ITEMID: 001-101017
LANGUAGEISOCODE: ENG
RESPONDENT: FIN
BRANCH: CHAMBER
DATE: 2010
DOCNAME: CASE OF SAARISTO AND OTHERS v. FINLAND
IMPORTANCE: 3
CONCLUSION: Violation of Art. 10;Pecuniary damage - award
JUDGES: David Thór Björgvinsson;Lech Garlicki;Ledi Bianku;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä
TEXT: 5. The first applicant was born in 1946 and lives in Kerava. The second applicant was born in 1949 and was resident in Helsinki at the time of his death. The applicant company is based in Helsinki. The first applicant is a journalist and the second applicant was the editor-in-chief of the newspaper called Ilta-Sanomat which was published at the time of the events by the publishing company Sanoma Osakeyhtiö. On 1 January 2005 Sanoma Osakeyhtiö transferred all its business relating to the publishing of Ilta-Sanomat, including court cases, to the applicant company. The newspaper has a circulation of approximately 200,000.
6. On 3 February 2000, during the presidential election campaign, the applicant company published a short article, written by the first applicant and approved by the second applicant, entitled “The ex-husband of [R.U.] and the person in charge of communications for the Aho campaign have found each other”.
7. The article stated that P.N., who had separated from his wife, had found a new partner, O.T. P.N.'s wife was known as a political reporter in the election-related TV debates and previously as a news reader. It was mentioned in the article that O.T. was in charge of communications for the Aho campaign and that, in her civilian life, O.T. was the communications manager in a specified pension insurance company and a mother.
8. The article went on to state that, before joining the campaign, O.T. had been active in the same political party as P.N. and that she had been involved in some “insider committees”. The article continued to note that P.N. worked as a director for Finnpro, the company promoting Finnish exports, and that in the 1990s he had been posted in New York, where his wife had followed him, taking leave from her own job. The article stated that P.N. and his wife had two children and that they had separated in the autumn of 1999. Pictures of O.T. and P.N.'s wife were included in the article.
9. On 13 March 2000 O.T. asked the police to investigate the matter. She requested compensation for suffering and distress and for financial losses.
10. On 4 July 2001 the public prosecutor brought charges against the applicants under Chapter 27, section 3(a), of the Penal Code. O.T. concurred with the charges and pursued a compensation claim against all the applicants, which was joined to the criminal charges.
11. On 1 February 2002 the Forssa District Court (käräjäoikeus, tingsrätten) convicted the applicants for having violated O.T.'s private life. The first applicant was sentenced to a fine of 270 euros (EUR) and the second applicant to a fine of EUR 650. The applicants were jointly ordered to pay damages to O.T. for suffering amounting to EUR 5,045.64 and her legal fees and witness costs amounting to EUR 6,500, both sums with interest.
12. The court found that O.T., despite her position in the presidential campaign, was not a public figure and that her relationship with P.N. was not such that the applicants would have been allowed to write about it without her consent. The information published, however accurate, was not necessary for examining any matter of interest to society.
13. The applicants appealed to the Turku Court of Appeal (hovioikeus, hovrätten) claiming that, due to her position in the presidential campaign and as a local politician, O.T. was a so-called public figure, that the facts in the article were true and that the issue was important for public discussion since one of the main focuses of the presidential campaign was family values. O.T. worked for a candidate who was a married father of four children, in contrast to the other candidate, who was a single mother cohabiting without being married. Hence, O.T.'s extramarital affair was of importance to the public. The affair had been public, thus information about it could not be private. The information was connected to O.T.'s public function and was necessary in order to discuss an important matter for society.
14. Following an oral hearing on 12 November 2002, the Court of Appeal upheld the District Court's judgment on 12 December 2002. It found that the information published had had no importance for society but only served the general curiosity of the public.
15. On 3 February 2003 the applicants appealed to the Supreme Court (korkein oikeus, högsta domstolen), reiterating the grounds of appeal already presented before the Court of Appeal.
16. On 7 October 2003 the Supreme Court granted the applicants leave to appeal.
17. On 4 July 2005 the Supreme Court upheld the Court of Appeal's judgment as far as the applicants were concerned and ordered them jointly to pay O.T.'s legal fees amounting to EUR 2.415,60 plus interest. It found, inter alia, the following:
“... The Supreme Court states that information concerning emotional relationships, dating and family life undoubtedly fall within the scope of private life and even its core areas.
...
Evaluation of the content of the article
The Supreme Court states that the contents of the article do not support the defendants' allegation that the purpose of the article was to describe the political co-operation between O.T. and P.N. The expressions used in the article, according to which O.T. and P.N. “found each other” and “P.N. has found a new partner”, together with the disclosure in the same connection of P.N.'s divorce and that O.T. was a mother, are not conducive to creating a conception of political co-operation, but it is obvious that the intention was to refer to a personal love affair. Even though the article does mention O.T.'s and P.N.'s political affiliations and O.T.'s function in the presidential election campaign, there is nothing else political in the article. Nor when viewed as a whole, the article does not give an impression that it aimed to tell about a relationship that was politically important. Its crucial aim had clearly been to spread information about an intimate relationship of public persons.
Significance of O.T.'s function
...
The Supreme Court states that O.T. has served at the relevant time a politically important function which involved publicity and because of which her person as an official in the presidential candidate's inner circle has attracted justified interest. Another question is, however, whether O.T.'s position has been such that also issues relating to her private life could have been revealed in public without her consent.
...
O.T has served the campaign as a hired expert without herself pursuing political office or other public function. As put forward by the defendants, O.T.'s appointment as the person in charge of communications had probably been affected, in addition to her professional merits, by considerations of a political nature. This does not, however, change the fact that in spite of some other former political positions of trust occupied by her, O.T. was not known as a politician prior to being employed in the electoral campaign nor has she, after having become a temporary campaign assistant, stood as a candidate for any political office. ..... O.T. was not a civil servant but an assistant to a political candidate. Nor does it follow from the political considerations of her recruitment that, considering the nature of the campaign, the protection of her private life would for this reason have become similarly restricted as in respect of the politician she was assisting.
O.T.'s function as an official of the presidential campaign was not, either, the kind that would have made her obliged in her private life to stand for or become committed to the values advanced by the candidate. Even if the communication between O.T. and P.N. could also have had professional content and significance as to O.T.'s function, the intimate nature of the relationship had nothing to do with that aspect of the matter. The extra-marital relationship was not, at any rate, a consideration that would have had an impact on O.T.'s capacities to perform her function as a communications expert hired for the election campaign. .... The consideration mentioned by O.T. that the reason behind the publication of the article would have been to affect the campaign, has no relevance to whether the defendants have been guilty of violating O.T.'s private life. The offender's possible political motivation or O.T.'s assumption about it have no relevance to the justification of the act in case there were no legal grounds for disclosing information concerning private life.
On the above-mentioned grounds the Supreme Court considers that the disclosure in the media of an extra-marital relationship of a person in O.T.'s position or exposure in public of the morals of her private life was not justified by the public's need to receive information nor by the important interests of society. There was thus no legal right to disclose information about O.T.'s private life in the article on the basis of her functions.
Significance of the position of other persons mentioned in the article
...
As mentioned in the preparatory works for Chapter 24, section 8, of the Penal Code, the restrictions on the protection of private life on the basis of a person's position or function only applies to that person him or herself. Even though it would be permissible to write about the private life of a politician or a performing artist, this cannot be extended to such person's relatives, acquaintances or other outsiders (HE 184/1999 vp, p. 32). The Supreme Court states that P.N.'s position and the fact that his ex-spouse was known from the television are not issues that could change the above-mentioned conclusion and justify such publication of information about O.T.'s private life like in the present case.
Nor has the fact that P.N.'s ex-spouse had conducted election debates on television prior to the publishing of the article had any relevance. Even though it is possible that such personal scenario, which is completely irrelevant vis-à-vis the presidential candidates, interests certain public circles more than the content of the election debates and the candidates' own performance, such satisfying of curiosity is not a fact that would have justified the publishing of information about O.T.'s private life. There was thus no legal right to disclose information about O.T.'s private life on this ground either.
Claim that the relationship was known of by outsiders
The defendants have also claimed that O.T.'s and P.N.'s close relationship had been open and visible to outsiders, and that it was known among politicians. The Supreme Court states that the protection of private life is not only limited to facts or events that take place in private or in closed events. The fact that an issue of private life is noticeable in a certain event or in public places does not mean as such that it would be left outside the protection of private life (see for example the European Court of Human Rights' judgment in the case Peck v. United Kingdom, judgment of 28 January 2003, §§ 62-63; and the judgment in the case von Hannover, in which the pictures found to violate private life were mostly taken in public places). The contrary can also be true if the persons involved clearly show by their behaviour that they want to make the issue public.
Moreover, the Supreme Court states that the fact that a piece of information about private life has come to the knowledge of a certain group of persons through their own observations or private gossiping is not a ground that would permit distribution of that information through the media to a wider public without the consent of the person concerned. Publication of such an article in the media is conducive to causing harm and suffering to the person concerned and to his or her close ones, just as O.T. has described.
... In the present case it has not been shown that O.T., by being with P.N. at the same events or in public places, would have meant their relationship to be public or that information about it should be freely distributable. O.T. cannot be regarded as having performed in a manner that could lead to the conclusion that she, even implicitly, would have given her consent to the distribution of the information written in the article.
Conclusions
On the basis of the above-mentioned, the Supreme Court, like the lower instances, has come to the conclusion that the publication of the article violated O.T.'s private life. The act was intentional, a fact which has not even been contested before the Supreme Court. [The first and second applicants] have thus been guilty of invasion of private life, as already held by the lower courts. .....”
18. The outcome of the Supreme Court's judgment was not unanimous, one of the Justices gave a dissenting opinion. According to him, and taking into account the direct effect of the Strasbourg Court's judgments, the exceptions to Chapter 27, section 3(a), of the Penal Code had to be interpreted extensively, both regarding the extent of the political activity and the scope of a matter of interest to society. O.T.'s recruitment to the presidential election campaign had attracted political interest due to the fact that her party political background was different from that of the candidate she was assisting. There had been public speculation that, by her appointment, her candidate had tried to attract voters from her party and especially female voters. Even though it could not be said that O.T. had, by taking part in the election campaign, become a public figure, she must have understood that, as an important figure in the inner circle of one of the two candidates, she would also attract public interest. O.T. had thus been politically active and this activity had been public. As to the article, the Justice noted that the information about O.T.'s private life, even if not strictly relevant to her functions as the communications official, was conducive to contributing to public debate through the fact that family values had been at the centre of the political value debate in the presidential campaign. The article did not only satisfy the curiosity of certain readers but it also contributed to an important matter of public interest as political background information. One could rely on criminal law sanctions in a case of political journalism only exceptionally, namely if freedom of expression was clearly abused. As this was not so in the present case, the Justice did not consider the publication of the article as a punishable act and would have annulled the previous judgments.
19. Article 12 of the Constitution of Finland (Suomen perustuslaki, Finlands grundlag, Act no. 731/1999) provides the following:
“Everyone has the freedom of expression. Freedom of expression entails the right to express, disseminate and receive information, opinions and other communications without prior prevention by anyone. More detailed provisions on the exercise of the freedom of expression are laid down by an Act. Provisions on restrictions relating to pictorial programmes that are necessary for the protection of children may be laid down by an Act. Documents and recordings in the possession of the authorities are public, unless their publication has for compelling reasons been specifically restricted by an Act. Everyone has the right of access to public documents and recordings.”
20. Article 10 of the Constitution guarantees everyone's right to private life. According to it,
“Everyone's private life, honour and the sanctity of the home are guaranteed. More detailed provisions on the protection of personal data are laid down by an Act.
The secrecy of correspondence, telephone and other confidential communications is inviolable.
Measures encroaching on the sanctity of the home, and which are necessary for the purpose of guaranteeing basic rights and liberties or for the investigation of crime, may be laid down by an Act. In addition, provisions concerning limitations of the secrecy of communications which are necessary in the investigation of crimes that jeopardise the security of the individual or society or the sanctity of the home, at trials and security checks, as well as during the deprivation of liberty may be laid down by an Act.”
21. Chapter 27 (as amended by Act no. 908/1974), section 3(a), of the Penal Code (rikoslaki, strafflagen) read, at the relevant time, as follows:
“A person who unlawfully, through the use of the mass media or in another similar manner, publicly disseminates information, an insinuation or an image depicting the private life of another person, such as to cause him or her damage or suffering, shall be convicted of invasion of privacy and sentenced to a maximum term of imprisonment of two years or to a fine. A publication that deals with a person's behaviour in a public office or function, in professional life, in a political activity or in another comparable activity, shall not be considered an invasion of privacy if the reporting was necessary for the purpose of dealing with a matter of importance to society.”
22. In the travaux préparatoires of the above-mentioned provision (see government bill HE 84/1974) there was no precise definition of private life but matters such as, inter alia, family life, spare time activities, health and relationships and such conduct in socially significant positions that had no significance to the relevant exercise of power, were considered as a part of private life. It was further required that the act might have caused damage or suffering. Such damage might have also been “immaterial damage, which might have manifested itself in problems with social interaction or respect”. An ordinary person enjoyed the strongest protection of private life. His or her involvement in an incident of importance to society might have warranted an exception to the protection. In any case, if an offence was of such a kind that it could not be regarded as having social significance, information about that offence was a matter to be protected as belonging to the sphere of private life, otherwise the protection of private life did not restrict publishing. Moreover, the publishing could not be to a greater extent than was necessary. Thus, the necessity of mentioning a person's name or other description of a person enabling identification was always subject to careful consideration.
23. In 2000, Chapter 27, section 3(a), of the Penal Code was replaced by Chapter 24, section 8, (Act no. 531/2000, which entered into force on 1 October 2000). Under the new provision on injury to personal reputation (yksityiselämää loukkaavan tiedon levittäminen, spridande av information som kränker privatlivet) a person who unlawfully, through the use of the mass media or in another manner, publicly spreads information, an insinuation or an image of the private life of another person in such a way that the act is conducive to causing that person damage or suffering or subjecting that person to contempt, shall be convicted of injuring personal reputation. However, an act shall not constitute an injury to personal reputation if it concerns the evaluation of that person's activities in a professional or public capacity and if it is necessary for the purpose of addressing a matter of importance to society.
24. According to the travaux préparatoires (see government bill HE 184/1999), the content of the new provision corresponds to the old Chapter 27, section 3(a), of the Penal Code. The amendments and clarifications made to the existing provision were mainly technical. The provision thus still restricts the protection of the private life of persons having important political or economic powers. This restriction, however, applies only to the persons referred to, not to their close friends and family. According to the Parliamentary Law Committee's Report (lakivaliokunnan mietintö, lagutskottets betänkande LaVM 6/2000), the purpose of that provision is to permit the dissemination of information on the private life of such persons if the information may be relevant in assessing the performance of their functions.
25. The government bill HE 184/1999 further provides that in the assessment of interferences with private life, the lawfulness of the interference and the concept of private life are taken into account. A person's consent to the provision of information has relevance in the assessment of the lawfulness of the interference. Without explicit consent, there is usually no reason to believe that the person in question would have consented to the publication of information relating to private life (see Parliamentary Law Committee's Report LaVM 6/2000). With regard to the concept of private life, a reference is made to the explanatory works concerning the Constitution's provisions on fundamental rights and to the government bill HE 84/1974. Moreover, private life is, in particular, protected against dissemination of information which may be correct as such. In order for the act to be punishable, it is necessary that the information concerns the private life of the person in question (see government bill HE 184/1999).
26. Section 39 of the Freedom of the Press Act (painovapauslaki, tryckfrihetslagen; Act no. 1/1919), as in force at the relevant time, provided that the provisions of the Tort Liability Act applied to the payment of compensation for damage caused by the content of printed material.
27. Chapter 5, section 6, of the Tort Liability Act (vahingonkorvauslaki, skadeståndslagen, Act no. 412/1974, as amended by Act no. 509/2004) stipulates that damages may also be awarded for distress arising inter alia from an offence against liberty, honour, home or private life. Under Chapter 5, section 1, of the said Act, damages shall constitute compensation for personal injury and damage to property. Section 2 provides that a person who has suffered personal injury shall be entitled to damages to cover medical costs and other costs arising from the injury, as well as loss of income and maintenance and pain and suffering.
28. According to the government bill to amend the Tort Liability Act (HE 116/1998), the maximum amount of compensation for pain and suffering from, inter alia, bodily injuries had in the recent past been approximately FIM 100,000 (EUR 16,819). In the subsequent government bill to amend the Tort Liability Act (HE 167/2003, p. 60), it is stated that no changes to the prevailing level of compensation for suffering are proposed.
29. The Supreme Court's decision of 26 September 2001 (KKO 2001:96) concerned the publication in a magazine of an article which had described a pending criminal case in which the accused had been charged with, inter alia, aggravated fraud. The article had been illustrated, without the accused's permission, with another article published previously in another magazine and with a picture of the accused published in that connection. The accused's name had been given in the text of the article and she could be recognised from the picture. The Supreme Court found that the criminal case had no such social significance that would justify its publication without the accused's permission and, consequently, her private life had been invaded.
30. The Supreme Court's decision of 25 June 2002 (KKO 2002:55) concerned an incident following which A., a public figure, and B., his female friend, had been convicted. When interviewing A., B.'s name was mentioned in the television broadcast in January 1997, that is, after they had been convicted. The court found that the facts discussed in the television programme with regard to B. were part of her private life and enjoyed the protection of privacy. The fines imposed on her as punishment for the assault did not constitute a criminal-law sanction justifying publication of her name. The interviewer and the television company were ordered to pay B. damages in the amount of EUR 8,000 for disclosing her identity in the television programme.
31. The decision of 4 July 2005 (KKO 2005:82) concerned the present case. An article had been written about a relationship between A., who worked as a press officer for a candidate in the presidential elections, and B., the ex-spouse of a TV journalist. A.'s photo was included in the article. The Supreme Court, having assessed the provision on the invasion of privacy in the Penal Code in the light of this Court's case-law, found that A. did not hold a position that meant that such details of her private life were of public importance. The article had thus invaded A.'s privacy.
32. In a decision of 19 December 2005 (KKO 2005:136), the Supreme Court noted that an offence was not a private matter for the offender. In principle, however, a person convicted of and sentenced for having committed an offence also enjoyed the right inherent in private life to live in peace. According to the Personal Data Act, any information about the commission of an offence and the resulting sentence qualified as “sensitive” personal data. The publicity per se of criminal proceedings and of related documents did not mean that information made public during the proceedings could be freely published as such by the media. The Supreme Court concluded that publishing the name of a person convicted of, inter alia, assault and deprivation of liberty did not invade his privacy as the person concerned had been convicted of offences of violence which had also degraded the victim's human dignity. Furthermore, the article in question did not include his photo.
33. The Supreme Court's decision of 16 March 2006 (KKO 2006:20) concerned the scope of the private life of a leading public prosecutor whose name or identify had not been revealed in an article which mainly concerned his wife, who had been suspected of having committed a crime. The Supreme Court concluded that the issue had had social significance as the person under suspicion was the public prosecutor's wife. Even though the public prosecutor could have been identified from the article, this was justified by the fact that his own impartiality as a prosecutor was at stake.
34. In the Supreme Court's decision of 22 January 2009 (KKO 2009:3) A. had been convicted of incest with his children and the case file was declared secret. Later A. revealed certain details of the case in a television programme. The court found that, even though the children had remained anonymous in the programme, they could still be identified because A. had appeared in the programme undisguised and his first name had been given. The privacy of the children and their mother had thus been invaded.
35. The latest Supreme Court decision of 16 June 2010 (KKO 2010:39) concerned invasion of privacy of the Prime Minister by his ex-companion. The Supreme Court found that the ex-companion had had no right to disclose intimate details about the Prime Minister's private life and their dating in her book.
36. The Union of Journalists in Finland (Suomen Journalistiliitto, Finlands Journalistförbund ry) publishes Guidelines for Journalists (Journalistin ohjeet, Journalistreglerna) for the purposes of self-regulation. The 1992 Guidelines were in force at the material time and provided, inter alia, that matters falling in the sphere of private life, being detrimental to the relevant party or his or her near relative, should not be published unless the matters are of general significance (Article 24).
37. New Guidelines came into force in 2005, which noted that when publishing public material regard must be had to the protection of private life. Highly delicate information relating to one's personal life may only be published with the consent of the person in question, or if such matters are of considerable public interest (Article 27).
38. Also the Council for Mass Media (Julkisen sanan neuvosto, Opinionsnämnden för massmedier), which is a self-regulating body established in 1968 by publishers and journalists in the field of mass communication and whose task it is to interpret good professional practice and defend the freedom of speech and publication, has issued a number of resolutions and statements, inter alia, in 1980 and 1981. The former concerned the content of private life and the latter disclosure of names in crime news coverage.
39. In its statement of 1980, the Council for Mass Media stated, inter alia, that the protection of private life applies, in principle, to all citizens. The greater and more profound social implications a matter has, the more important it is to be able to publish information thereon. The Council divided persons into three groups as to the protection of identity: (1) persons exercising political, economic or administrative power; (2) other public persons, for example in the sectors of entertainment, sports, arts or science; and (3) ordinary citizens. The Council noted that the protection of identity is narrowest for group 1 and most extensive for group 3. However, this scale was not to be used formally, but the extent of protection should be interpreted on a case by case basis. A person's position had a great significance in determining the protection of private life but that alone could not be considered as a decisive factor. The significance of a matter also had an important impact. The conduct of a well-known person appearing in public in connection with his or her professional tasks or public role does not as such belong to such person's protected private life. On the contrary, information concerning lifestyle does normally belong to such person's sphere of private life even though his or her sphere of protection is narrower than that of an ordinary citizen. In some cases information concerning one's lifestyle can be closely connected to his or her professional tasks in a way that its publishing is justified. It is required, however, that the matter in question does have considerable general significance. Also, the publishing should not extend further than is necessary for the consideration of the matter. Finally, it is in accordance with good journalistic practice to see to it that the publishing does not cause undue suffering for the person in question or for his or her relatives.
40. On 4 October 2007 the Parliamentary Assembly of the Council of Europe adopted Resolution 1577 (2007), Towards decriminalisation of defamation, in which it urged those member States which still provide for prison sentences for defamation, even if they are not actually imposed, to abolish them without delay.
VIOLATED_ARTICLES: 10


ITEMID: 001-58458
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: GRANDCHAMBER
DATE: 2000
DOCNAME: CASE OF CABALLERO v. THE UNITED KINGDOM
IMPORTANCE: 1
CONCLUSION: Violation of Art. 5-3;Violation of Art. 5-5;Not necessary to examine Art. 13;Not necessary to examine Art. 14+5-3;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings
JUDGES: Luzius Wildhaber;Nicolas Bratza;Paul Mahoney
TEXT: 6. In 1987 the applicant, who was born in 1926, was convicted of manslaughter by the Central Criminal Court, London. His record sheet read “manslaughter – heavy drinking session with female. In bed, during which he sexually interferes with her. Struggle ensues during which she dies”. The naked body of the victim, a neighbour of the applicant, was discovered outside the door of her flat wrapped in a bedspread. The applicant was sentenced to four years’ imprisonment. He was released in August 1988.
7. On 2 January 1996 the applicant was arrested by the police on suspicion of attempted rape of his next-door neighbour. He maintained that he had had sexual intercourse with the woman with her consent and the woman claimed that the incident had taken place after she had blacked out from drinking. He was brought before the Magistrates’ Court on 4 January 1996. While the applicant instructed his solicitor to apply for bail on his behalf, no bail application was or could have been made in view of section 25 of the Criminal Justice and Public Order Act 1994. The record of the hearing of 4 January 1996 refers to section 25 of the 1994 Act as the reason for the refusal of bail. The applicant was remanded in custody by the Magistrate on 4 and 11 January 1996, the second appearance being necessary in view of the possibility (later abandoned) of the prosecution amending the charge against the applicant.
8. The applicant was convicted of attempted rape and of assault occasioning actual bodily harm in October 1996. On 17 January 1997 he was sentenced to four years’ imprisonment for the assault conviction and to life imprisonment for the attempted rape conviction. The trial court deducted the period of his pre-trial detention from the sentence imposed pursuant to section 67 of the Criminal Justice Act 1967. On 11 July 1997 the Court of Appeal rejected his appeal against sentence.
9. Section 4 of the Bail Act 1976 as amended (“the 1976 Act”) provided that a person accused of a criminal offence should be granted bail except as stated in Schedule 1 to the Act. Paragraph 2 of Schedule 1 provided that a defendant need not be granted bail if the court was satisfied that there were substantial grounds for believing that the defendant, if released on bail, would fail to surrender to custody, commit an offence while on bail or interfere with witnesses or otherwise obstruct the course of justice, whether in relation to himself or any other person.
10. Under paragraph 9 of Schedule 1 to the 1976 Act, in taking the above decision, the court was to have regard to such of the following considerations, as well as to any other considerations, as appeared to that court to be relevant:
– the nature and seriousness of the offence or default (and the probable method of dealing with the defendant for it);
– the character, antecedents, associations and community ties of the defendant;
– the defendant’s record as regards the fulfilment of his obligations under previous grants of bail in criminal proceedings; and
– except in the case of a defendant whose case was adjourned for inquiries or a report, the strength of the evidence of his having committed the offence or having defaulted.
11. According to paragraph 9A of Schedule 1 to the 1976 Act, if a defendant (who had been charged with murder, manslaughter, rape, attempted murder or attempted rape) was granted bail and representations had been made as regards the matters mentioned in paragraph 2 of Schedule 1, the court had to state its reasons for granting bail and cause those reasons to be included in the record of the proceedings.
12. Section 25 of the Criminal Justice and Public Order Act 1994 (“the 1994 Act”) came into force on 10 April 1995 and provided as follows:
“(1) A person who in any proceedings has been charged with or convicted of an offence to which this section applies and in circumstances to which it applies shall not be granted bail in those proceedings.
(2) This section applies, subject to subsection (3) below, to the following offences, ... –
(a) murder;
(b) attempted murder;
(c) manslaughter;
(d) rape; or
(e) attempted rape.
(3) This section applies to a person charged with or convicted of any such offence only if he has been previously convicted by or before a court in any part of the United Kingdom of any such offence or of culpable homicide and, in the case of a previous conviction of manslaughter or culpable homicide, if he was then sentenced to imprisonment or, if he was then a child or young person, to long-term detention under any of the relevant enactments.
…”
13. Section 25 of the 1994 Act has been amended by section 56 of the Crime and Disorder Act 1998, which entered into force on 30 September 1998. Section 56 of the 1998 Act reads as follows:
“In subsection (1) of section 25 of the 1994 Act (no bail for defendants charged with or convicted of homicide or rape after previous conviction of such offences), for the words ‘shall not be granted bail in those proceedings’ there shall be substituted the words ‘shall be granted bail in those proceedings only if the court or, as the case may be, the constable considering the grant of bail is satisfied that there are exceptional circumstances which justify it’.”
VIOLATED_ARTICLES: 5
VIOLATED_PARAGRAPHS: 5-3
5-5


ITEMID: 001-113929
LANGUAGEISOCODE: ENG
RESPONDENT: SVK
BRANCH: CHAMBER
DATE: 2012
DOCNAME: CASE OF ZBOROVSKÝ v. SLOVAKIA
IMPORTANCE: 3
CONCLUSION: Preliminary objection partially joined to merits and dismissed (Article 35-3-b - No significant disadvantage);Remainder inadmissible;Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Constitutional proceedings;Article 6-1 - Access to court);Pecuniary damage - claim dismissed;Non-pecuniary damage - award
JUDGES: Alvina Gyulumyan;Corneliu Bîrsan;Egbert Myjer;Ján Šikuta;Josep Casadevall;Luis López Guerra;Nona Tsotsoria
TEXT: 5. The applicants are brothers. They were born in 1954 and 1956 and live in Neratovice (the Czech Republic) and Prešov (Slovakia) respectively.
6. The applicants’ father owned a piece of real estate located in the centre of the city of Prešov, which comprised a plot of land and buildings standing on it.
7. On their father’s death in 1964, the applicants each inherited half of that estate.
8. The estate was subsequently seized by a State-owned enterprise and some of the buildings were torn down and new ones built. The new buildings included a garage.
9. In the early 1990s the State-owned enterprise was privatised and transformed into a joint stock company.
10. In 1992 the applicants brought an action for removal of the garage and vacant possession of their land. This action and its outcome is the main subject matter of the present application. The details are given below.
11. In 2004 title to a portion of the real estate, which included the garage, was transferred from the joint-stock company to three individuals. Consequently, the action of 1992 was redirected against them.
12. In 2005 the applicants brought another action seeking a judicial ruling declaring them to be the owners of the plot on which the garage was situated and of an adjacent plot. The action was directed against the three beneficiaries of the transfer of 2004 (see previous paragraph).
13. On 27 September 2006, following a hearing held on the same day, at which the defendants acknowledged the applicants’ title, the Prešov District Court (Okresný súd) allowed the action of 2005.
14. On 15 November 2006, on the basis of the ruling of 27 September 2006, the applicants and the defendants settled their differences by exchanging title to the garage for title to the adjacent plot, under the judgment mentioned above, and by setting off their mutual financial claims, including those under the judgments mentioned below.
15. On 27 February 1992 the applicants lodged an action with the District Court seeking a judicial order for removal of the garage and vacant possession of their land.
16. The District Court ruled on the action on 13 December 1995 and 18 November 1997. These judgments were quashed on appeal (odvolanie) and the action was remitted by the Košice Regional Court (Krajský súd) on 16 April 1997 and the Prešov Regional Court on 22 November 1998 respectively.
17. On 30 September 2005 the District Court ruled on the action anew. It relied on the above-mentioned decision of the Prešov Regional Court of 22 November 1998 in acknowledging that the applicants were the owners of the land on which the garage stood and that the garage had been constructed on that land without the consent of its owners. The garage was therefore considered an “unlawful construction”. It was not practicable (účelné) to remove the garage or to have the applicants take over title to it. The situation had to be resolved under Article 135c § 3 of the Civil Code by establishing an easement for the benefit of the owners of the garage and by ordering that they pay the applicants compensation in an amount equivalent to some 3,050 euros (EUR). The amount of compensation was determined on the basis of an expert assessment with reference to existing prices as opposed to future prices.
18. On 11 April 2006 the Prešov Regional Court upheld the judgment of 30 September 2005 following appeals by both the applicants and the defendants. The Regional Court fully endorsed the reasoning provided by the District Court, referred to previous judicial practice and held that in matters such as that at hand the courts were not bound to follow the parties’ specific requests, but rather had to resolve the matter within the parameters set by statute.
19. On 6 June 2006 the applicants challenged the judgment of 11 April 2006 by way of an appeal on points of law (dovolanie). They relied on Article 237 (e) of the Code of Civil Procedure (“CCP”) and argued that the courts had wrongfully ruled on their action ultra petitum. In particular, the applicants argued that in litigious matters such as theirs the courts were bound by the plaintiffs’ formulation of the claims. The applicants had been seeking a ruling for removal of the garage or alternatively to have them established as the owners of the garage. However, the courts had made a ruling establishing an easement, which had not been sought. In addition, the applicants argued that the lower courts had failed to hear and examine all the evidence they had adduced.
20. On 25 January 2007 the Supreme Court (Najvyšší súd) declared the appeal on points of law inadmissible. It upheld the Regional Court’s view that when dealing with “unlawful constructions” the courts were not bound by the specific requests made by the parties to the proceedings. A specific request for the situation to be resolved by way of establishing an easement had therefore not been required. The applicants did not have a right as such to have all evidence they adduced examined and taken into account. The appeal was thus not admissible on the ground identified by the applicants and neither was it admissible on any other ground envisaged by law.
21. On 17 March 2005, following a complaint by the applicants under Article 127 of the Constitution, the Constitutional Court (Ústavný súd) found that the District Court had violated their right to a hearing within a reasonable time and ordered that the District Court proceed with the case without delay. It awarded each applicant the equivalent of some EUR 515 in just satisfaction in respect of non-pecuniary damage.
22. On 6 June 2006 the applicants lodged a new constitutional complaint. They contested delays in the proceedings subsequent to the Constitutional Court’s judgment of 17 March 2005 and challenged the judgments of the District Court of 30 September 2005 and the Prešov Regional Court of 11 April 2006 as having treated them unequally.
23. On 4 January 2007 the Constitutional Court declared the complaint inadmissible. It discerned no unjustified delays in the proceedings and rejected the relevant part of the application as manifestly ill-founded.
The Constitutional Court held that an appeal on points of law was a remedy that was available to the applicants, and observed that they had in fact used it (see paragraph 19 above). As it was still pending, that part of their constitutional complaint was premature.
24. On 19 April 2007 the applicants lodged a fresh constitutional complaint. They relied, inter alia, on Articles 6 § 1, 13 and 14 of the Convention and 1 of Protocol No. 1 and challenged the rulings of the Supreme Court of 25 January 2007 (see paragraph 20 above), the Prešov Regional Court of 11 April 2006 (see paragraph 18 above) and the District Court of 30 September 2005 (see paragraph 17 above) arguing that these rulings were incompatible with their property rights, of which they had failed to obtain protection.
25. On 24 May 2007 the Constitutional Court declared the complaint inadmissible. It found that the complaint had been lodged outside the statutory two-month time-limit in so far as it concerned the rulings of the Prešov Regional Court of 11 April 2006 and the District Court of 30 September 2005.
26. The complaint in respect of the decision of the Supreme Court of 25 January 2007 was manifestly ill-founded because that decision was not vitiated by any constitutionally relevant unlawfulness, arbitrariness or irregularity.
The written version of the Constitutional Court’s decision was served on the applicants’ lawyer on 25 January 2008.
27. The “right to judicial and other legal protection” is laid down in Section (Oddiel) Seven of Part (Hlava) Two, dealing with “basic rights and freedoms”. The relevant part of Article 46 provides as follows:
“1. Everyone shall be able to assert his or her rights in a procedure provided for by a statute before an independent and impartial court of law and, in cases defined by a statute, before another organ of the Slovak Republic...
4. Conditions and details of judicial and other legal protection shall be provided for by a statute.”
28. Article 127, subsumed under Section One (dealing with Judicial Power) of Part Seven (dealing with the Constitutional Court), provides:
“1. The Constitutional Court shall decide on complaints by natural or legal persons alleging a violation of their fundamental rights or freedoms ... unless the protection of such rights and freedoms falls within the jurisdiction of a different court.
2 If the Constitutional Court finds a complaint justified, it shall deliver a decision stating that a person’s rights or freedoms as set out in paragraph 1 have been violated by a final decision, specific measure or other act and shall quash that decision, measure or act. If the violation that has been found is the result of a failure to act, the Constitutional Court may order [the authority] which has violated the rights or freedoms to take the necessary action. At the same time it may remit the case to the authority concerned for further proceedings, order that authority to refrain from violating the fundamental rights and freedoms... or, where appropriate, order those who have violated the rights or freedoms set out in paragraph 1 to restore the situation to that existing prior to the violation.
3. In its decision on a complaint the Constitutional Court may grant appropriate financial compensation to the person whose rights under paragraph 1 have been violated.”
29. Under section 53(1), a complaint under Article 127 of the Constitution is admissible only where the complainant has used effective remedies provided for by the law to protect his or her fundamental rights. A complaint to the Constitutional Court can be lodged within two months of a decision finally taking effect or from the date of a contested measure or notification of another interference with a person’s rights (section 53(2)).
30. The settlement of matters related to “unlawful constructions” is regulated by Article 135c, which provides that – if a construction is erected on a surface belonging to someone else, the removal of the construction at the expense of its owner may be ordered by a court upon application for this remedy by the owner of the surface (paragraph 1).
If however the removal of the construction does not prove practicable, and subject to consent by the owner of the surface, the court establishes the owner of the surface to be the owner of the construction, in return for the payment of compensation (paragraph 2).
The court also has the power to settle the relations between the owner of the surface and the owner of the construction differently, in particular by establishing an easement to enable the exercise of the ownership right in respect of the construction.
31. The relevant provisions concerning appeals on points of law are laid down in Articles 236 et seq. They are summarised, for example, in the Court’s judgment in the case of Ringier Axel Springer Slovakia v. Slovakia (no. 41262/05, §§ 61-68, 26 July 2011).
32. In case no. III. ÚS 114/2010 the complainant alleged a violation of his procedural rights and property rights by virtue of judicial decisions at first instance and on appeal. In parallel to his constitutional complaint he lodged an appeal on points of law relying on Article 237 (f) of the CCP.
33. On 23 March 2010 the Constitutional Court declared the complaint inadmissible. It found that since the complainant had asserted his rights by way of an appeal on points of law, and since that appeal was still pending, the principle of subsidiarity enshrined in Article 127 § 1 of the Constitution and section 53(1) of the Constitutional Court Act precluded a parallel examination of the same subject matter by the Constitutional Court.
34. At the same time, however, the Constitutional Court made a pronouncement concerning the application of the statutory two-month time-limit for lodging a fresh constitutional complaint in the eventuality of a rejection of the complainant’s appeal by the Supreme Court. In that respect, “bearing in mind the purpose of the fundamental right to judicial protection under Article 46 § 1 of the Constitution”, and making a specific reference to the Court’s judgment in the case of Zvolský and Zvolská v. the Czech Republic (no. 46129/99, §§ 51, 53 and 54, ECHR 2002IX), the Constitutional Court held that, in addition to the decision of the court of cassation, the time-limit would be considered as having been respected also in respect of the previous decision of the court of appeal.
35. This line of reasoning was upheld by the Constitutional Court in its decision of 27 September 2011 in case no. III. ÚS 407/2011, with reference to the principle of “substantive protection of constitutionality”.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-95871
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: CHAMBER
DATE: 2009
DOCNAME: CASE OF ZAYTSEVA v. RUSSIA
IMPORTANCE: 4
CONCLUSION: Violation of Article 6 - Right to a fair trial
JUDGES: Anatoly Kovler;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;Khanlar Hajiyev;Sverre Erik Jebens
TEXT: 5. The applicant was born in 1939 and lives in Arkhangelsk.
6. In 1975 the applicant was injured in a work-related accident. In 2004 she sued the Arkhangelsk Regional Health Department for disability benefits alleging that her current disability had resulted from that incident.
7. On 15 December 2004 the Oktyabrskiy District Court of Arkhangelsk rejected the applicant's claims. The District Court examined, among other evidence, a decision by the Medical and Labour Expert Examination Service of the Arkhangelsk Region, which indicated that the applicant's disability had been caused by the injury she sustained in 1975.
8. The applicant lodged an appeal with the Arkhangelsk Regional Court. The appeal hearing was scheduled for 17 January 2005. According to the Government, the District Court dispatched summonses to the parties, including the applicant and her representative, informing them of the date and time of the appeal hearing. According to the applicant, she did not receive the summons.
9. On 17 January 2005 the Arkhangelsk Regional Court examined the appeal and rejected it. The applicant and the representative of the Health Department were absent but the prosecutor intervened in the proceedings on behalf of the Health Department and addressed the court. The Regional Court did not examine the question whether the applicant or her representative had been duly summonsed and, if they had not, whether the examination of the appeal should have been adjourned.
10. The Code of Civil Procedure (in force as of 1 February 2003) provides that parties to the proceedings are to be summonsed to a court by registered mail with a confirmation of receipt, by a phone call or a telegram, by fax or by any other means which will secure delivery of the summons to the addressee. Summonses must be served on the parties in such a way that they have enough time to prepare their case and appear at the hearing (Article 113).
11. Summonses are to be sent by mail or by a court courier. The time when a summons is served on the addressee is to be recorded on a document which must be returned to the court by courier or by any other method used by the postal service. A judge may request a party to the proceedings to transmit a summons to another party. In that case, that person should bring to the court an acknowledgment of receipt (Article 115).
12. A summons is to be served on a person against his or her signature, on its copy, which is to be returned to the court (Article 116).
13. A civil case is to be heard in a court session with mandatory notification of all parties of the place and time of the court session (Article 155).
14. If a party to the case fails to appear at the hearing and there is no evidence that the party has been duly summonsed, the hearing is to be adjourned (Article 167).
VIOLATED_ARTICLES: 6


ITEMID: 001-72549
LANGUAGEISOCODE: ENG
RESPONDENT: BGR
BRANCH: CHAMBER
DATE: 2006
DOCNAME: CASE OF OGNYANOVA AND CHOBAN v. BULGARIA
IMPORTANCE: 3
CONCLUSION: Violations of Art. 2;Violation of Art. 3;Violation of Art. 5-1;Violation of Art. 13;No violation of Art. 14;Non-pecuniary damage - financial awards;Costs and expenses partial award - Convention proceedings
JUDGES: Christos Rozakis
TEXT: 8. At approximately 2 a.m. on 6 June 1993 Mr Stefanov died after having fallen the previous day from the window of room 36 on the third floor of the police station in the town of Kazanluk. Numerous injuries were found on his body. The ensuing investigation concluded that he had voluntarily jumped out of the window of the room where he had been brought for questioning, and that all his injuries had been the result of his fall. The applicants contested these conclusions.
9. At an unknown time on 4 June 1993 Mr Stefanov, then aged twentythree, was arrested by the police in the town of Muglizh. Another person, Mr D.O., also of Roma ethnic origin, was likewise taken into custody. According to a subsequent statement of Mr D.O., he had turned himself in, whereas according to a statement of lieutenant I.C., a police officer involved in these events (see paragraph 10 below), he had been arrested. Apparently Mr Stefanov and Mr D.O. were suspected of numerous thefts and burglaries committed in complicity. The two were brought to the Kazanluk police station either later that evening or the next morning. The applicants submitted that Mr Stefanov had been in good health at the time of his arrest. The Government did not contest this assertion.
10. The events of the next morning, as described hereafter, are only known from the statements of lieutenant I.C. and chief sergeant H.B., the two police officers who participated in the events, of Mr D.O., and partly from the statement of chief sergeant B.B., an officer guarding the cell block of the police station. Apparently the only eyewitnesses to what happened in room 36, from whose window Mr Stefanov fell to the ground, were lieutenant I.C., chief sergeant H.B. and Mr D.O.
11. Lieutenant I.C. arrived at the Kazanluk police station at approximately 10 a.m. on 5 June 1993 and first proceeded to question Mr D.O. about the thefts and burglaries allegedly committed by him and Mr Stefanov.
12. The questioning took place in lieutenant I.C.’s office – room 36 on the third floor of the police station – an eastfacing room measuring 5 by 2.8 m.. It had two twowing windows, overlooking the backyard, with sills 96 cm above the floor. It seems that the south window was opened. In the middle of the room there were two desks, adjacent to each other.
13. In the back yard, beneath the room’s windows, 70 cm south of the one which was open, there was a shed for motorcycles, with a 1.95 meter high ceiling, covered with an iron sheet roof. Beside the shed there was an inspection tunnel for automobiles, leading to an underground garage. The inspection tunnel had a concrete edge. The room’s windows stood at 9.6 m above the ground, the distance between the windows and the concrete edge was 7.9 m, and that between the windows and the iron sheet roof – 5.9 m.
14. After questioning Mr D.O., lieutenant I.C. sent him back to the cell block on the first floor, and brought Mr Stefanov up for questioning. During the questioning Mr Stefanov was seated in a chair behind the south desk in room 36. Lieutenant I.C. was sitting opposite him, behind the north desk. Throughout the questioning Mr Stefanov was handcuffed. It is not clear whether his hands were secured behind his back or in front of him.
15. According to the statements made later by lieutenant I.C., sergeant H.B. and Mr D.O., during the questioning the lieutenant established discrepancies between the versions of Mr Stefanov and Mr D.O about their participation in the alleged thefts. At that point, at approximately 11 a.m., the lieutenant called sergeant H.B. and ordered him to bring Mr D.O. up from the cell block in order to be able to confront the two. Sergeant H.B. took Mr D.O. and brought him in front of room 36. Sergeant H.B. and Mr D.O. stood a little south of the room’s door, so that Mr D.O. and Mr Stefanov could not establish eye contact. Lieutenant I.C. started questioning Mr Stefanov and Mr D.O., to compare their answers. Apparently their versions differed and an argument erupted between the two, as they were accusing each other of being the mastermind of the alleged thefts.
16. Then Mr D.O. indicated with his head to lieutenant I.C. that he wanted to tell him something without Mr Stefanov hearing it. The lieutenant stood up from his chair, approached the halfopen door and stood at the doorsill. At that moment Mr Stefanov, still handcuffed, bolted from his chair, made towards the open window and climbed on the window sill by stepping on a chair placed under the window. Chief sergeant H.B. shouted: “This one is going to run”. Lieutenant I.C. turned around and saw Mr Stefanov in the window frame, one leg out in the air and the other leg inside the room. The lieutenant shouted: “Don’t jump!”, but Mr Stefanov threw his other leg out of the window and jumped. The lieutenant rushed towards the window.
17. There are inconsistencies in the lieutenant’s statements as to whether he saw Mr Stefanov falling, or only saw him after he had already hit the ground. In his report dated 11 June 1993 the lieutenant stated that he had only seen Mr Stefanov’s body supine on the ground. However, when questioned about the incident on 20 June 1994, the lieutenant maintained that when he had rushed to the window, he had been able to see Mr Stefanov’s fall, and had seen his body hit the iron sheet roof of the shed beneath the window before rolling off and onto the ground. When questioned for a second time on 21 July 1997, the lieutenant stated that he could not recall exactly the phases of Mr Stefanov’s fall and could not tell whether Mr Stefanov had first hit the roof of the motorcycle shed, as he did not remember whether he had gone to the window immediately. He explained that his memories had faded because the events had taken place a long time before and had unfolded very quickly (see paragraphs 34, 36 and 56 below).
18. There are also inconsistencies in Mr D.O.’s statements as to whether he saw Mr Stefanov’s fall at all. When first questioned about the incident on 8 June 1993, he stated that he had not directly seen Mr Stefanov jump. During his second questioning on 13 December 1993 Mr D.O. maintained that he had seen Mr Stefanov standing up with his handcuffs on, moving towards the window and jumping. However, he did not state that he had seen Mr Stefanov’s fall, but had only seen him supine on the ground.
19. Chief sergeant H.B. rushed down the stairs to the back yard, where he found Mr Stefanov lying unconscious, half on his back, half on his right side, on an iron grill in front of the garage. His handcuffs had broken, he was bleeding and breathing heavily. Chief sergeant H.B. poured water on him to try to revive him. An ambulance was called shortly afterwards and Mr Stefanov was taken to the regional hospital in Kazanluk, where he died at approximately 2 a.m. the following morning (see paragraph 26 below).
20. Having been notified about the incident at 12.10 p.m., investigator G.S. of the District Investigation Service in Kazanluk inspected the scene of the incident. Starting at 1.15 p.m., he first inspected the back yard of the police station, where Mr Stefanov had fallen to the ground, and then room 36. The minutes of the inspection state that the site of the incident had “not been preserved – the injured person having been removed”. The minutes describe the ground beneath the windows of room 36 as covered partly with an iron grill, the remainder being a concrete surface. Two bloodstains are noted: one on the iron grill, and one under it. The bloodstain under the grill measured 5 to 6 cm. During the inspection of room 36 a chair was found just beside the window and a piece of plaster 5 cm long was found under the window frame.
21. The same day, while Mr Stefanov was still alive but in a coma, colonel P., prosecutor at the Plovdiv Military Regional Prosecutor’s Office, ordered that he be examined by Dr E.B., medical doctor at the forensic medicine ward of the Stara Zagora regional hospital.
22. At 7 p.m. on 5 June 1993 Dr E.B. examined Mr Stefanov in the presence of Dr K., a neurosurgeon from the Kazanluk regional hospital. He found that Mr Stefanov was in a coma and could not communicate. He recorded that the “onduty police officer” had told him that Mr Stefanov had jumped from the window of a room on the third floor of the police station, that he had fallen on an iron sheet roof, and then on the ground in front of the underground garage of the station, on an iron grill.
23. He noted the following injuries on Mr Stefanov’s body:
“The lids of the right eye are suffused and are bluish-violet in colour. An abrasion with underlying surface, measuring 6 by 6 cm, was found in the area of the right cheekbone. An arch-shaped wound with uneven and suffused edges 2 cm long, was found on the outer edge of the right eye. Two slit-shaped parallel violet suffusions, 1 cm wide and 8 cm long, are visible on the back of the right shoulder. The distance between them is 3.5 cm. At the middle of the thorax one can observe a slanted elongated violet suffusion, measuring 4 by 1 cm. A similar suffusion, measuring 3 to 2 cm, was found on the left buttock. The right upper limb is immobilised with a plaster dressing. Three oval abrasions with underlying surface, the biggest measuring 1 by 1 cm, were found on the lateral side of the right knee. The skin on the lateral side of the right sole is suffused and bluish-violet in colour. A spotted suffusion, measuring 8 by 3 cm, was found on the inner side of the left sole. An underlying abrasion, measuring 6 to 4 cm, is visible on the lateral side of the right calf. A superficial slit-shaped wound with uneven edges and length 3 cm was found on the left parietal-temporal area.”
24. Dr E.B. concluded that the injuries described could have been sustained in a twostage fall.
25. The laboratory tests detected no traces of alcohol in Mr Stefanov’s blood or urine.
26. Mr Stefanov died at approximately 2 a.m. the following morning.
27. On the following day, 6 June 1993, Dr E.B. performed an autopsy on Mr Stefanov’s dead body. The doctor described his findings in detail in his report. He noted the following:
“EXTERNAL INSPECTION[:]
... The eyelids are closed. The lids of the right eye are suffused and bluish-violet in colour. An arch-shaped wound with uneven and suffused edges, 2 cm long, is visible in the outer eye angle of the right eye, on the orbital edge. An abraded spot at the level of the skin, covered with reddish scab, 6 by 6 cm, is visible in the area of the right cheekbone. ... A slit-shaped wound with uneven and suffused edges, 3 cm long, is visible in the parietal-occipital-temporal area. Small tissue bridges are visible at the bottom of the wound. ... An oblique bluish suffusion, measuring 4 by 2 cm, is visible on the frontal part [of the thorax], in the middle part, in the projection of the sternum. Two strip-shaped bluish-violet blood suffusions, parallel to one another, measuring 8 by 2 cm, at a distance of 3.5 cm between them, are visible on the back surface of the right shoulder. ... A bluish-violet suffusion, measuring 4 by 3 cm, was found on the left buttock. ... The right armpit bone is broken in the middle third with suffusions in the musculature. A wound with an irregular shape and even edges, measuring 3 by 2 cm, is visible in this area, on the lateral surface. The bone fragments are at its bottom. Two strip-shaped grazed areas covered with whitish scab at the level of the skin, each measuring 40 by 3 mm, and a distance between them of 5 mm, were found in the area of the right wrist. Three abraded areas covered with reddish scab at the level of the skin, the biggest one measuring 1 cm in diameter, were found on the lateral side of the right knee. A similar grazed area, measuring 4 by 6 cm, was found on the lateral surface of the right calf. The skin on the lateral part of the right sole is suffused and bluish. A similar suffusion, measuring 8 by 3 cm, was found on the internal surface of the left sole.
Deep skin incisions were made on the back of the corpse, and thereupon suffusions of the soft tissues and the musculature of the right part of the back, in the area of the right shoulder-blade, measuring 18 by 8 cm, vertically oriented, were found. ... A suffusion of the tissues was found in the musculature and the subcutaneous layer of the left buttock, in the projection of the above-described suffusion.
INTERNAL INSPECTION[:] Head. The soft cranial membranes have suffusions on the right frontal-temporal area, on the left parietal-occipital-temporal area, below the above described lacerated-contusion wound. ... A linear fracture was found at the base of the skull, beginning from the right frontal-temporal area, passing on the roof of the right orbit, and ending in the area of the sella turcica. ... The soft meninges are suffused in the temporal parts. ... Rounded violet suffusions, with diameter of not more than 2 mm, were found at the base of the brain, in the area of the right frontal parts.
... The first, seventh, and eighth ribs on the right side are broken on the posterior sub-arm line with a suffusion in the intercostal musculature. The fractures are wide open inward.”
28. In the concluding part of the report Dr E.B. summarised the injuries on Mr Stefanov’s body as follows:
“Combined cranial-cerebral and thoracic trauma following a fall from a substantial height. Fracture of the base of the skull. Cerebral contusion, cerebral oedema, with wedging of the cerebellar tonsils. Suffusion of the meninges. Fracture of ribs on the right side. Lacerated-contusion wounds on the head and the face. Suffusions of the cranial membranes, the face, the thorax, and the limbs. Abrasions on the face and the limbs. Open fracture of the right armpit bone. Suffusion of the buttocks. Lack of alcohol in the blood and the urine.”
29. Dr E.B. concluded that the death had been caused by a cranialcerebral trauma, consisting of a fracture of the skull, a contusion and a brain oedema.
30. Addressing the question of the manner in which the injuries had been caused, Dr E.B. stated:
“The described traumatic injuries were caused by the impact of the body against solid blunt objects and could be sustained in a two-stage fall from a substantial height. The inspection and the autopsy revealed head and body traumatic injuries: head – on the right frontal-temporal area [and] on the left parietal-occipital-temporal area; body – front and back, more pronounced on the right side; limbs – right upper limb, lateral surface of the right leg and internal surface of the left sole. The fall on the roof of the shed produced the injuries on the right side of the forehead and the face and the front of the body. The second stage of the fall – from the roof of the shed to the ground in front of the underground garage – resulted in the injuries on the back of the body, the left parietal-occipital-temporal area of the head and lower limbs. The two chafings of the right wrist suggest sustained contact with handcuffs. The right armpit bone was broken during the first stage of the fall if the hands were handcuffed in front, and during the second stage if the hands were handcuffed on the back.”
31. Dr E.B. finished his autopsy report with the following findings:
“All traumatic injuries were sustained while [Mr Stefanov was alive], is indicated by from the suffusions in the areas of the broken bones. These injuries were sustained at the same time and it is possible that they occurred at the time stated in the preliminary data.
The inspection of the body and the autopsy did not reveal traumatic injuries which cannot be explained by a fall from a substantial height.
At the time of his death [Mr] Stefanov was not under the influence of alcohol, but the expertise cannot confirm the same for the moment of the fall, because the alcohol test sample was taken more than twelve hours after the incident.”
32. On 8 June 1993 Mr D.O. was questioned about the incident. He stated, inter alia, that he had not directly seen Mr Stefanov jump.
33. An investigation was opened on 17 June 1993 by the Plovdiv Military Regional Prosecutor’s Office.
34. The military investigator in charge of the case, Mr S.S., collected the written reports of lieutenant I.C., chief sergeant H.B. and sergeant B.B., but did not question the officers. He started working on the case on 13 December 1993, when he questioned Mr D.O. The latter stated, inter alia, that he had not been mistreated and that Mr Stefanov body did not indicate any bodily assault at the time of his questioning in the morning of 5 June 1993. He also maintained that he had seen Mr Stefanov standing up with his handcuffs on, moving towards the window and jumping. However, he did not state that he had seen Mr Stefanov’s fall, but had only seen him lying on the ground.
35. On 8 February 1994 the Plovdiv Military Regional Prosecutor’s Office transferred the case to the competent district prosecutor’s office, in view of the amendments to the Code of Criminal Procedure (“the CCP”) of December 1993 whereby offences allegedly committed by police officers came under the jurisdiction of the general courts (see paragraph 71 below). However, on 5 April 1994 the case was sent back to the Plovdiv Military Regional Prosecutor’s Office pursuant to special instructions by the Chief Prosecutor’s Office of 16 February 1994. On 20 April 1994 the Plovdiv Military Regional Prosecutor’s Office remitted the case file to captain I.N., a military investigator in Stara Zagora, for further action.
36. Lieutenant I.C. was questioned on 20 June 1994 by the military investigator, captain I.N. He stated, inter alia, that when he had rushed to the window, he had been able to see Mr Stefanov’s fall and had seen his body hit the iron sheet roof of the shed situated beneath the window before hitting the ground (see paragraph 17 above).
37. On 30 June 1994 investigator I.N. recommended that the investigation be discontinued, citing the lack of evidence for a criminal offence. He found that the medical expert report had established that all of Mr Stefanov’s injuries had been sustained during his twostage fall from the window. This finding coincided with lieutenant I.C.’s statement that he had seen Mr Stefanov’s body first hit the roof of the shed beneath the window and then fall on the ground in front of the underground garage. The investigator concluded that Mr Stefanov had jumped out of the window of his own will, and that this had not been provoked by the conduct of lieutenant I.C. or another police officer.
38. On 29 July 1994 colonel Y.T., prosecutor at the Plovdiv Military Regional Prosecutor’s Office, discontinued the proceedings and sent the case file to the Kazanluk District Prosecutor’s Office for further action. He reasoned that Mr Stefanov had suddenly jumped from the window of room 36 during questioning, in the presence of lieutenant I.C. and Mr D.O. He had fallen on the ground and had immediately been taken to a hospital, where he had died despite the efforts to revive him. As could been seen from the medical expert report, the Mr Stefanov’s death had been caused by a combined cranial-cerebral and thoracic trauma, a fracture of the base of the skull, a cerebral contusion, a suffusion of the meninges, lacerated-contusion wounds on the head and the face, and suffusions of the limbs. There was no indication that lieutenant I.C. had contributed in any way to Mr Stefanov’s death.
39. On 4 August 1994 the Kazanluk District Prosecutor’s Office sent the case back to the Plovdiv Military Regional Prosecutor’s Office, stating that there was nothing for them to do since the proceedings were discontinued.
40. During the following year the case file was shuttled between various prosecutor’s offices. On 4 October 1994 the first applicant, who was apparently unaware of the latest developments, complained to the Chief Prosecutor’s Office about the delay in the investigation and stated that she had not been informed of the investigation findings.
41. In view of the amendments to the CCP of June 1995 whereby the military courts, investigators and prosecutors were restored jurisdiction over offences allegedly committed by police officers (see paragraph 71 below), on 3 August 1995 the Military Prosecutor’s Office in Sofia sent the case for review by the Plovdiv Military Regional Prosecutor’s Office with instructions to communicate its ruling to Mr Stefanov’s heirs.
42. In a decision of 27 December 1995 colonel Y.T., prosecutor at the Plovdiv Military Regional Prosecutor’s Office, once again discontinued the investigation for lack of evidence of a criminal offence. He reasoned, without much detail, that Mr Stefanov had jumped from the open window. He had been immediately transported to a hospital, where he had died because of a cranialcerebral trauma. It had not been established that lieutenant I.C. or another police officer had abused his office, had brought about Mr Stefanov’s suicide, or had failed to discharge his or her duties. It appears that a copy of the decision was sent to Mr Stefanov’s father.
43. Apparently the applicants were not informed about these developments, although they had requested to be kept abreast of the progress of the investigation on several occasions.
44. A copy of the prosecutor’s decision was obtained by the applicants’ lawyer on 12 November 1996. On 9 December 1996 he filed an appeal against it with the Military Prosecutor’s Office in Sofia, arguing that the investigation was not comprehensive, that a number of investigative steps had not been undertaken and that various facts had not been clarified.
45. In a decision of 9 January 1997 prosecutor V.P. of the investigative department of the Military Prosecutor’s Office in Sofia found that the investigation had not been full and comprehensive. It had not been established at what time on 4 June 1993 Mr Stefanov had been arrested, who had ordered that he remain in detention after the end of the workday, or whether there had been an order for his police detention for a period of twentyfour hours. If such an order existed, it was not clear who had issued it and on what legal grounds. The legality of the police officers’ actions had to be assessed also from the point of view of Article 127 of the Criminal Code (“the CC”) (see paragraph 66 below). Another fact which had not been clarified were the circumstances of Mr Stefanov’s detention leading up to the incident on 5 June 1993. Also, it was unclear how many objects Mr Stefanov’s body had hit during the fall and what was the number of impacts. No inspection had been carried out of the roof of the motorcycle shed. It was apparent from the photographs that it was not deformed although the doctor’s report had stated that on his way down Mr Stefanov had first hit the roof and only then the iron grill on the ground. The doctor’s report had also stated that the body had sustained two blows during the fall and that all injuries could have been caused by two consecutive blows. Finally, not all persons who could have clarified the facts had been questioned, including chief sergeant H.B., chief sergeant B.B., and others who had been in the back yard and the garage of the police station and might have witnessed the fall.
46. Accordingly, the prosecutor quashed the decision to discontinue the investigation and ordered to:
(i) gather all documents in the Kazanluk police station relating to Mr Stefanov’s arrest and detention on 4 June 1993;
(ii) inspect the site of the incident with a view to establishing the exact material of which the metal sheet roof was made and whether there were any deformations on it; also, establish what the distance between the window and the ground was and whether the bloodstain found on the iron grill was situated directly beneath the window;
(iii) perform a dummy test to determine the exact spot where Mr Stefanov’s body had hit the ground;
(iv) question other possible witnesses; also, take new statements from Mr D.O. about the circumstances of his and Mr Stefanov’s detention and stay in the police station, the possible use of physical violence against them, as well as all other circumstances possibly relevant to the case;
(v) prepare a three-expert forensic report to establish the cause of death and whether there were injuries on Mr Stefanov’s body which had not been caused by the fall form the window.
47. Following the remittal of the case, on 8 March 1997 an investigator inspected the iron sheet roof of the motorcycle penthouse situated beneath room 36, and performed a dummy test.
48. During the inspection it was found that the iron sheet roof had no marks of bending or deformation.
49. A humansize leather dummy was thrown twice out of the window of room 36. The first time the dummy was dropped perpendicularly and fell directly on the ground in front of the garage, without touching the iron sheet roof of the penthouse. The second time it was thrown at an angle south of the window and hit the iron sheet roof, then the concrete edge beneath the roof, and then fell on the ground. When the dummy hit the iron sheet roof during the second throwing, the roof gave.
50. On 25 March 1997 investigator S.S. questioned chief sergeant H.B. who stated, inter alia, that he had not seen Mr Stefanov’s fall in its entirety, and had no recollection of how many hits he had heard during the fall.
51. On 26 March 1997 investigator S.S. questioned chief sergeant B.B.
52. Following the dummy test, three medical experts were appointed to reexamine the conclusions about the circumstances in which Mr Stefanov’s injuries had been sustained. More specifically, they were requested to establish what was the cause of Mr Stefanov’s death and whether some of the injuries found on his body could have been the result of factors other than the fall from the window of room 36. Dr E.B., the medical doctor who had examined Mr Stefanov on 5 June 1993 and had performed an autopsy on his dead body, was one of the experts. The others were Dr H.E. and Dr T.T., medical doctors from the forensic medicine and ethics faculty of the university of Stara Zagora.
53. On 18 April 1997 the three experts delivered their report based solely on documents contained in the investigation case file.
54. The experts confirmed the previous findings about the cause of death, namely that it was the result of a cranial and brain trauma, consisting of a fracture of the base of the skull, contusion and oedema of the brain, with a wedging of the cerebellum and paralysis of the vital brain centres. Although insubstantial, the amount of blood that had entered the respiratory system, also contributed to the fatal outcome, the experts opined.
55. As to the cause of the injuries, the experts concluded that:
“such injuries may be sustained in a fall that involves multiple blunt impacts. Such a fall [occurs] the body hits several hard surfaces at different heights, as indicated by the dummy test. Such information was gathered during the dummy test. When thrown at a right angle, the dummy hit the iron sheet roof situated under the window adjacent to the one from which [Mr] Stefanov fell. ...It is possible that [Mr] Stefanov ran tangentially against the edge of the iron sheet roof and that his body rolled off leaving no indentations on the roof. It [was] also possible that [Mr] Stefanov, regardless of whether his body came in contact with the iron sheet roof, hit the concrete edge on which the roof was built. This edge is visible on the photographs and is situated at approximately 23 cm from the wall of the shed. The final stage of the fall was hitting the ground in front of the garage, where the grill is located. It [was] possible that the suffusions on the back surface of the right shoulder could have resulted from an impact against the grill. The lacerated-contusion wound on the head, in case it was turned left, as well as the fracture of the right armpit and the suffusion on the buttocks, occurred during this final stage of the fall. The other injuries were caused earlier during the fall. The two abrasions on the right wrist are consistent with handcuff marks.
The hit which caused the cranial fracture and the brain contusion [was] sustained in the right frontal part of the head, where the laceratedcontusion wound, the abrasion and the suffusion [were] detected. This was a heavy impact that occurred during an earlier stage of the fall, most probably against the abovementioned concrete edge.
All injuries were sustained at the same time. No injuries were found which cannot be explained with a fall from a substantial height and one that involved multiple hard impacts. [There were no injuries] from sharp weapons, firearms, or electricity. No defensive injuries were found on the body or the limbs.
56. On 21 June 1997 lieutenant I.C. was questioned by captain S.S., the military investigator who was initially in charge of the investigation. The applicants’ lawyer was also present. The lieutenant stated that he could not recall exactly the mechanism of Mr Stefanov’s fall and could not tell whether Mr Stefanov had first hit the roof of the motorcycle shed, as he did not remember whether he had gone to the window immediately. He explained that his memory of the events had faded because they had taken place a long time before and had unfolded very quickly.
57. Mr D.O. was not requestioned. The Kazanluk police tried to locate him but found that his whereabouts after 1993 – when he was released and apparently not prosecuted any further for the alleged thefts – were unknown. There were some indications that he was living on the territory of the Troyan municipality, in one of the mountain villages there, but his exact address was unknown, as he had not communicated it to the address register of his previous domicile, the municipality of Muglizh. His mother’s whereabouts were also unknown, his grandfather and uncle had died, and there were no other relatives in Muglizh who could provide information about him. The applicants’ lawyer requested that the investigation remain pending until Mr D.O. was located and questioned.
58. Also, no documents were gathered about Mr Stefanov’s arrest and detention on 4 and 5 June 1993. In a letter of 20 July 1997 the head of the Kazanluk police station informed the investigation authorities that up until August 1993 the persons detained for less than twentyfour hours had simply been registered and no orders for their arrest had been issued, and that the registers for 1993 had not been preserved.
59. On 29 July 1997 investigator S.S. recommended that the investigation be discontinued. He stated that the instructions of the Military Prosecutor’s Office had been complied with in the course of the additional investigation. The register of the detained persons in the Kazanluk police station was no longer available, nor were the police fill-in forms for detention. It was therefore impossible to establish who had brought Mr Stefanov to the police station. Also, an additional inspection of the death scene had been carried out, revealing that Mr Stefanov’s body had not hit the iron sheet roof, which was not deformed, but the edge beneath it, and then the ground. This was apparent from the medical expert report. Certain witnesses had been re-questioned. The re-questioning of Mr D.O. had been impossible, as he could not be tracked down. As indicated by the medical expert report, Mr Stefanov’s death had been caused by a cranialcerebral trauma, consisting of a fracture of the skull base, contusion and oedema of the brain with a wedging of the cerebellum and a paralysis of the vital brain centres. Such injuries could be the result of a twostage fall, when the body had encountered obstacles at various heights before hitting the ground. No injuries which could not be explained with such a fall had been found, nor injuries resulting from sharp weapons, firearms, or electricity. There was thus no evidence of a criminal offence by a member of the Kazanluk police.
60. In a decision of 13 August 1997 captain I.N., prosecutor at the Plovdiv Military Regional Prosecutor’s Office, discontinued the investigation. He reasoned that all instructions contained in the decision of 9 January 1997 of the Military Prosecutor’s Office in Sofia had been complied with. The dummy test, the additional medical expert report and the newly questioned witnesses had all confirmed the circumstances underlying the first discontinuation of the investigation. There were no injuries on Mr Stefanov’s body which could not be explained by a twostage fall from a substantial height. The dummy test had determined that Mr Stefanov had first hit the concrete edge under the iron sheet roof and had then fallen on the ground. A copy of the decision was sent to the first applicant with instructions that she could appeal against it.
61. On 3 and 12 February 1998 the applicants’ lawyer requested information about the progress of the investigation. He was informed that it had been discontinued, but was not given a copy of the decision of 13 August 1997. He managed to obtain a copy only on 4 March 1998, and immediately appealed it before the Military Prosecutor’s Office in Sofia. He argued that Mr D.O. had not been questioned and that the conclusions about the details of Mr Stefanov’s fall from the window were inconsistent.
62. On 31 March 1998 colonel T.Y., prosecutor at the Military Prosecutor’s Office in Sofia, dismissed the appeal, reasoning, inter alia, that Mr Stefanov had jumped in an attempt to leave the premises of the police, that no officers were responsible for this act, and that the investigation had been objective and comprehensive.
63. The applicants’ lawyer then filed an appeal with the Chief Prosecutor.
64. On 18 May 1998 prosecutor V.P., head of the investigative department of the Military Prosecutor’s Office in Sofia, to whom the appeal was apparently referred, upheld the decision to discontinue the investigation. He reasoned that there were no indications that Mr Stefanov’s “attempt to flee” had been prompted by maltreatment by the police officers who had questioned him. According to the medical expert report, all his injuries had been caused by the fall. There was no indication that any offence had been committed by a police officer, that could be connected with Mr Stefanov’s death. A copy of his decision was sent to the applicants’ lawyer on 9 June 1998.
65. By Article 115 of the CC, murder is punishable by ten to twenty years’ imprisonment. Article 116 § 1 (2) of the CC provides that if a murder is committed by a police officer in the course of, or in connection with the performance of his or her duties, it is punishable by fifteen to twenty years’ imprisonment, or life, with or without parole.
66. Article 127 § 1 of the CC makes it an offence to aid or incite suicide, if the person concerned does subsequently commit suicide or makes an attempt to do so. By paragraph 3 of that Article, it is an offence to drive another to suicide or attempted suicide through cruel treatment or systematic humiliation, if this other person is financially or otherwise dependent on the offender, on condition that the offender contemplated that eventuality. Paragraph 4 of that Article makes it an offence to act contrary to the previous paragraph even if the offender does so out of negligence.
67. Articles 128, 129 and 130 of the CC make it an offence to inflict a light, intermediate or severe bodily injury on another. Article 131 § 1 (2) of the CC provides that if the injury is inflicted by a police officer in the course of or in connection with the performance of his or her duties, the offence is aggravated.
68. By Article 287 of the CC, as in force at the material time, it was an offence for an official, when acting in the course of, or in connection with the performance of his or her duties, to illegally coerce an accused, a witness or an expert with a view to obtaining a confession, a statement or an opinion.
69. All of the above offences are publicly prosecutable (Article 161 of the CC and Article 21 § 3 of the CCP, as in force at the material time).
70. Article 192 §§ 1 and 2 of the CCP, as in force at the material time, provided that proceedings concerning publicly prosecutable offences could only be initiated by a prosecutor or an investigator. The prosecutor or the investigator had to open an investigation whenever he or she received information, supported by sufficient evidence, that an offence might have been committed (Articles 187 and 190 of the CCP). If the information given to the prosecuting authorities was not supported by evidence, the prosecutor had to order a preliminary inquiry in order to determine whether the opening of a criminal investigation was warranted (Article 191 of the CCP, as in force at the material time). A prosecutor could discontinue an investigation when, inter alia, there was no evidence of an offence, or the alleged act did not constitute an offence (Articles 21 § 1 (1) and 237 § 1 (1) and (2) of the CCP). At the material time his or her decision was subject to appeal to a higher prosecutor (Article 181 of the CCP, as in force at the relevant time). In 2001 the CCP was amended to provide for judicial review of a prosecutor’s decision to discontinue an investigation.
71. At the material time the offences allegedly committed by police officers were tried by military courts (Article 388 § 1 (2) of the CCP, as in force at the relevant time). In December 1993 this text was amended to provide that the military courts no longer had jurisdiction over such offences (Article 388 § 1 (2) of the CCP, as amended in December 1993). A new amendment in June 1995 reverted to the old regime (Article 388 § 1 (2) of the CCP, as amended in June 1995 and in force until 1 January 2000). Where a case would fall within the jurisdiction of the military courts, the preliminary investigation is handled by military investigators and prosecutors.
72. A person may be arrested and placed in detention in the context of pending criminal proceedings, if charges have been brought against him or her (Article 146 § 1 taken in conjunction with Article 207 of the CCP).
73. A person could also be arrested by order of an investigator and detained for up to three days if he or she was suspected of having committed an offence punishable by imprisonment, but there was not enough evidence to bring charges. The circumstances in which this could occur were limited and included the cases where (i) he or she had been caught during or immediately after the commission of the alleged offence, (ii) he or she had been named by an eyewitness, (iii) overt traces of the alleged offence were found on the person’s body or clothes or in his or her place of abode, or (iv) the person tried to flee or his or her identity could not be established and there was enough information that he or she might have committed an offence (Article 202 § 1 of the CCP, as in force at the material time).
74. Section 20(1) of the National Police Act of 1976, in force at the relevant time, provided that the police could also arrest a person if (i) his or her identity could not be ascertained, (ii) he or she behaved violently or in breach of public order, (iii) he or she refused, without just cause, to appear after having been duly summoned, (iv) he or she knowingly impeded the police from carrying out its duties, (v) he or she carried or used unlicensed firearms, cold weapons, or other dangerous devices. In all these cases the police had to immediately carry out the necessary checks. After that, but in no case later than three hours after the person’s arrest, he or she had to be released, if no order for his or her detention was made. Only when the person’s identity could not be ascertained that deadline was extended to twentyfour hours (section 20(2) of the Act).
75. The “Manual on the Effective Prevention and Investigation of Extralegal, Arbitrary and Summary Executions” (U.N. Doc. E/ST/CSDHA/.12 (1991)), published by the United Nations in 1991, includes a Model Autopsy Protocol aimed at providing authoritative guidelines for the conduct of autopsies by public prosecutors and medical personnel. In its introduction, it is noted that a systematic and comprehensive examination and report were required to prevent the omission or loss of important details:
“It is of the utmost importance that an autopsy performed following a controversial death be thorough in scope. The documentation and recording of those findings should be equally thorough so as to permit meaningful use of the autopsy results... It is important to have as few omissions or discrepancies as possible, as proponents of different interpretations of a case may take advantage of any perceived shortcomings in the investigation. An autopsy performed in a controversial death should meet certain minimum criteria if the autopsy report is to be proffered as meaningful or conclusive by the prosector, the autopsy’s sponsoring agency or governmental unit, or anyone else attempting to make use of such an autopsy’s findings or conclusions.”
76. In a number of reports the European Commission against Racism and Intolerance at the Council of Europe has expressed concern about racially motivated police violence, particularly against Roma. Certain other bodies and non-governmental organisations have also reported in the last several years numerous incidents of alleged racial violence against Roma in Bulgaria, including by law enforcement agents. A detailed account of these reports may be found in the Court’s judgment in the case of Nachova and Others v. Bulgaria (nos. 43577/98 and 43579/98, §§ 5559, ECHR 2005...).
VIOLATED_ARTICLES: 13
2
3
5
VIOLATED_PARAGRAPHS: 5-1
NON_VIOLATED_ARTICLES: 14


ITEMID: 001-61365
LANGUAGEISOCODE: ENG
RESPONDENT: POL
BRANCH: CHAMBER
DATE: 2003
DOCNAME: CASE OF MALASIEWICZ v. POLAND
IMPORTANCE: 4
CONCLUSION: Violation of Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award
JUDGES: Nicolas Bratza
TEXT: 4. The applicant was born in 1966 and lives in Częstochowa, Poland.
5. In June 1995, on his way to work, the applicant bought a bottle of sparkling mineral water. While he was opening it, the bottle exploded and its metal cap hit the applicant’s left eye. The accident, despite the subsequent surgeries and medical treatment, resulted in the applicant’s loss of vision in his left eye. He was declared an invalid and was granted a disability pension by the Social Security Board (Zakład Ubezpieczeń Społecznych).
6. In August 1997 the applicant instituted civil proceedings for compensation and pension against the producer of the mineral water. He submitted medical certificates issued by the Częstochowa and Katowice Hospitals which treated his injury.
7. On 23 October 1997 the Częstochowa Regional Court (Sąd Wojewódzki w Częstochowie) exempted the applicant from the court fees.
8. On 15 November and 15 December 1997 the trial court held hearings.
9. In December 1997 the “S” assurance company joined the proceedings as an intervener.
10. In 1998 the trial court held four hearings at which it heard witnesses.
11. On 8 December 1998 the court, sitting in camera, ordered a medical expert opinion.
12. On 18 May 1999 the court received the opinion.
13. On 25 May 1999 the court, sitting in camera, ordered the Social Security Board to provide a copy of the applicant’s file.
14. Between 24 November 1998 and 7 September 1999 no hearings were held.
15. At the subsequent hearings held on 8 September 1999, 12 January and 14 June 2000 the court heard witnesses and ordered the preparation of new expert opinions.
16. On 13 December 2000 the trial court held a hearing at which it asked for another expert medical opinion to be prepared.
17. On 10 April 2001 the court received the expert opinion. The intervener challenged it.
18. At the hearing held on 20 June 2001 the court requested an expert opinion concerning the applicant’s pension.
19. The expert submitted the opinion on 31 January 2002. Again, the intervener challenged the opinion.
20. The next hearing, which was held on 20 March 2002, was adjourned sine die. The court ordered another expert opinion.
21. On 24 May 2002 the opinion was submitted to the court. Subsequently, the intervener challenged it.
22. On 27 September 2002 the trial court held a hearing.
23. On 30 September 2002 the Częstochowa Regional Court gave judgment. The defendant was found liable for the damage sustained by the applicant. The court awarded the applicant PLN 85,000 in compensation but dismissed his claim for pension.
24. Both parties appealed against this judgment.
25. On 4 April 2003 the applicant was exempted from the court-fees in the appeal procedure. The proceedings are pending before the Court of Appeal.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1