. 394) - the senior police officer exercises "all the powers of the investigating judge" (Article 152 of the Code of Criminal Procedure). He exercises these under the supervision of the investigating judge, who by the fifth paragraph of Article 81 is bound to "verify the information ... gathered" (see, among other authorities, Court of Cassation, Criminal Division, judgments of 9 October 1980, 24 April 1984, 23 July 1985, 4 November 1987 and 15 March 1988 previously cited).
The warrant apparently sometimes takes the form of a general delegation of powers, including - without its being expressly mentioned - the power to tap telephones (Court of Cassation, Civil Division, second section, judgment of 18 March previously cited, and Paris Court of Appeal, judgment of 28 March 1960 previously cited).
(d) In no case may a police officer tap telephones on his own initiative without a warrant, for example during the preliminary investigation preceding the opening of the judicial investigation (see, among other authorities, Court of Cassation, Criminal Division, 13 June 1989, Derrien, and 19 June 1989, Grayo, Bull. no. 254, pp. 635-637, and no. 261, pp. 648-651; full court, 24 November 1989, Derrien, DS 1990, p. 34, and JCP 1990, jurisprudence, no. 21418, with the submissions of Mr Advocate-General Emile Robert).
(e) Telephone tapping must not be accompanied by "any subterfuge or ruse" (see, among other authorities, Court of Cassation, Criminal Division, judgment of 9 October 1980, 24 April 1984, 23 July 1985, 4 November 1987, 15 February 1988 and 15 March 1988 previously cited) failing which the information gathered by means of it must be either deleted or removed from the case file (Court of Cassation, Criminal Division, judgments of 13 and 19 June 1989 previously cited).
(f) The telephone tapping must also be carried out "in such a way that the exercise of the rights of the defence cannot be jeopardised" (see, among other authorities, Court of Cassation, Criminal Division, judgments of 9 October 1980, 24 April 1984, 23 July 1985, 4 November 1987, 15 February 1988, 15 March 1988 and 19 June 1989 previously cited). In particular, the confidentiality of the relations between suspect or person accused and lawyer must be respected, as must, more generally, a lawyer’s duty of professional confidentiality, at least when he is not acting in any other capacity (Aix-en-Provence Court of Appeal, Indictment Division, 16 June 1982 and 2 February 1983, Sadji Hamou et autres, GP 1982, jurisprudence, pp. 645-649, and GP 1983, jurisprudence, pp. 313-315; Paris Court of Appeal, Indictment Division, judgment of 27 June 1984 previously cited).
(g) With this reservation, it is permissible to tap telephone calls to or from a charged person (Court of Cassation, Criminal Division, judgments of 9 October 1980 and 24 April 1984 previously cited) or a mere suspect (judgments of the Strasbourg tribunal de grande instance, 15 February 1983, the Colmar Court of Appeal, 9 March 1984, and the Indictment Division of the Paris Court of Appeal, 27 June 1984, previously cited) or even a third party, such as a witness, whom there is reason to believe to be in possession of information about the perpetrators or circumstances of the offence (see, among other authorities, Aix-en-Provence Court of Appeal, judgment of 16 June 1982 previously cited).
(h) A public telephone-box may be tapped (Seine Criminal Court, Tenth Division, 30 October 1964, Trésor public et Société de courses c. L. et autres, DS 1965, jurisprudence, pp. 423-424) just like a private line, irrespective of whether current is diverted to a listening station (Court of Cassation, Criminal Division, 13 June 1989, and full court, 24 November 1989, previously cited).
(i) The senior police officer supervises the tape or cassette recording of the conversations and their transcription, where he does not carry out these operations himself; when it comes to choosing extracts to submit "for examination by the court", it is for him to determine "what words may render the speaker liable to criminal proceedings". He performs these duties "on his own responsibility and under the supervision of the investigating judge" (Strasbourg tribunal de grande instance, judgment of 15 February 1983 previously cited, upheld by the Colmar Court of Appeal on 9 March 1984; Paris Court of Appeal, judgment of 27 June 1984 previously cited).
(j) The original tapes are "exhibits", not "investigation documents", but have only the weight of circumstantial evidence; their contents are transcribed in reports in order to give them a physical form so that they can be inspected (Court of Cassation, Criminal Division, 28 April 1987, Allieis, Bull. no. 173, pp. 462-467).
(k) If transcription raises a problem of translation into French, Articles 156 et seq. of the Code of Criminal Procedure, which deal with expert opinions, do not apply to the appointment and work of the translator (Court of Cassation, Criminal Division, 6 September 1988, Fekari, Bull. no. 317, pp. 861-862 (extracts), and 18 December 1989, M. et autres, not yet reported).
(l) There is no statutory provision prohibiting the inclusion in the file on a criminal case of evidence from other proceedings, such as tapes and reports containing transcriptions, if they may "assist the judges and help to establish the truth", provided that such evidence is added under an adversarial procedure (Court of Cassation, Criminal Division, judgments of 23 July 1985 and 6 September 1988 previously cited).
(m) The defence must be able to inspect the reports containing transcriptions, to hear the original tape recordings, to challenge their authenticity during the judicial investigation and subsequent trial and to apply for any necessary investigative measures - such as an expert opinion - relating to their contents and the circumstances in which they were made (see, among other authorities, Court of Cassation, Criminal Division, 23 July 1985, previously cited; 16 July 1986, Illouz, unreported; and 28 April 1987, Allieis, previously cited).
(n) Just as the investigating judge supervises the senior police officer, he is himself supervised by the Indictment Division, to which he - exactly like the public prosecutor - may apply under Article 171 of the Code of Criminal Procedure.
Trial courts, courts of appeal and the Court of Cassation may have to deal with objections or grounds of appeal as the case may be - particularly by defendants but also, on occasion, by the prosecution (Court of Cassation, judgments of 19 June and 24 November 1989 previously cited) - based on a failure to comply with the requirements summarised above or with other rules which the parties concerned claim are applicable. A failure of this kind, however, would not automatically nullify the proceedings such that a court of appeal could be held to have erred if it had not dealt with them of its own motion; they affect only defence rights (Court of Cassation, Criminal Division, 11 December 1989, Takrouni, not yet reported).
19. Since at least 1981, parties have increasingly often relied on Article 8 (art. 8) of the Convention - and, much less frequently, on Article 6 (art. 6) (Court of Cassation, Criminal Division, 23 April 1981, Pellegrin et autres, Bull. no. 117, pp. 328-335, and 21 November 1988, S. et autres) - in support of their complaints about telephone tapping; they have sometimes as in the instant case (see paragraph 12 above) - cited the case-law of the European Court of Human Rights.
Hitherto only telephone tapping carried out without a warrant, during the police investigation (see, among other authorities, Court of Cassation, judgments of 13 June and 24 November 1989 previously cited), or in unexplained circumstances (see, among other authorities, Court of Cassation, judgment of 19 June 1989 previously cited) or in violation of defence rights (Paris Court of Appeal, Indictment Division, judgment of 31 October 1984 previously cited) has been held by the French courts to be contrary to Article 8 § 2 (art. 8-2) ("in accordance with the law") or to domestic law in the strict sense. In all other cases the courts have either found no violation (Court of Cassation, Criminal Division, judgments of 24 April 1984, 23 July 1985, 16 July 1986, 28 April 1987, 4 November 1987, 15 February 1988, 15 March 1988, 6 September 1988 and 18 December 1989 previously cited, and 16 November 1988, S. et autre, unreported, and the judgments of 15 February 1983 (Strasbourg), 9 March 1984 (Colmar) and 27 June 1984 (Paris) previously cited) or else ruled the plea inadmissible for various reasons (Court of Cassation, Criminal Division, judgments of 23 April 1981, 21 November 1988 and 11 December 1989 previously cited and the unreported judgments of 24 May 1983, S. et autres; 23 May 1985, Y. H. W.; 17 February 1986, H.; 4 November 1986, J.; and 5 February 1990, B. et autres).
20. While academic opinion is divided as to the compatibility of telephone tapping as carried out in France - on the orders of investigating judges or others - with the national and international legal rules in force in the country, there seems to be unanimous agreement that it is desirable and even necessary for Parliament to try to solve the problem by following the example set by many foreign States (see in particular Gaëtan di Marino, comments on the Tournet judgment of 9 October 1980 (Court of Cassation), JCP 1981, jurisprudence, no. 19578; Albert Chavanne, ‘Les résultats de l’audio-surveillance comme preuve pénale’, Revue internationale de droit comparé, 1986, pp. 752-753 and 755; Gérard Cohen-Jonathan, ‘Les écoutes téléphoniques’, Studies in honour of Gérard J. Wiarda, 1988, p. 104; Jean Pradel, ‘Écoutes téléphoniques et Convention européenne des Droits de l’Homme’, DS 1990, chronique, pp. 17-20). In July 1981 the Government set up a study group chaired by Mr Robert Schmelck, who was then President of the Court of Cassation, and consisting of senators and MPs of various political persuasions, judges, university professors, senior civil servants, judges and a barrister. The group submitted a report on 25 June 1982, but this has remained confidential and has not yet led to a bill being tabled.
VIOLATED_ARTICLES: 8


ITEMID: 001-4878
LANGUAGEISOCODE: ENG
RESPONDENT: HUN
BRANCH: ADMISSIBILITY
DATE: 1999
DOCNAME: KOKAVECZ v. HUNGARY
IMPORTANCE: 3
CONCLUSION: Inadmissible
JUDGES: Christos Rozakis
TEXT: The applicant is a Hungarian citizen born in 1959 and residing in Békéscsaba, Hungary. He is a businessman. He is represented by Mrs. G. Futaki, a lawyer practising in Békéscsaba, who was his defence counsel throughout the criminal proceedings outlined below.
The facts of the case, as submitted by the parties, may be summarised as follows.
A.
On 31 March 1994 the applicant was arrested by the Békés County Police Department. Upon his arrest, the Police Department's decision was communicated to him, which he acknowledged by signing the document. According to the decision, there was a strong suspicion that the applicant had participated in the murder of Z. D., an offence under S. 166 § 1 of the Hungarian Criminal Code. The applicant was committed to the prison of the Békéscsaba Police Department.
On the same day, the Békés County Police Department searched the applicant's home and business premises and seized cash belonging to him, in the amount of 3,946,950 Hungarian forints (HUF), in pursuance of S. 101 § 1 of the Code of Criminal Procedure. His complaint was to no avail.
On 1 April 1994 the Police Department heard the applicant. On this occasion he was again informed that there was a strong suspicion that he had participated in the murder of Z. D., a businessman.
On 3 April 1994 the Békéscsaba District Court heard the applicant who denied the charge. The District Court ordered his detention on remand, holding that there was a strong suspicion that on 18 March 1994 the applicant and two further suspects had murdered Z. D. by means of multiple battery and shooting. This suspicion relied on, inter alia, witness evidence and preliminary forensic pathology expertise. The District Court found that, in the light of the serious charge against him and in accordance with S. 92 § 1 (a)-(b) of the Code of Criminal Procedure, there was a risk of the applicant's absconding or of collusion, if he had been left at large.
On 18 April 1994 the Békés County Regional Court dismissed the applicant's appeal against the detention order of 3 April 1994. The Regional Court found that the District Court had ordered the applicant's detention on remand on proper grounds.
On 25 April 1994 the Békéscsaba District Court prolonged the detention on remand until 3 July 1994, at the latest. The District Court observed that the applicant was suspected of murder. The Court considered that, had the applicant been left at large, there was a serious risk that he would hide from the authorities, abscond or obstruct the proceedings by co-operating with his accomplices. The prolongation was ordered in accordance with S. 95 § 1 and S. 379/A § 4 of the Code of Criminal Procedure. On 9 May 1994 the Regional Court dismissed the applicant's appeal.
On 13 May 1994 the Békés County Public Prosecutor's Office heard the applicant. On this occasion he said that he was satisfied with the conditions of his detention. Still on the same day he was transferred to the prison of the Szentes Police Department. On 31 May 1994 the competent Csongrád County Public Prosecutor's Office carried out a control of the prison premises, on which occasion the applicant brought no complaint about the conditions of his detention.
On 2 and 27 June 1994 the Békés County Public Prosecutor's Office repeatedly ordered the applicant to be barred from having any contact with his concubine, so as to secure the proper conduct of the investigations.
On 24 June 1994 a single judge of the Békés County Regional Court prolonged the detention on remand until 3 November 1994, at the latest. The Regional Court, referring to the state of the investigations, held that further acts of investigation of crucial importance should take place in the case and that, although the applicant denied the charge against him, a strong suspicion of his guilt prevailed. In its decision, the Regional Court referred to S. 92 § 1 (a)-(b), S. 95 § 1 and S. 379/A. § 4 of the Code of Criminal Procedure. On 19 July 1994 a panel of the Regional Court dismissed the applicant's appeal as well as his complaint about the lack of reasonable suspicion against him and about the alleged failure to inform him of the charges brought against him.
On 16 August 1994 the Békés County Police Department impounded, invoking S. 106 § 1 of the Code of Criminal Procedure, the applicant's seized money. His complaint in this respect was to no avail.
On 6 September 1994 two officers of the Szentes Police Department carried out a control of the local prison premises, on which occasion the applicant requested that the time allowed for taking baths be extended. His request was admitted.
On 14 October 1994 the Criminal Expertise and Research Institute of the National Police Department presented the opinion of an expert serologist.
On 17 October 1994 the Békés County Public Prosecutor's Office informed the applicant's lawyer that the forensic experts' opinions which had been completed by then were accessible for her to consult. Furthermore, the Public Prosecutor's Office, in reply to the lawyer's complaint of 7 July 1994 about the prohibition of contacts between the applicant and his concubine, permitted that these contacts be resumed.
On 2 November 1994 a single judge of the Békés County Regional Court prolonged the detention on remand until 3 April 1995, at the latest, finding that the results of the investigation - including witness testimonies, expertise from a mobile phone company and fire-arm tests carried out by the Criminal Expertise and Research Institute - had confirmed the strong suspicion against the applicant. The judge, referring to the relevant provisions of the Code of Criminal Procedure, considered that the reasons, which had initially necessitated the applicant's detention on remand, persisted. On 17 November 1994 a panel of the Regional Court dismissed the applicant's appeal, finding that the single judge's reasoning was correct. In particular, the Regional Court held that the risk of the applicant's collusion was considerable in the light of an incident in June 1994, when it had been established by the police that he had attempted to persuade one of the co-accused to revoke a testimony.
On 14 November 1994 the applicant was again committed to the prison of the Békéscsaba Police Department. In mid-December 1994, the applicant unsuccessfully complained to the Head of Investigations about the fact that he had to share his cell with a “gipsy” person.
On 25 January 1995 the Supreme Court rejected the complaints of the applicant's lawyer about the lawfulness of the investigation. Also on 25 January 1995 the Szeged Public Prosecutor's Investigation Office forwarded the submissions of the applicant's lawyer, questioning the lawfulness of the investigation, to the Békés County Public Prosecutor's Office.
On 20 March 1995 the Attorney General's Office informed the applicant's lawyer that her complaint of 4 August 1994 - in which she had alleged that there had been no reasonable suspicion of the applicant's guilt, that the authorities had failed to properly inform the applicant of the charges and that his detention on remand had lasted unreasonably long - had been forwarded to the Békés County Public Prosecutor's Office for further action and that a hearing of the applicant in that respect had not been considered necessary.
On 23 March 1995 the Supreme Court prolonged the detention on remand until 3 October 1995, at the latest. The Supreme Court, referring to the relevant legal provisions, stated that the reasons for detaining the applicant on remand persisted.
On 22 May 1995 the Békéscsaba District Court dismissed the applicant's request for release. On 30 May 1995 the Békés County Regional Court dismissed the applicant's appeal.
On 11 July 1995 the Békés County Public Prosecutor's Office heard the applicant. On this occasion he said that he was satisfied with the conditions of his detention.
On 12 July 1995 the applicant was transferred to the Bács-Kiskun County Prison, Kecskemét.
On 31 July 1995 the applicant's lawyer wrote a letter to the Department of Penitentiary Supervision at the Ministry of Justice. Whilst admitting that the general conditions of the applicant's detention in the Bács-Kiskun County Prison were good, the lawyer requested that the applicant be granted access to the shower facilities more often than once a week. In its answer dated 8 September 1995 the Head of the Department explained that the relevant rules in force provided that inmates should have access to shower or bathing facilities at least once a week and no exceptional treatment could be granted to the applicant in this respect.
On 15 August 1995 the Békés County Public Prosecutor's Office preferred a bill of indictment against the applicant, charging him with instigation to premeditated murder and, moreover, with abuse of fire-arms and of ammunition, an offence under S. 263/A of the Criminal Code. The indictment involved three further defendants. The Public Prosecutor's Office was relying on the results of the investigation, which involved, inter alia, the following items: findings of the inspection of the murder premises; evidence given by some sixty witnesses; forensic pathology, chemistry, toxicology, psychiatry, serology and dactylography expertise; consultants' opinions concerning physical evidence, documents, fire-arms and other weapons; and minutes of confrontation.
On 8 September 1995 the applicant's lawyer requested the Békés County Regional Court to order the applicant's release. On 15 September 1995 the Regional Court decided that the applicant's detention on remand be prolonged until the first instance court decision would be taken. On 20 October 1995 the Supreme Court dismissed the applicant's appeal.
On 12 December 1995 the applicant again requested the Békés County Regional Court to order his release.
On 8 January 1996 the applicant was transferred to the Gyula Prison.
On 11 January 1996 the Békés County Regional Court ordered the applicant's release.
On 31 January 1996, upon appeal by the Attorney General's Office, the Supreme Court quashed this decision and ordered the applicant's detention on remand from 5 February 1996.
On 21 February 1996 the applicant was finally released.
After having held eighteen court sessions between 1 November 1995 and 22 February 1996, on 29 February 1996 the Békés County Regional Court acquitted the applicant of the charge of instigation to murder and convicted the three further defendants of premeditated murder. The Regional Court established the facts relying upon, inter alia, statements made by the four co-accused as well as upon testimonies made by more than seventy witnesses and some twenty experts. Having examined the entirety of the evidence at its disposal, the Regional Court held that the applicant had not been involved in the murder. At the same time, the Regional Court convicted him of abuse of fire-arms and of ammunition and sentenced him to a fine of HUF 200,000. The Regional Court declared that the fine in question was to be regarded settled, having regard to the applicant's detention on remand between 31 March and 17 October 1994. The Regional Court also ordered that the money, which had been seized from the applicant and had subsequently been impounded, be returned to him.
On 29 January 1997 the Supreme Court, upon the applicant's appeal, re-qualified his offence as abuse of ammunition only and reduced his sentence to a fine of HUF 100,000. As to the grounds of his acquittal of the charge of instigation to murder, the Supreme Court amended the Regional Court's ruling, holding that the applicant's guilt had not been proven beyond doubt.
On 27 July 1997 the applicant brought, under Ss. 383-385/A. of the Code of Criminal Procedure, a claim for indemnification for his detention on remand. The claim is pending before the Békés County Regional Court.
B. Relevant domestic law
1. Arrest and detention on remand
According to S. 91 § 1 (b) of the Code of Criminal Procedure, a defendant may be arrested if his or her detention on remand is warranted.
Detention on remand is governed by Ss. 92 to 97 and Ss. 379/A to 380 of the Code of Criminal Procedure.
S. 92 § 1 provides as follows:
"Detention on remand of a person charged with a criminal offence can take place for crimes punishable with imprisonment, if
a. the person absconded, hid from the authorities, or, because of the severity of the crime or for other reasons there is a risk of his or her absconding;
b. there is a serious risk that the person would obstruct or render more difficult or endanger the proceedings if released;
c. the person committed a further crime, also punishable with imprisonment, during the proceedings, or there is a serious risk that he or she might complete the crime which he or she prepared or attempted to commit or that the person would commit another crime."
According to S. 93 § 1, detention on remand shall be ordered by a court. As regards the competence of the different levels of courts to decide on the prolongation of detention on remand, S. 95 provides that detention on remand, when ordered prior to the indictment, may last until the decision of the court in the preliminary proceedings before trial, up to a maximum of one month. Detention on remand can be prolonged once by the District Court for two months at the most. After three months, detention on remand can be prolonged twice by a single judge of the Regional Court, but it may not continue beyond one year after the remand order. Thereafter, detention on remand can only be extended by the Supreme Court.
S. 96 § 1 provides that the authorities must aim at keeping the length of detention on remand as short as possible. If the person charged with a criminal offence is detained on remand, the proceedings have priority. According to S. 96 § 2, detention on remand must immediately be terminated, if its reasons are no longer valid or its period expires without an extension.
S. 379/A provides that the court orders detention on remand upon the request of the public prosecutor. The latter brings the suspect before the court and notifies the defence counsel. The court then holds a hearing, where the public prosecutor presents the relevant evidence. The suspect and the defence counsel may make oral statements. The hearing can take place in the absence of the defence counsel. The public prosecutor may make a motion to the court for the extension of the detention on remand five days before the expiry of the deadline of a pending detention order. A suspect's motion for release is sent to the court via the prosecutor. The court holds a hearing when there are new circumstances necessitating it; otherwise it decides without a hearing.
S. 379/B § 1 states that the general rules on appeals against court decisions apply to appeals against court decisions ordering coercive measures unless provided otherwise in paragraphs 2 to 6. According to paragraph 2, the public prosecutor, the suspect and the defence counsel may appeal against the decision of the court. If the defence counsel was not present at the hearing, he may appeal within three days from the hearing. If the decision was taken in camera, there is a time-limit of three days from the service of the decision concerned. Furthermore, S. 379/B § 6 provides that the decision upon the appeal shall be taken, within a period of five days, by a single judge at the Regional Court, if a District Court decision is concerned, and by a chamber of the Regional Court, if a decision taken by a single judge of the Regional Court is at issue.
According to S. 380 § 2, if the Supreme Court has jurisdiction pursuant to S. 95 § 1 to decide on the prolongation of the detention on remand ordered prior to the indictment, the Prosecutor General applies for the prolongation. Paragraph 2 provides that if the period of detention on remand, as fixed by the Supreme Court, has expired without an indictment having been filed, the Prosecutor General lodges a further application for the prolongation of the detention on remand.
At all stages of the proceedings, the accused is entitled to lodge any requests and comments, moreover, to request information from the authorities about his rights and obligations under criminal procedural law, and to ask questions from any person heard at a court session, in accordance with S. 44 § 5.
2. Information of the reasons for arrest and of the charges
According to S. 132 of the Code of Criminal Procedure, if strong suspicion occurs that a person has committed an offence, the authority shall inform him or her of the substance thereof, referring to the relevant legal provisions. Minutes shall be taken of the communication of the strong suspicion to the defendant, subsequent to which he or she shall be heard (within twenty-four hours if detained).
3. Seizure and impounding of property
According to S. 101 § 1 of the Code of Criminal Procedure, the authority can seize any item, which constitutes material evidence, which can be confiscated under the law, or the possession of which is unlawful. S. 102 § 1 provides that the seizure must be terminated immediately if it is no longer necessary in the interest of the proceedings. Paragraph 5 provides that the object which should otherwise be returned to the person charged with a criminal offence can be retained as security.
S. 106 § 1 provides that, in criminal proceedings occasioned by an offence in the context of which a defendant's property may eventually be confiscated, the authority shall have the right to decide to impound the defendant's property or part of it.
4. Law-Decree no. 11 of 1979
S. 118 § 1 (d) of Law-Decree no. 11 of 1979 on the Enforcement of Punishments and Measures, as in force at the material time, provides that a person in detention on remand is entitled to correspond with his relatives and - upon approval by the public prosecutor or, after the bill of indictment has been preferred, by the trial court - with other persons and, moreover, to receive a visitor and to receive a parcel at least once a month.
According to paragraph 2, these rights - save the detainee's right to maintain contacts with his defence counsel - may be restricted [by the public prosecutor or by the trial court, whichever appropriate] in order to secure the proper conduct of the proceedings.
5. Indemnification for detention on remand
According to Ss. 383-385/A. of the Code of Criminal Procedure, a defendant who has been acquitted by the court shall be entitled to indemnification for his or her detention on remand. Such indemnification is payable by the State. The means and amount of such indemnification shall be determined according to the Civil Code rules on extra-contractual damages.
6. Official liability action
According to S. 349 §§ 1 and 3 of the Civil Code, official liability [of the State administration] may be established only if the relevant ordinary remedies have been exhausted or have not been fit to prevent damages. Unless otherwise regulated, this applies, as appropriate, to the liability for damages caused by courts or prosecution authorities.


ITEMID: 001-85152
LANGUAGEISOCODE: ENG
RESPONDENT: LTU
BRANCH: CHAMBER
DATE: 2008
DOCNAME: CASE OF KUOLELIS,  BARTOSEVICIUS AND BUROKEVICIUS v. LITHUANIA
IMPORTANCE: 4
CONCLUSION: No violation of Article 6 - Right to a fair trial;No violation of Article 7 - No punishment without law;No violation of Article 9 - Freedom of thought conscience and religion;No violation of Article 10 - Freedom of expression -{General};No violation of Article 11 - Freedom of assembly and association;No violation of Article 14 - Prohibition of discrimination
JUDGES: András Baka;Françoise Tulkens;Ireneu Cabral Barreto;Jean-Paul Costa;Mindia Ugrekhelidze
TEXT: 6. The applicants are Lithuanian nationals born in 1930, 1928 and 1927, respectively. At the time of lodging their applications, the first and third applicants were detained at the Rasų prison in Vilnius and the second applicant was living in that city.
7. The historical and political background to the present case was set out in the judgments of the domestic courts referred to below and may be summarised as follows.
8. On 23 August 1939 Stalin’s Soviet Union (hereafter sometimes also referred to as the “USSR”) signed a non-aggression treaty with Hitler’s Germany (the “Molotov-Ribbentrop Pact”). According to a secret additional protocol approved by the parties on 23 August and amended on 28 September 1939, the Baltic States had been attributed to the sphere of interest of the USSR in the event of a future territorial and political rearrangement of the territories of these then independent countries. Following an ultimatum to allow an unlimited number of Soviet troops to be stationed in the Baltic countries, on 15 June 1940 the Soviet army invaded Lithuania. The Government of Lithuania was removed from office, and a new government was formed under the direction of the Communist Party of the Soviet Union (hereafter “the CPSU”), the USSR’s only party. On 3 August 1940 the Soviet Union completed the annexation of Lithuania by adopting an act incorporating the country into the USSR, with Lithuania being called the “Soviet Socialist Republic of Lithuania” (the “LSSR”). The Government of the LSSR was appointed and controlled by the Communist Party of Lithuania (“the CPL”), a regional branch of the CPSU.
9. In the late 1980s there was considerable social pressure in Lithuania, as in other east European countries, for the democratisation of political life. As a result of the newly introduced freedom of expression in the Soviet Union, massive political movements were formed in Lithuania, condemning the annexation of the country, asserting the need to construct a new society based inter alia on Lithuanian identity and values, and emphasising the need to restore the State’s independence.
10. On 24 December 1989 the Congress of People’s Deputies of the USSR passed a Resolution on the Political and Juridical Appraisal of the Soviet-German Non-aggression Treaty of 1939. It denounced that treaty as illegal and invalid ever since its signature. It noted that the territorial divisions into Soviet and German spheres of influence had been contrary to the sovereignty and independence of several other countries, such as the Baltic States. This was followed by a Decision of the Supreme Council of the LSSR on 7 February 1990 denouncing the unlawful incorporation of Lithuania into the USSR in 1940.
11. By the end of 1989, the CPL had decided to split from the CPSU. The new CPL immediately declared its support for Lithuanian independence and a multi-party political system. In the meantime, a minority of former CPL members created a new party, the CPL/CPSU (LKP/TSKP). According to its political programme, one of its goals was to maintain Lithuania as part of the USSR.
12. The first independent parliamentary elections under Soviet rule took place in Lithuania on 24 February 1990. No member of the CPL/CPSU was elected to the Supreme Council (Parliament).
13. On 11 March 1990 the newly elected Supreme Council adopted the Act on the Re-establishment of the State of Lithuania, which declared the Republic of Lithuania to be an independent, sovereign State again and asserted that Lithuania’s incorporation into the USSR had been null and void. The Supreme Council also reinstated certain provisions of the Lithuanian Constitution of 1938, and adopted the Provisional Basic Law, setting out the constitutional principles of the Lithuanian State (paragraphs 63-71 below). On the same date, the Supreme Council approved the Government of the Republic of Lithuania and proclaimed the validity of all previous legislation and legal acts which were compatible with the Provisional Basic Law.
14. The Soviet Union repeatedly pressured Lithuania to renounce its independence and, on 14 April 1990, demanded the cancellation of the March laws and then immediately imposed an economic blockade for the failure to comply. As a compromise, on 18 April 1990 the Supreme Council adopted the Resolution on the Expansion of Relations between the Republic of Lithuania and the Union of Soviet Socialist Republics, announcing that, until 1 May 1990, it would not adopt new political legislative acts during preliminary parliamentary consultations between the two countries, once they began. The USSR did not respond; so, according to the respondent Government, the Resolution did not come into effect.
15. On 23 May 1990 the Supreme Council of the Republic of Lithuania announced the temporary suspension of the actions and decisions flowing from the legislation of 11 March 1990, subject to the start of negotiations with the Soviet Union. It thereby sought to resolve the issues arising out of the re-establishment of the independent State of Lithuania (see paragraph 67 below). However, again, according to the Government, the suspension never took effect as the Soviet Union did not formally respond to the Lithuanian authorities.
16. On 27 June 1990 a meeting with the leaders of the two States was held at the Kremlin in Moscow. The then President of the Soviet Union, Mr Mikhaïl Gorbachev, refused to lift the economic blockade because he did not accept that a “moratorium” was possible in respect of the Act on the Re-establishment of the State of Lithuania. On 12 July 1990 the Lithuanian Supreme Council appealed to the Supreme Soviet of the USSR, requesting that the illegal annexation of 3 August 1940 be denounced, and that Lithuania’s name be deleted from the Soviet Constitution.
17. On 29 June 1990 the Supreme Council adopted a statement suspending the legal actions stemming from the Act on the Re-establishment of the State of Lithuania, subject to formal negotiations with the Soviet Union (paragraph 68 below). However, such negotiations never materialised and the conditional moratorium was denounced by the Supreme Council on 28 December 1990 (paragraph 70 below). The moratorium, which any way, according to the Government, had been inoperative, did not affect the lawfulness of the Act itself.
18. On 10 November 1990 Article 70 of the Criminal Code was amended to prohibit activities, inter alia, undermining the constitutional order of the Republic of Lithuania, as distinguished from the previous prohibition on anti-Soviet activities (paragraph 78 below).
19. On 10 January 1991 President Gorbachev publicly required the Supreme Council of the Republic of Lithuania to “reinstate immediately the legal force of the USSR and LSSR Constitutions in Lithuania.”
20. On 11 January 1991 the CPL/CPSU sent an ultimatum to the Government of Lithuania, ordering it to comply with the declaration of the USSR President. Failing that, the CPL/CPSU announced that it would create the “Lithuanian National Rescue Committee” (Lietuvos nacionalinio gelbėjimo komitetas), “which would take care of matters concerning the future of the LSSR.” On 14 January 1991 the Supreme Council denounced the activities of this Committee as illegal, anti-constitutional, anti-state and criminal. It warned those involved that they would be held responsible in accordance with the laws of the Republic of Lithuania.
21. Between 11 and 13 January 1991, the Soviet army conducted military operations against the Government of Lithuania. Soviet troops forcibly occupied the buildings of the Ministry of Defence, the Vilnius television tower, the Lithuanian public television and media headquarters and the Vilnius train station. Soviet troops also tried to take the seat of the Lithuanian Parliament and other authorities. Massive crowds from the local population came to the defence of the institutions of the Republic of Lithuania. Thirteen Lithuanian civilians were killed and over a thousand injured as a result of the conflict with the Soviet army during the night of 12 to 13 January 1991.
22. On 9 February 1991 a nation-wide plebiscite was organised in Lithuania, whereby the public was requested to reply to the question whether they supported the following statement: “The Lithuanian State is an independent and democratic Republic.” More than three quarters of those who participated in the referendum answered in the affirmative. On 11 February 1991 the Supreme Council adopted a law which stated that the notion that “the Lithuanian State is an independent and democratic Republic” was a basic constitutional principle of the country.
23. On 19 August 1991 there was an attempted coup in Moscow. The self-proclaimed “National State of Emergency Committee” declared that President Gorbachev was suspended from his duties, nominated itself as the sole ruling authority and imposed a state of emergency in certain regions of the USSR. This coup ended in failure within two days.
24. In the immediate aftermath of the Moscow coup, in the course of August and September 1991, the new Lithuanian Government gained diplomatic recognition, inter alia from the USSR, the European Communities and the United States of America. The USSR was the 60th State to recognise the Republic of Lithuania as a subject of international law and a sovereign State, as defined in its “fundamental acts of 11 March 1990”. It renounced the 1940 Law which had incorporated Lithuania into the USSR.
25. As regards the activities of the Lithuanian Communist Party, on 2 July 1990 the Ministry of Justice had dismissed an application for the registration of the “LSSR Citizens’ Committee”, as it had been deemed to have aims which were incompatible with the Provisional Basic Law. On 22 August 1991 the Supreme Council issued the Resolution on the activities of the CPL/CPSU in Lithuania. Thereby it confirmed the illegality of the CPL/CPSU and took steps to ensure its dissolution and the restoration of property which had been seized by that organisation and its subsidiaries whilst under the protection of the Soviet military. According to the Government, until the Soviet armed forces started to retreat after the failed putsch in Moscow, it had not been possible to take effective measures against that organisation.
26. In November 1990, the first criminal case was instituted in relation to an intervention by the Soviet military against a protest meeting. Several offences were investigated. In the course of 1991, a total of eight other criminal cases were instituted against various members of or collaborators with the CPL/CPSU concerning their alleged attempts forcibly to overthrow the democratically elected authorities of Lithuania and their breach of the sovereignty of the State. Originally 49 defendants had been envisaged, but several had fled to Byelorussia and Russia, from where extradition was refused despite efforts made by Lithuanian officials during visits to those countries. This lack of interstate cooperation impeded the investigation. Only six people were tried ultimately, including the applicants, who had been executives of the CPL/CPSU and were suspected of subversive activities. The nine cases were subsequently joined in one set of criminal proceedings. These proceedings became known in Lithuania as the “January the 13th case”, a reference to the tragic events during the night of 12-13 January 1991 (paragraph 21 above).
27. The first applicant was questioned several times as a witness in the aftermath of the failed Moscow coup of August 1991. On 28 June 1994 he was arrested and interrogated in a detention centre as a suspect. He was released on bail on 1 July 1994, with a written undertaking not to leave the country. He was imprisoned after his conviction at first instance (paragraph 51 below).
28. On 15 November 1994 it was decided to lay charges against the second applicant under Articles 67 and 70 of the Criminal Code. He was not remanded in custody, but had to provide a written undertaking not to leave the country. He was imprisoned after his conviction at first instance (paragraphs 52-53 below).
29. The third applicant was indicted as a suspect in a criminal case which had been instituted on 22 August 1991. As he had fled, an arrest warrant was issued for him on 27 August 1991. He alleged that, on an unspecified date in 1994, he was kidnapped in Byelorussia by the Lithuanian authorities and unlawfully brought back to Lithuania. On 15 January 1994 he was detained on remand until his subsequent conviction (paragraphs 54-55 below).
30. The pre-trial investigation was concluded on 5 December 1994. From 11 December 1994 until 15 April 1996, the first and second applicants had access to the case file. The third applicant had access to the case file from 10 December 1994 until 31 May 1996.
31. In the course of the preliminary investigation, 3,344 witnesses and 1,349 purported victims were questioned. Moreover, 1,190 expert examinations of various kinds were carried out. 182 searches were conducted and 77 seizures executed. According to the Government, attempts were made to destroy certain relevant materials and parts were found burnt. Time was needed to determine their contents. A significant part of the materials were in the Russian language, which necessitated translations. Furthermore, interpretation was required in the interrogation of several defendants.
32. On 19 June 1996 the bill of indictment was confirmed with regard to six co-defendants, including the applicants. The case consisting of 332 volumes of evidence was sent to the Vilnius Regional Court for trial.
33. The trial started on 12 November 1996. The following day until 21 January 1997 the prosecutors read out the bill of indictment, which alone comprised 15 volumes. There were a few days of interruption due to the applicants’ ill-health.
34. On 10 December 1996, 12 May, 23 June, 22 October and 4 and 18 December 1997, the trial was adjourned due to the state of health of certain other co-accused.
35. From 29 May to 2 June 1997, the trial was adjourned due to the deterioration of the third applicant’s health.
36. On 23 June 1997 the court granted 9 requests from purported victims for forensic medical examinations.
37. From 30 June until 11 August 1997, the court was closed for the judicial holidays.
38. On 22 October, 17-18 November, 5-15 December, 18-23 December 1997 and 23 December 1997 to 6 January 1998, the trial could not proceed due to the illness of one or other of the defendants, or because of the absence of certain witnesses.
39. On 27 January, 2-10 February, 13-18 February, 19 February to 16 March, 26 March to 20 April and 12-15 May 1998, the trial was adjourned in view of the poor health of one or other of the defendants.
40. From 1 to 8 June 1998, the trial was adjourned in view of the failure of one of the defence lawyers to appear.
41. From 9 July until 3 September 1998, the case was adjourned pending the judicial holidays.
42. From 15 September until 19 October 1998, the case was adjourned at the request of the third applicant and his counsel for the preparation of the defence.
43. From 19 to 27 October 1998, the court further adjourned the trial at the request of the third applicant and his lawyers, in order to prepare the defence to a modified charge.
44. From 9 November 1998 to 7 May 1999, the parties were given an opportunity to reply to each other’s questions.
45. On 2 February, 26 March, 3 November and 14 and 29 December 1998, 5 and 25 January, 15 March and 19 to 26 April 1999, the trial was adjourned in view of the illness of one or other of the defendants or their legal representatives.
46. From 7 May to 15 July 1999, the applicants made their final remarks before the trial court.
47. During the trial, 3,093 witnesses and 1,461 purported victims had been questioned.
48. According to information about the case submitted by the respondent Government, the proceedings involving Soviet military personnel, including several accused who had fled and whose extradition was refused by the USSR, were still pending on 1 March 2006. Moreover, some 77 people who had suffered damage as a result of the Soviet military intervention in January 1991 have applied for compensation.
49. On 23 August 1999 the Vilnius Regional Court adopted a judgment in the case, consisting of 246 pages. The applicants and their official defence counsel were present at the hearing.
50. In its judgment the Vilnius Regional Court mentioned the historical and political background to the case (see paragraphs 7-25 above), underlining that the CPSU and CPL/CPSU had been opposed to the democratisation of public life in Lithuania, and had only sought to maintain the status quo of Soviet rule. During the period in question, from the Act on the Re-establishment of the State of Lithuania of 11 March 1990 until the failed Moscow coup of August 1991, the CPSU had been a very powerful organisation in view of its control over Soviet security and the interior, as well as the military forces stationed on the territory of Lithuania and elsewhere. The CPSU had used the CPL/CPSU to support its policing and military capabilities in Lithuania, targeted at stripping the legitimate Government of Lithuania of its powers. The CPSU and CPL/CPSU, being aware that their ideas were supported by only a small minority of the Lithuanian population, had made attempts violently to overthrow the democratic regime. The applicants, the then senior executives of the CPL/CPSU, were found personally to have taken decisions or engaged in acts attesting to their involvement in the attempted coups. In particular, the following acts of the applicants were established by the trial court:
(i) The first applicant had occupied the position of Secretary of the Central Committee of the CPL/CPSU; the second applicant had been a member of the Central Committee of the CPL/CPSU and Director of the radio station “Soviet Lithuania”; the third applicant had been First Secretary of the Central Committee of the CPL/CPSU.
(ii) On 21 April 1990 the CPL/CPSU had founded the “LSSR Citizens’ Committee” (LTSR piliečių komitetas), with the aim of stripping the Lithuanian Government of its powers, disobeying legislation passed by the Supreme Council, and reinstating the force of the USSR Constitution and other Soviet laws. The first and the third applicants had been members of the presidium of this Committee.
(iii) On 12 May 1990, on the initiative of the third applicant, the “LSSR Party’s Interior Committee” (LTSR VRM partinis komitetas) had been founded for the purpose of creating independent police units under the authority of the CPL/CPSU.
(iv) In the summer of 1990, on the initiative of the third applicant and other members of the CPL/CPSU, the so-called “Association of Free Businessmen” (Laisvųjų verslininkų asociacija) had been created with the aim of co-ordinating the activities of the USSR economic structures based in Lithuania, as an alternative to the acting Government of Lithuania.
(v) In June 1990 the applicants had established the radio station “Soviet Lithuania” on the premises of Vilnius University, forcibly occupied by Soviet troops.
(vi) On 7 August 1990 the “LSSR Citizens’ Committee” had established “Workers’ Vigilance Committees” (darbininkų draugovės), their publicly proclaimed goal being “to disobey unlawful forcible acts [aimed at] liquidating the socialist regime and unlawfully separating Lithuania from the USSR”.
(vii) On 16 December 1990 the CPL/CPSU had organised the “Congress of Democratic Forces of Lithuania” (Lietuvos demokratinių jėgų kongresas), the third applicant being its President.
(viii) In early January 1991 the third applicant had presented to his CPSU superiors in Moscow a plan for “USSR Presidential Rule” in Lithuania. The third applicant had also been involved in organising various meetings and strikes in order to achieve the execution of that plan. Following which, on 10 January 1991 President Gorbachev publicly required the Supreme Council of the Republic of Lithuania to “reinstate immediately the legal force of the USSR and LSSR Constitutions in Lithuania.”
(ix) On 11 January 1991 the CPL/CPSU had sent an ultimatum to the Government of Lithuania, ordering it to comply with the declaration of the USSR President. Failing that, the CPL/CPSU had announced that it would create the “Lithuanian National Rescue Committee” (Lietuvos nacionalinio gelbėjimo komitetas), “which would take care of matters concerning the future of the LSSR.”
(x) In addition to the ultimatum of 11 January 1991, the CPL/CPSU had made five public declarations during the period from 11 to 19 January 1991, urging the forceful overthrow of the Government and the other authorities of independent Lithuania. The first and the third applicants had been responsible for preparing those declarations, whilst the second applicant had been responsible for disseminating them in the media.
(xi) During the Soviet Army’s invasion of the Lithuanian public media headquarters and other buildings in Vilnius from 11 to 13 January 1991 (see paragraph 21 above), the third applicant had actively collaborated with the CPSU and the USSR authorities, inciting them to use military force, with the help of vigilantes, against the unarmed civilian population which had assembled to defend Lithuanian independence around these buildings. The third applicant had therefore been an accomplice of the officers of the Soviet Army, who had murdered 13 Lithuanian civilians, severely injured 16 people, and caused medium or mild bodily harm to 724 persons. All the victims and the types of the injuries sustained during the confrontations during the night of 12-13 January 1991 were listed in detail in the judgment. The applicants were also convicted in respect of the unlawful occupation of Lithuanian State premises.
(xii) One of the applicants’ co-defendants, J.J., had been considered to be the founder of and main participant in the Lithuanian National Rescue Committee, which had been particularly active during the attempted coup of 11-13 January 1991. The first and the second applicants had also been held to have participated in the activities of this Committee by disseminating various public declarations on its behalf through the radio station “Soviet Lithuania”. Those declarations had urged the forceful overthrow of the legitimate Government of Lithuania.
(xiii) On 14 January 1991 the Supreme Council had adopted a decision on the so-called Lithuanian National Rescue Committee, declaring its creation and actions to be “anti-constitutional, subversive and thus illegal.”
(xiv) Following the events of January 1991, the applicants had continued unlawfully to occupy several buildings with the assistance of the Soviet Army, including the Lithuanian public television and media headquarters in Vilnius.
(xv) On 17 March 1991 the CPL/CPSU had unsuccessfully tried to organise a referendum on Lithuania’s stay within the USSR, the third applicant having been particularly active in the matter.
(xvi) The applicants had continued their subversive activities within the CPL/CPSU up until the failed Moscow coup in August 1991.
(xvii) The CPL/CPSU was thus recognised as an anti-state organisation within the meaning of Article 70 of the Criminal Code as then in force (see paragraph 78 below). Similarly, the LSSR Citizens’ Committee, the LSSR Party’s Interior Committee, the Association of Free Businessmen, the radio station “Soviet Lithuania”, the Workers’ Vigilance Committees, the Congress of Democratic Forces of Lithuania and the Lithuanian National Rescue Committee were also recognised as such organisations, the CPL/CPSU having set up or controlled all of them.
(xviii) As regards the first applicant, the court concluded that, in his capacity as the Secretary of the Central Committee of the CPL/CPSU, he had publicly urged the forceful overthrow of the lawful Government of Lithuania and the abolition of the sovereignty of the Lithuanian State, between the Act on the Re-establishment of the State of Lithuania of 11 March 1990 and the failed coup in Moscow in August 1991. It was also found that the first applicant had obstructed the functioning of the democratically created institutions of independent Lithuania, and had participated in the activities of the anti-state organisations mentioned above.
51. The first applicant was convicted of offences under Article 68 of the then Criminal Code (publicly urging the forceful overthrow of the sovereignty of the State) and Article 70 of that Code (the creation of and participation in the activities of anti-state organisations). He was sentenced to six years’ imprisonment.
52. As regards the second applicant, the court concluded that, in his capacity as a member of the Central Committee of the CPL/CPSU and Director of the radio station “Soviet Lithuania”, he had participated in the activities of anti-state organisations between 11 March 1990 and August 1991. He had been responsible for broadcasting various transmissions, urging inter alia the forceful overthrow of the lawful Government of Lithuania and the abolition of the sovereignty of the Lithuanian State.
53. The second applicant was convicted of an offence under the then Article 70 of the Criminal Code and sentenced to three years’ imprisonment. He was acquitted of sabotage (Article 67 of that Code).
54. As regards the third applicant, the trial court concluded that, in his capacity as First Secretary of the Central Committee of the CPL/CPSU, he had participated in the activities of anti-state organisations, and had obstructed the functioning of the institutions of independent Lithuania between 11 March 1990 and August 1991. He had also publicly urged the forcible overthrow of the lawful Government of Lithuania and the abolition of the sovereignty of the Lithuanian State. It was further found that he had urged that Soviet troops be used against the unarmed civilian population during the events of 12-13 January 1991, thus being responsible for the death of and injuries to the victims of those events.
55. The third applicant was convicted of offences under Articles 68 and 70 of the Criminal Code. He was also convicted of complicity in aggravated murder and causing various types of bodily harm during the events of 12-13 January 1991 (Articles 105, 111, 112 and 116, in conjunction with Article 18 of the Criminal Code as then in force). He was sentenced to 12 years’ imprisonment, but acquitted of sabotage.
56. The other three co-defendants were also convicted.
57. On 20 February 2001 the Court of Appeal amended the applicants’ conviction under Article 70 of the then Criminal Code insofar as it related to their activities in the CPL/CPSU and its subsidiary organisations between 11 March and 10 November 1990. The Court of Appeal found that, prior to the legislative amendment of 10 November 1990, Article 70 of the Criminal Code dealt with the activities of anti-Soviet organisations, and could not be applied by analogy to the activities of anti-Lithuanian organisations. However, in view of the legislative amendment, criminal responsibility was thereafter clearly established by Article 70 for actions directed against the sovereignty of the Lithuanian State (see paragraph 78 below). The court therefore held that the domestic criminal law did not provide for criminal responsibility on the ground of the applicants’ membership of the CPL/CPSU until 10 November 1990, and that they could only be convicted for their activities within that party and other anti-state organisations after that date.
58. The appellate court also quashed the third applicant’s conviction insofar as it related to complicity in causing medium and mild bodily harm (Articles 112 and 116 of the then Criminal Code, in conjunction with Article 18) in view of the expiry of the statutory time-limit for bringing criminal proceedings in respect of those offences. His conviction remained insofar as it related to his being an accomplice to aggravated murder and causing serious bodily harm (Articles 105 and 111 of the then Criminal Code, in conjunction with Article 18).
59. The first and the third applicants’ convictions under Article 68 § 3 of the Code and their sentences remained unchanged. The second applicant’s sentence was reduced to one year and six months’ imprisonment.
60. The Court of Appeal otherwise confirmed a substantial part of the first instance court’s findings and held that, under international law, the new Government of Lithuania had had legitimate authority as of 11 March 1990 over the territory of Lithuania, and that the occupation and annexation by the Soviet Union for over 50 years had been annulled as of that date. The later recognition of this fact by foreign States merely acknowledged the existing reality. The fact that it took the new Government time to replace the previous Soviet structures of the State did not imply any continued dependence on the USSR. However, the applicants, being leading anti-state activists and communist party executives, had unlawfully sought to overturn the Lithuanian Government and re-instate Soviet power.
61. On 28 December 2001 the Supreme Court dismissed the applicants’ cassation appeals. That decision was final.
62. The first applicant’s attempts to obtain release on licence were to no avail. It seems he was eventually released on 23 August 2004. On an unspecified date the second applicant was also released from prison after having served his sentence. The third applicant was released on 13 January 2006.
63. The Act on the Re-establishment of the State of Lithuania of 11 March 1990 was worded as follows:
“The Supreme Council of the Republic of Lithuania, expressing the will of the Nation, decrees and solemnly proclaims that the execution of the sovereign powers of the Lithuanian State, abolished by a foreign force in 1940, is re-established, and henceforth Lithuania is again an independent State.
The Act of Independence of 16 February 1918 of the Council of Lithuania and the Decree of the Constituent Assembly [Parliament] of 15 May 1920 on the re-established democratic State of Lithuania have never lost their legal effect, and constitute the constitutional foundation of the State of Lithuania.
The territory of the State of Lithuania is whole and indivisible, no constitution of another State being effective on it.
The State of Lithuania stresses its adherence to the universally recognised principles of international law, recognises the principle of the inviolability of borders, as formulated in the Final Act of the Helsinki Conference on Security and Co-operation in Europe of 1975, and guarantees human, civic and ethnic community rights.
The Supreme Council of the Republic of Lithuania, expressing sovereign power, by this Act begins to realise full State sovereignty.”
64. On 11 March 1990, by the Law on the Re-instatement of the Lithuanian Constitution of 12 May 1938, the Supreme Council restored certain essential provisions of the original Lithuanian Constitution, thereby discontinuing the effect of the USSR Constitution of 1977 and the LSSR Constitution of 1978.
65. On the same date the Supreme Council adopted the Provisional Basic Law of the Republic of Lithuania (Laikinasis pagrindinis įstatymas), setting out the constitutional principles of the newly restored State of Lithuania. In particular, this Law referred to Lithuania as a sovereign democratic republic, the power being vested in the people and exercised by Parliament, the Government and the judiciary. Moreover, it provided that all earlier laws and legal acts continued to be in force as long as they were not incompatible with the new Provisional Basic Law. It remained valid until 2 November 1992.
66. On 11 and 13 March 1990 the Supreme Council decided that all the authorities of the USSR and the LSSR and any public institution on the territory of Lithuania fell under the jurisdiction of the Republic of Lithuania. By these provisions, as well as by the Government Act of 22 March 1990, the Government of the Republic of Lithuania were empowered to exercise full control over all institutions on the territory of the country.
67. On 23 May 1990 the Supreme Council adopted Resolution No. 1-226 suspending the implementation of acts and decisions originating in the laws passed on 11 March 1990, subject to and pending official negotiations with the USSR. The Resolution was to come into effect at the start of negotiations. However, by Resolution No. 1-340 dated 29 June 1990, it was declared null and void with immediate effect.
68. It was replaced by a Statement of 29 June 1990, announcing a 100-day extendable moratorium on the Act on the Re-establishment of the Independent State of Lithuania, and the legal acts stemming from that legislation, to start when negotiations with the USSR would be underway:
“The Supreme Council of the Republic of Lithuania,
Expressing and continuing to express the sovereign powers of the Nation and State, re-establishing the independent State of Lithuania, and seeking interstate negotiations between the Republic of Lithuania and the Union of Soviet Socialist Republics for the purpose of the execution of all those powers,
Declares, from the start of such negotiations, a moratorium of 100 days on the Act on the Re-establishment of an Independent State of Lithuania; that is, it suspends the legal actions stemming from that Act.
The start of negotiations between the Republic of Lithuania and the USSR, their aims and conditions, shall be determined by a special protocol of the parties’ authorised delegations.
The Supreme Council of the Republic of Lithuania can extend the moratorium or revoke it. The moratorium automatically loses force with the breakdown of negotiations.
If, as a result of any other events or circumstances, ... the Supreme Council of the Republic of Lithuania will not be able to execute normally the functions of State government, the moratorium will lose force at the same time.”
69. On 25 September 1990 the Supreme Council adopted the Law on Political Parties, which confirmed that the political parties of other States and parties operating outside the framework of the Provisional Basic Law would be considered illegal. Article 4 of that Law provided that such parties could not obtain the necessary registration. Political parties would be accepted for registration only in “the interests of the consolidation of the independent and democratic State of Lithuania”.
70. On 28 December 1990 the Statement (moratorium) of 29 June 1990 was denounced by the Supreme Council, and was not referred to again in official documents. Taking into account the fact that the USSR delegation did not agree to sign a protocol for the start of interstate negotiations, the Supreme Council renounced the principles laid down for that procedure, including the conditional moratorium. It envisaged the possibility that negotiations could nevertheless start without signing a protocol, but only if the sovereignty of the State of Lithuania were not violated.
71. In view of the response given by the majority of the Lithuanian population in a nation wide referendum, on 11 February 1991 the Supreme Council adopted a law stating that the notion that the “Lithuanian State is an independent and democratic republic” was a basic constitutional principle.
72. On 14 January 1991 the Supreme Council adopted a decision “on the so-called Lithuanian National Rescue Committee”, in which it declared its creation and actions to be “anti-constitutional, subversive and thus illegal.”
73. On 22 August 1991 the Supreme Council adopted a decision confirming the illegality of the CPL/CPSU.
74. The applicants were convicted under the Criminal Code which had been adopted by the Supreme Council of the LSSR on 26 June 1961, and which continued to apply to the territory of Lithuania, with numerous amendments, until the entry into force of a new Criminal Code on 1 May 2003.
75. On the basis of the Provisional Basic Law of 11 March 1990, the provisions of the Criminal Code 1961 (hereafter the “CC”) were deemed to apply following the re-establishment of Lithuania’s independence as long as those provisions were compatible with that legislation (see paragraph 65 above).
76. Article 18 of the CC dealt with issues of complicity.
77. Article 68 of the CC punished anti-Soviet agitation and propaganda. It penalised, inter alia, especially serious crimes against the Soviet State and the propagation of anti-Soviet, defamatory fiction. By a legislative amendment of 4 October 1990, which came into force on 10 November 1990, Article 68 of the CC was rephrased, specifying the criminalisation of acts directed against the sovereignty of the Republic of Lithuania. Paragraph 3 of that Article punished such acts, if committed at the request of a foreign State or organisation, with up to 10 years’ imprisonment.
78. Article 70 of the CC prohibited the creation of and active participation in anti-Soviet organisations with a view to preparing or committing especially serious crimes against the State. Following the legislative amendment of 10 November 1990, Article 70 of the CC was rephrased to prohibit participation in acts aimed at disturbing the public or social order established by the Provisional Basic Law (the Constitution), to limit the sovereign powers of the Lithuanian State or to separate any part of its territory by force.
79. Prior to these amendments to the Criminal Code, on 2 May 1990 the Law on the Rehabilitation of Persons Repressed for Resistance to the Former Occupying Regimes was adopted by the Supreme Council. Thereby those persons who had been convicted under the previous anti-Soviet version of Articles 68 and 70 of the CC were declared innocent in the eyes of the Republic of Lithuania and their civil rights restored to them.
80. Article 105 of the CC punished acts of aggravated murder.
81. Article 111 of the CC punished acts causing serious bodily harm.
82. The Committee on Legal Affairs and Human Rights of the Parliamentary Assembly monitored the Human Rights situation in Lithuania, which process included a visit by a delegation to that country and a meeting with the third applicant in Lukiškės Prison. The Rapporteur commented afterwards in his report of 7 January 2000 (AS/JUR(2000)02) that:
“40. The main conclusion to be drawn is that justice cannot be used as a means of mastering recent history, concerning which very little research exists. There is a great danger of inspiring and feeding a desire for revenge in the national conscious and unconscious, thus bringing about new injustices.
41. For example, it is impossible to determine the degree of independence, and hence the responsibility, of a provincial Communist party leader before historical research has been done to assess the decision-making autonomy and the real powers of such an official under the Communist party system that prevailed in the former Soviet Union.”
NON_VIOLATED_ARTICLES: 10
11
14
6
7
9


ITEMID: 001-83985
LANGUAGEISOCODE: ENG
RESPONDENT: UKR
BRANCH: CHAMBER
DATE: 2007
DOCNAME: CASE OF KOLNOOCHENKO AND OTHERS v. UKRAINE
IMPORTANCE: 4
CONCLUSION: Violation of P1-1
JUDGES: Peer Lorenzen
TEXT: 4. The applicants were born in 1939, 1940, 1940, 1937 and 1972 respectively. On 30 January 2007 the second applicant died. By letter of 12 April 2007, Mrs Svetlana Ivanovna Shashkova, the second applicant's widow, informed the Court that she wished to pursue the application.
5. The first applicant was employed by a subsidiary of the Statecontrolled “Pivdenelekromash” OJSC (“the Company,” ВАТ “Південелектромаш”) until her dismissal on redundancy in 2005. The other applicants were employed by the Company itself.
6. Between January 2001 and May 2004 (see appendix for details) each applicant obtained one or more final judgments from the Nova Kakhovka Court (Новокаховський міський суд Херсонської області), awarding him or her salary arrears or other payments against his or her employer.
7. The writs of enforcement in respect of these judgments were transferred to the Nova Kakhovka City Bailiffs' Service (Відділ Державної виконавчої служби Новокаховського міського управління юстиції), which initiated the enforcement proceedings. On different occasions the bailiffs informed the applicants that the collection of the debts was impeded by pending bankruptcy proceedings against the Company.
8. In March 2006 the judgment given in favour of the first applicant and two of the three judgments given in favour of the second applicant were enforced in full. Other judgments remain fully or partially unenforced.
9. The relevant domestic law is summarised in the judgments of Romashov v. Ukraine (no. 67534/01, §§ 16-19, 27 July 2004) and Trykhlib v. Ukraine (no. 58312/00, §§ 25-32, 20 September 2005).


ITEMID: 001-113909
LANGUAGEISOCODE: ENG
RESPONDENT: AUT
BRANCH: ADMISSIBILITY
DATE: 2012
DOCNAME: BALLUCH v. AUSTRIA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Elisabeth Steiner;Erik Møse;Julia Laffranque;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska;Peer Lorenzen
TEXT: 1. The applicant, Mr Martin Balluch, is an Austrian national who was born in 1964 and lives in Vienna. He is represented before the Court by Mr S. Traxler, a lawyer practising in Mödling. The Austrian Government (“the Government”) were represented by their Agent, Ambassador H. Tichy, Head of the International Law Department at the Federal Ministry of Foreign Affairs.
2. The facts of the case, as submitted by the parties, may be summarised as follows.
3. The applicant is the chairperson of the Association Against Animal Factories (Verein gegen Tierfabriken – “the Association”), an association for the protection of animals.
4. On 10 December 2003 the applicant, as chairperson of the Association, notified, in accordance with Article 2 of the Assembly Act, the Graz Federal Police Authority (Bundespolizeidirektion) that the Association intended to hold an assembly, namely to set up a public information booth in the pedestrian zone in Graz on 12 December 2003 between 12 p.m. and 9 p.m. and on 13 December 2003 between 8.30 a.m. and 9 p.m. in order to inform people of the suffering of fur-bearing animals. He indicated that he expected that five people would man the booth and added that the following material would be used: a display of posters, banners, leaflets, tables, an electricity generator, a petition on which signatures would be gathered, a video projector, a projection screen and a car (Plakatständer, Transparente, Flugblätter, Tische, Stromgenerator, Unterschriftenlisten, Videobeamer, Leinwand, Fahrzeug).
5. On 13 December 2003 the Association set up its information booth in the city of Graz. It set up a table with a television screen and a video projector fed by an electric generator and showed a documentary on the suffering of fur-bearing animals used for scientific experiments and for the production of fur, while two or three people belonging to the Association distributed leaflets. Several people held banners and chanted slogans. Passers-by were able to sign a petition in support of the Association’s stance and some of them entered into discussions with the animal rights activists.
6. Subsequently, on 10 February 2004, the Graz Municipal Authority issued a penal order against the applicant in the amount of 200 euros (EUR), finding that the Association had not requested prior authorisation by the competent authority under section 54 of the Styrian Regional Roads Administration Act (Landesstraßenverwaltungsgesetz – hereinafter “the Roads Act”). As no such permit had been obtained from the Roads Authority, the applicant as the person responsible for the Association had committed an administrative offence.
7. On 31 August 2004 the Styria Independent Administrative Panel (Unabhängiger Verwaltungssenat) dismissed an appeal lodged by the applicant, holding that pursuant to section 54 of the Roads Act the use of streets for any other purpose than their prescribed and intended one required permission, irrespective of whether setting up the information booth had itself been permitted under the Assembly Act. It further held that setting up the information booth could not be considered as an “assembly” within the ordinary meaning of the Assembly Act, as its main purpose had been to inform people rather than getting people together for a common purpose.
8. Thereupon the applicant lodged a complaint with the Constitutional Court on 18 October 2007, complaining of a violation of the right to peaceful assembly under Article 11 of the Convention. In his opinion, section 54 of the Roads Act did not apply to setting up an information booth.
9. On 23 June 2005 the Constitutional Court dismissed the applicant’s complaint. The Constitutional Court found that setting up the information booth qualified as an event protected by Article 11 of the Convention and Article 12 of the Basic Law of the State (Staatsgrundgesetz) concerning freedom of assembly and association. The right to peaceful assembly was guaranteed by the Austrian Constitution and specified by the Assembly Act (Versammlungsgesetz) and any breach of that Act therefore constituted a violation of the underlying fundamental right. It found that the act of setting up the information booth in question fell within the scope of the Assembly Act.
10. The Assembly Act provided that an assembly only had to be notified to the authorities and did not require prior authorisation. Therefore, any system requiring prior authorisation of an assembly was in principle inconsistent with the right to peaceful assembly and unconstitutional. The question was therefore whether the requirements of section 54 of the Roads Act, which required permission for the special use of a road, were in accordance with these provisions of constitutional law. In the Constitutional Court’s view, the Roads Authority had been bound to interpret the Roads Act in conformity with the Constitution (verfassungskonforme Interpretation) and had therefore been obliged to issue the relevant permission. This meant that section 54 of the Roads Act was constitutional.
11. As regards whether fining the applicant for having failed to ask for a permit under section 54 of the Roads Act had violated the applicant’s rights under Article 11 of the Convention, the Constitutional Court found that there had been no such breach given that section 54 of the Roads Act was in conformity with the Federal Constitution; the Roads Authority had been obliged by constitutional law to deliver the relevant permission; and the fine imposed on the applicant had been moderate.
12. Section 54 of the Roads Act reads, insofar as relevant, as follows:
“(1) Any use of the road ... for any other purpose than it was intended for requires the explicit permission of the Roads Authority. ...”
13. Section 56 of the Roads Act reads, insofar as relevant, as follows:
“(1) A breach of section ... 54 ... is an administrative offence liable to be punished by the DAA with a fine of up to EUR 2,180 or with imprisonment in default [of payment] of up to 6 weeks. Fines levied shall be passed on to the Roads Authority and used for road maintenance purposes.”
14. Article 2 of the Assembly Act reads as follows:
“(1) Whoever wants to hold a public assembly where access is not restricted to invited guests only shall notify the [relevant] authority in writing at least 24 hours before the intended event specifying its purpose, the place and the time of the assembly. The notification must reach the authority at latest 24 hours before the time of the assembly.
(2) Upon request the authority must immediately issue a certificate [attesting to] the notification of the assembly. Notification is not subject to any fee.”