ITEMID: 001-68648
LANGUAGEISOCODE: ENG
RESPONDENT: UKR
BRANCH: CHAMBER
DATE: 2005
DOCNAME: CASE OF UKRAINIAN MEDIA GROUP v. UKRAINE
IMPORTANCE: 2
CONCLUSION: Violation of Art. 10;Pecuniary damage - financial award;Non-pecuniary damage - financial award;Costs and expenses award - domestic proceedings;Costs and expenses award - Convention proceedings
JUDGES: Zoryana Bortnovska
TEXT: 9. The applicant, the СJSC “Ukrainian Media Group” (ЗАТ “Українська Прес-Група”), is a privately owned legal entity, registered and situated in Kyiv, Ukraine. It owns a daily newspaper The Day (газета “День”).
10. The facts of the case, as submitted by the parties, may be summarised as follows.
11. On 21 August 1999 The Day published an article by Ms Tetyana E. Korobova entitled “Is this a second Yurik for poor Yoriks, or a Ukrainian version of Lebed?” The article read as follows:
“Epigraph: All of this is about her, our Natasha as well as yours. About the position that a progressive socialist, Natalia Vitrenko, may or may not hold - depending on which of the scenarios from Bankova [the name of the street where the President's Administration is situated] will eventually win the “tender” offered by office No. 1. Certainly, allowing for a certain margin of error, it will be possible to forecast which of the nominees would be easier to manipulate from the said office.
The first version [concerning her position] was predicted by The Day as far back as the spring, and was based on the assumption that, from the point of view of Bankova, Petro Symonenko [leader of the Communist Party] was not “nice or bright” enough for the role of “a scarecrow” in the pre-election scenario à la russe: “the reformer against the red threat”. Natalia Vitrenko, with her “Uranium mines”, and Volodymyr Marchenko are much more impressive and the best political scientists and sociologists told us, therefore, that she was the only person able to defeat Kuchma in the second round of the elections with a predicted 33 % of the poll. Political scientists and sociologists were soon proved wrong and Natalia Vitrenko's rating substantially decreased. However, this is due perhaps to the freedom of scientific debate and discord around the main body [that of the President] rather than Ms Vitrenko's real ratings. Of course, it is hard to believe that one third of the country's population, watching a TV programme where Natasha battered a deputy who had been knocked to the floor with the help of Marchenko's fists, would choose not to call an ambulance and medical help, but instead would race to vote for “progressive socialism”. It is evident, however, that the “Zhirinovsky percentage” of 10-11% is a normal result in a normal country, but not one where the society is mainly composed of sick people and beggars ... Natalia Vitrenko's special role was confirmed by the “painful” recounting of the number of signatures in support of her [registration as a candidate] at the Central Electoral Committee (CEC). Today the highly respected President of the CEC, Mr Mykhaylo Ryabets, told us how wrong the Supreme Court was when it ignored the required one million signatures and compelled the CEC to register the nominated candidates for the position of President in neglect of this norm. But only recently the same Ryabets shared his insights with the public which, if translated from the confidential-emotional language used, could sound like this: all the candidates registered by the CEC (acting on its own!) should not have been registered, because if the signatures submitted by the nominees had been subjected to serious scrutiny, none of the candidates, including Kuchma, would have withstood verification. What then was the criterion? Was it a presumption on the part of the CEC and its President about which scenario would be the best at the pre-election stage? For the CEC as well, apparently, it is not a secret which discussions preceded the decision of Bankova to register Natalia Mykhaylivna, who had problems for various reasons. Perhaps Vadym Rabinovych, who left our country prematurely and in a very untimely manner, might be able to disclose the details? Or maybe Kuchma's election agent, Mr Volkov, who fought for and won Natasha's registration?
As was discovered, it was not the apprehension, in the event of her failure to register, of having Vitrenko as a wild force that could break loose which influenced the final decision of Bankova, but the scenario “Kuchma v. Symonenko”, which is urgently being modified because of Petro Mykolayovych's [Symonenko's] alleged unreliability. The issue concerns the certainty repeatedly demonstrated by the Speaker [of Parliament] Tkachenko, that they [Bankova] would manage to agree with Symonenko, and the steady position of the Communist Party (CPU) ideologists who believe that the CPU does not want a clear loss, or a clean victory (referring to Bulgaria). This provoked even more commotion in Bankova. The Russian scenario that was used in the past is rusting away, and there is nothing else! Therefore an improved scenario was introduced: taking Natalia Vitrenko to the second round, nominating her against Kuchma - with the certainty that the fear of having Vitrenko and Marchenko managing the country would line everyone up to vote for Kuchma, including the left-wing.
The boys at Bankova are desperate gamblers because their venture might be answered adequately. For instance, the headquarters of all the main candidates who have already dropped out of the competition might negotiate and decide to let their supporters vote freely. Of course, they would not ask them to support Vitrenko, but to work in such a way that the motto “Anyone but Kuchma!” would be as topical as ever. Ultimately, it is no less immoral than the scenarios of Kuchma's headquarters. And if our “green” democracy has to have “the mumps”, the earlier the better: the acquired immunity would be stronger, as children's diseases have to be contracted in childhood.
In a country under President Vitrenko it would be both frightful and enjoyable, but not for long. Like in the Crimea under Yurik Meshkov. And what country-wide insanity that was /.../ At the beginning it was bizarre and then funny. He would come out, yell in front of the people, so self-assured, artistic, his voice so confident, metallic, everything clear, elderly ladies screaming and sobbing, trying to kiss his hands... And not a single institution obeying him. He seized an automatic gun and rushed to replace the head of the police. [He] replaced him. But nobody cared about the new one. Then he rushed to the SBU [Security Service of Ukraine]. And here they spoke to him politely, and they threw the people he had just appointed down the stairs and promised they would have something torn out ... Time flies and the differently coloured opposition is becoming united, the gangsters who left are returning, public servants from housing maintenance offices up to Government officials are sabotaging [him], the Verkhovna Rada [Parliament] is imposing restrictions on presidential powers - all of them are gathering against Yurik, life is not getting any better, his personal charisma is falling to pieces, people are sobering up. Some people say: this was the Crimea, it was backed by Kyiv. But we are not going to dwell upon the matter of who backed it and when they appeared. However, the point is that Autonomy is not the State. Had there been an army, everything would have been over sooner, citizens... Marchenko of course will seek to order General Kuzmuk about and make him resign. This would be something worth seeing... And the Verkhovna Rada will become such a friendly body, and constitutional amendments will be adopted without delays! The heyday of parliamentarism! Are pre-term presidential elections likely to be held in spring? Natalia Mykhaylivna, may God give her health, will finally put an end to disputes about whether the Ukrainian soil can bear its own “Newtons” in skirts. And the only prospective evil as a result of this experiment might be the complexities that will confront Yulia Tymoshenko as a female candidate during the next elections... Some people say: and what about the country and the people!? Ladies and gentlemen, do not prevent people from exercising their own sacred right to vote, if you are democrats. And do not prevent the same people from facing the consequences of their choice and their responsibility for it ...
However, we are unlikely to see the full extent of the people's joy or our Natasha's triumph, as long as there remain a few “real raving madmen” in Bankova. As a result, apparently, the blueprint of the Russian headquarters will be developed directly along the lines of the “Russian scenario”. And here we will discover great news about who can claim the role of the Russian Lebed in our country, who had been appointed to the Security Council prior to the elections and later surrendered to the incumbent President [Yeltsin], and thus largely determining the latter's victory during the new elections. According to an information source, the scenario of “the homegrown Lebed” emerging before the first round of the elections is as follows. At the end of August it is planned to launch a mass media campaign supporting the idea of setting up a People's Audit Committee (Alas! But Natalia Mykhaylivna seems to have already mentioned the need to revive this structure). In the first half of September, at the numerous requests of the workers, the President will issue a decree setting up this committee. It will start functioning immediately. One of the events that will be widely covered by the media is to be held in conjunction with the CEC and is to prevent violations of electoral law. At the same time, the media will launch an anti-Vitrenko campaign (only the pro-presidential media will move with this idea and they will be fully involved in it). And then the President, in accordance with the plan, should make a speech sternly demanding that the dirty propaganda campaign against the people's defender be terminated. The people will applaud the President and then, at the end of September, he will appoint the grateful Natalia Mykhaylivna as the Head of the People's Audit Committee. This would be followed by an official statement of candidates - Kuchma and Vitrenko - as a result of which only one candidate will remain. Natalia Mykhaylivna will be dancing Saint-Sense. It means that she is still unlikely to hear the “swan song” of her political career, but the Russian script writers are rubbing their hands with glee, waiting for the electoral campaign to be over with a feeling that their strategic duty has been completely fulfilled. One should admit that the scenario is not weak. The matter to be addressed is the extent to which Natalia Mykhaylivna is ready for the originality of those who are using her, and to what extent she is aware of the level of cynicism of the system that has been preparing the background for five years to allow this progressive socialist to demonstrate her brilliant abilities in accounting and auditing on behalf of the people? The chain is getting tighter and the leash is getting shorter... However, the Berezovsky-guided Lebed was quickly dismissed from his post and he eventually landed, with his [Berezovsky's] help, in rich territory. The headquarters' script writers, commissioned by the Russian oligarch, are unlikely to have the same long-term and prospective intentions for our Natasha. However, it is quite possible that, even perceiving the danger of this for herself, Natalia Mykhaylivna will be compelled to understand that she has been made an offer she cannot refuse. It is hardly a coincidence that the Sumy governor, Volodymyr Scherban, is telling the media that he financially supported the PSPU's [Progressive Socialist Party of Ukraine] Congress. Then Mr Pinchuk will also recollect how he promoted Ms Vitrenko in Dnipropetrovsk. And here Mr Rabinovych, who started work on Mr Moroz's ratings (“Rabinovych v. Moroz” ... despite the feelings that Rabinovych may arouse in the majority of the population), following the advice from the Presidential Administration, will recollect the PSPU's prospects ... And then it will be corroborated that Bankova had been helping Natalia Mykhaylivna not only because their family and that of Mr Razumkov were on friendly terms. It is possible that no one will have any more doubts that the cool opposition member is just “a loudspeaker” of the administration of the President of Ukraine, whose role is that of the Russian Zhirinovsky (as some slanderers would say) and is employed and paid personally. The role is simple: you might say whatever you like, but act “correctly”, without making the Father [the President] grieve, whilst undermining his enemies.
So, if the theme of the “People's audit” is outlined, the Russian plan will be launched. And Kuchma's competitor will be Petro Symonenko. The electoral palette will increasingly gain more clear-cut contours. Kostenko and Onopenko [MPs] have initiated another electoral block, an alliance that constitutes an alternative to that of the “three whales”: Marchuk - Moroz - Tkachenko – the reasons are quite understandable. However, Kostenko's “Rukh” [Ukrainian Political Party] appears and disappears now and then. But definitely there are still Zayets [MP] and other loyal followers of the tactics of Chornovil [leader of another fraction of the “Rukh” at the time], even though they were knocked down [by Kostenko's “Rukh”]. Fidgeting behind the State authorities on an ideological underlay with anti-left colouring. It will be determined here, today, which one of the “Rukhs” is better prepared for defending the national-patriotic masses. Poor Onopenko who is used to various kinds of “kydalovo” (deception) could not possibly answer the question: “If they promise you the PM's office, will you go against Kuchma?” After the centre-right had been joined by the “green” Kononov [a member of the Green Party] whose main idea was to avoid Kuchma's anger while not working for him, there were no more doubts that the ideology of the block lies in self-preservation. And Oliynyk, an “unidentified object” who joined them, has crafty ideas himself. The general perception has not therefore changed.
Thus, only the “triple alliance” of Marchuk - Moroz - Tkachenko joined by “an active bayonet,” Yuri Karmazin, still remains within Bankova's firing line, and on this alliance depends how successful all the candidates will be in Bankova's game aimed at Kuchma's victory. ... Sometimes it really seems that our country deserves Kuchma-2, or another Yurik ... Are we poor Yoriks indeed? And had there not been the fear that the election results might be declared null and void - such fears being unanimously expressed by the pro-presidential people - it might have been possible to think that they were all right ...”
12. On 21 August 1999 Ms Natalia M. Vitrenko (leader of the PSPU) lodged a complaint with the Minsky District Court of Kyiv against The Day, seeking compensation for pecuniary and non-pecuniary damage because the information contained in the article published on 21 August 1999 was untrue and damaged her dignity and reputation as a Member of Parliament. On 3 March 2000 the Minsky District Court of Kyiv allowed her claims in part and ordered The Day to pay Ms Vitrenko UAH 2,000 in compensation for non-pecuniary damage. It also found that the whole article published in The Day was untruthful, since the applicant had failed to prove the truth of the information which it had published. It further ordered the newspaper to publish rectification of this information, within a month, in one of the forthcoming issues of The Day, alongside the operative part of the judgment of 3 March 2000. In particular, the court held:
“... the court disagrees with the arguments raised by the defendants, since the information disseminated by them in The Day of 21 August 1999 was untrue. This article was published on page 4 in the column entitled “Details” and “Prognosis”. However it was not specified to the reader of the newspaper how he or she could distinguish “the prognosis for the future” from the facts and, moreover, the “details” ...
... the above-mentioned section 42 of the Printed Mass Media (Press) Act has a specific list of circumstances which exempt the editorial board from liability. This list does not include a “prognosis with the details”, and therefore the liability of the defendants is engaged regardless of “whether they intended to evaluate the developments in the course of the previous presidential elections in Ukraine ...
... the expressions “a second Yurik for poor Yoriks or a Ukrainian version of Lebed”, “our and your Natasha”, “a scarecrow (strashylka)”, “a loudspeaker of the Administration of the President, acting as Zhirinovsky in Ukraine”, as used by the author, may be [regarded as] ... the author's imagination and are not “generally accepted political rhetoric”. They are, moreover, the author's own “value judgments”...
... Also, the court disagrees ... that this article pertains to Natalia Vitrenko as a candidate for the Presidency of Ukraine, but not to [her] private life ... The article pertains not to Vitrenko herself but deals with the existence of certain plans of the “Bankova” [the administration of the President of Ukraine] and how Natalia Vitrenko could be manipulated by it ... The court considers that the personal life of the plaintiff as a person, a human being, is closely connected with her political views and beliefs and with her role in the political structure of society. Therefore the role of a “scarecrow” which, according to the prognosis of the defendant, Ms Tetiana E. Korobova, was planned by the Administration of the President of Ukraine, is untruthful. The court considers this to be the product of the author's imagination ...
The court considers that such “value judgments” defame the honour and dignity of the plaintiff and her reputation, whereas she is the leader of the PSPU, ... a member of the Verkhovna Rada, and a candidate for the position of President... This means that the article concerns her both as a public and a private person. ...”
13. On 12 July 2000 the Kyiv City Court upheld this decision. In particular, it stated that the findings of the Minsky District Court of Kyiv were correct since the appellants had failed to prove, and the court did not establish, that the disseminated information was true.
14. On 14 September 1999 The Day published an article by Ms Tetiana E. Korobova entitled “On the Sacred Cow and the Little Sparrow: Leader of the CPU as Kuchma's Last Hope”. The relevant extracts of the article read as follows:
“... Petro Mykolayovych was allegedly visited by a person resembling Oleksandr Volkov, Kuchma's election agent, who allegedly told the CPU leader: “If you withdraw from the race [presidential elections], you will lose your head. You withdraw your name from the list [of candidates] today - you will be buried tomorrow...
... they are ready to go to the very “end”, following the resolutions of the Congress [of the Communist Party] and after Kuchma's election, to collaborate with him and have the Government delivered to them as a present for their services ...
... Petro Mykolayovych might be offended by The Day again. In vain. Here a parable has just dawned on me. In bitter weather a little sparrow was frozen while flying and collapsed. A cow was passing by and a cowpat fell directly onto the little sparrow. He warmed up, put his little head out and started chirping, in a gleeful mood. And at this point a cat enters, sneaks up on him and there is no more little sparrow. The moral: if you get into dung, just sit there and do not chirp. And remember, not everyone who excretes on you is your enemy and not everyone who pulls you out of the dung is your friend. I apologise for being so straightforward.”
15. In December 1999 Mr Petro M. Symonenko (the leader of the Communist Party) lodged a complaint with the Minsky District Court of Kyiv against The Day and Ms Tetiana E. Korobova, alleging that the information contained in the publication was untrue. He also sought to defend his honour, dignity and reputation and to obtain compensation for non-pecuniary damage. On 8 June 2000 the Minsky District Court of Kyiv partly allowed Mr Symonenko's complaints and ordered The Day to pay him UAH 1,000 in compensation for non-pecuniary damage. It also ordered the newspaper to publish a rectification of the information found to be untrue alongside the operative part of the judgment of 8 June 2000. In particular, it held that:
“... in examining this case, account has to be taken of the fact that Mr Petro M. Symonenko is a political leader and the article relates to the area of his activity as a politician, and not that of an average citizen. ...
As to the other extracts from the article referred to by the plaintiff in his claim, the court considers that they were found to be untrue during the court hearing, since the defendant could not provide the court with evidence proving the truth of the information contained in the publication. ...
The defendant's representative maintained during the hearing that these extracts were merely presumptions of the author of the article. However, he failed to confirm this. The court is sceptical, since from the text of the article it cannot be understood that the journalist refers to her statements as presumptions and that the reader has to identify the text as a presumption. The comparison of the plaintiff to “a little sparrow” is in his [the plaintiff's] opinion humiliating. Moreover, there was no evidence of an existing agreement before the elections between Mr Petro M. Symonenko and the officials in office as implied by the headline of the article “The Leader of the CPU as Kuchma's Last Hope”.
... this [non-pecuniary] damage resulted from the fact that the article was published before the presidential elections, in which the plaintiff was also a candidate. Therefore ... he was compelled to explain to the electorate the issues raised in the article. ... The applicant considers that this article accused him of betraying his party members, colleagues and the electorate. Damage was inflicted on him as a man of honour, taking into account the metaphors that the author used in her article. Thus, the CJSC Ukrainian Media Group published information that it had not verified and disseminated data that was untrue ... and Ms Tetiana E. Korobova invented information that was not true and disseminated it....”
16. The court also concluded that the following should be adjudged untrue:
“... the headline of the article on the first page “On the Sacred Cow and the Little Sparrow: The leader of the CPU as Kuchma's last hope.”
... that Petro Mykolayovych was allegedly visited by a person resembling Oleksandr Volkov, Kuchma's election agent, who allegedly told the CPU leader: “If you withdraw from the race [presidential elections], you will lose your head. You withdraw your name from the list [of candidates] today - you will be buried tomorrow” ...
... they are ready to go to the very “end”, following the resolutions of the Congress [of the Communist Party] and after Kuchma's election, to collaborate with him and have the Government delivered to them as a present for their services. ...”
17. On 16 August 2000 the Kyiv City Court upheld this decision. In particular, it stated that the Minsky District Court of Kyiv came to the correct conclusion that the respondent in this case had not proved the truth of the information disseminated about Mr Petro M. Symonenko. It also held that the conclusions of the court were based on the case file and complied with the legislation in force.
18. The recent Parliamentary Assembly Recommendation “Freedom of Expression in the Media in Europe” (No. 1589 (2003)) concerned the persecution of the media and journalists in Ukraine following publications criticising politicians and officials in power.
19. The relevant extracts from the PACE Resolution No. 1346 read as follows:
“1. The Parliamentary Assembly refers to its Resolutions 1179 (1999), 1194 (1999), 1239 (2001), 1244 (2001) and in particular to Resolution 1262 (2001) on the honouring of obligations and commitments by Ukraine, adopted by the Assembly on 27 September 2001. ...
11. The Assembly condemns the very high incidence of violence against journalists (the most prominent among them being the killings of Georgiy Gongadze in 2000 and Ihor Alexandrov in 2001), and the low number of such crimes which have been solved. It is also concerned by the continued abuse of power, particularly in the provinces, with regard to taxation, regulations and police powers in order to intimidate opposition media. It reiterates its call on the Ukrainian authorities to conduct their media policy in a way which will convincingly demonstrate respect for the freedom of expression in the country. ...
12. The Assembly is concerned about the presidential administration's attempts to establish ever tighter control over the State-run, oligarch-controlled and independent media. In this respect it welcomes the resolution adopted by the Verkhovna Rada on 16 January 2003 on the issue of political censorship in Ukraine and, in particular, the amendments adopted on 3 April 2003 concerning a number of laws dealing with freedom of expression, as the aim of these amendments is to offer better legal protection to journalists, particularly in relation to the question of their liability for the dissemination of information and their access to official documents. It expresses the firm hope that these provisions will be effectively implemented at all levels of administration (national, regional and local).”
20. Relevant extracts from the Resolution of the European Parliament read as follows:
“... E. whereas freedom of expression in Ukraine is coming under further threat, and an increasing number of serious violations against independent media and journalists are taking place, such as direct pressure and intervention from official services against certain media, arbitrary administrative and legal actions against television stations and other media outlets and harassment of, and violence against, journalists,
... 2. Calls on the Government of Ukraine to respect freedom of expression and undertake sustained and effective measures to prevent and punish interventions against a free and independent media, arbitrary administrative and legal actions against television stations and other media outlets and harassment of, and violence against, journalists ...”
21. The relevant extracts from the Report of 8 April 2004 concerning freedom of expression read as follows:
“47. Freedom of expression and media freedom in Ukraine, which have already been the subject of expert reports and comments by the Ukrainian authorities ..., remain a matter of major concern. ...
... 55. Some of the new provisions of the new Civil Code that came into force at the beginning of 2004 (text not available) also seem to pose problems with regard to freedom of expression and information, according to information gathered by the Secretariat Delegation. This concerns in particular Article 277, which stipulates that “negative information shall be deemed to be false” and Article 302, which provides that “information communicated by the State organs is truthful”. These provisions could lead journalists to engage in self-censorship in order to avoid prosecution under them. This is another cause for concern, even though Ukrainian courts have not yet ruled on the provisions, given the recent entry into force of the new Civil Code.
Specific recommendations: ... The Ukrainian authorities should implement the Council of Europe's recommendations aimed at aligning the Ukrainian laws concerning the media with the relevant Council of Europe standards. They should ensure that any draft law dealing with freedom of expression and information strictly respects the standards, as set out in particular in Article 10 of the European Convention on Human Rights.”
22. Relevant extracts from the Constitution read as follows:
“... Everyone is guaranteed judicial protection of the right to rectify incorrect information about himself or herself and members of his or her family, and of the right to demand that any type of information be rectified, and also the right to compensation for material and moral damage inflicted by the collection, storage, use and dissemination of such incorrect information.”
“Everyone is guaranteed the right to freedom of thought and speech, and to the free expression of his or her views and beliefs.
Everyone has the right to freely collect, store, use and disseminate information by oral, written or other means of his or her choice.
The exercise of these rights may be restricted by law in the interests of national security, territorial indivisibility or public order, with the purpose of preventing disturbances or crime, protecting the health of the population, the reputation or rights of other persons, preventing the publication of information received confidentially, or maintaining the authority and impartiality of justice.”
23. Relevant extracts from the Civil Code read as follows:
“A citizen or an organisation shall be entitled to demand in a court of law that information be refuted if it is not true or is set out untruthfully, degrades their honour and dignity or reputation, or causes damage to their interests, unless the person who disseminated the information proves that it is truthful.
... Information disseminated about a citizen or an organisation that does not conform to the truth and causes damage to their interests, honour, dignity or reputation shall be subject to rectification, and pecuniary and non-pecuniary damage can be recovered. A limitation period of one year shall apply to claims concerning rectification of such data and compensation.”
24. Relevant extracts from the new Civil Code read as follows:
“1. A person shall have the right to compensation for moral damage in the event of an infringement of his/her rights.”
“... 3. Any kind of negative information disseminated about a person shall be considered untruthful.
... 6. A person, whose rights were infringed ... shall have the right to a response and rectification of information in the same mass media source and in accordance with the procedure established by the law.
... Rectification of untruthful information shall not depend on the actual guilt of the person that disseminated it.
7. The untrue information shall be rectified in the same manner as it was disseminated.”
25. Relevant extracts from the Data Act provide:
“... Liability for the infringement of data legislation shall be borne by the persons found guilty of infringements such as:
... dissemination of information that does not correspond to the truth;
... dissemination of information that is untrue or defames a person's honour and dignity; ...”
26. Relevant extracts from the Printed Media (Press) Act provide:
“... A journalist is obliged to:
... 2) provide objective and truthful information for publication; ...”
“Citizens, legal entities and State bodies and their legal representatives have the right to demand rectification of information published about them or data that does not correspond to the truth or defames their honour and dignity.
If the editorial board does not have any evidence of the fact that the information published by it corresponds to the truth, it has to rectify this information at the request of the plaintiff in the next issue of the printed media or to publish a rectification on its own initiative. ...”
“The editorial board and journalists are not liable for the publication of information that is untrue, defames the honour and dignity of citizens and organisations, infringes their rights and lawful interests or constitutes abuse of the freedom of activity of the media and the rights of journalists if:
1) this information was received from the news agencies or from the media owner (co-owners);
2) the information contains responses to a formal request for access to official documents or to a request for written or oral information, provided in accordance with the Data Act;
3) the information is a verbatim reproduction of any official address of the officials of State bodies, organisations and the citizens' unions;
4) the information is a verbatim reproduction of materials published by other printed media which refer to that information;
5) the information contains secrets that are specifically protected by law, but the journalist received this information lawfully.”
27. The relevant extract from Resolution No. 4 of the Plenary Supreme Court of 31 March 1995 “on the Court Practice in Cases of Compensation for Moral (non-pecuniary) Damage” reads as follows:
“...11. ... The critical assessment of certain facts ... could not serve as a basis for allowing claims for compensation for non-pecuniary damage. However, if other rights of a person protected by law were violated (for instance confidential information was disseminated without his/her consent), then this could lead to the award of compensation for moral damage [by the court]...”
28. The relevant extract from Resolution No. 7 of the Plenary Supreme Court of 28 September 1990 “on the Application of the Legislation Regulating the Protection of the Honour, Dignity and Business Reputation of Citizens and Organisations” reads as follows:
“... 17. In accordance with Article 7 of the Civil Code the defendant [in a defamation case] has to prove that the information disseminated by him corresponds to the truth. The plaintiff only has the obligation to prove that the defendant has disseminated defamatory information about him. The plaintiff also has a right to provide evidence of the untruthfulness of such information.”
29. The relevant extract from the ruling of the Supreme Court of 11 September 2002 in the case of S. v the newspaper Simya ta Dim (“Family and House”) reads as follows:
“...when considering cases that concern the protection of honour and dignity [the courts] have to take into account that the critical assessment of facts and deficiencies, thoughts and opinions, [or] critical reviews of works of art, cannot serve as a basis for allowing compensation claims for moral damage.”
30. The Government have provided the Court with the following domestic court decisions that from their point of view contained an assessment of value judgments:
judgment of 18 October 2000 of the Starokyivsky District Court of Kyiv;
judgment of 25 October 2000 of the Radiansky District Court of Kyiv;
judgment of 20 November 2000 of the Shevchenkivsky District Court of Kyiv;
judgment of 21 January 2001 of the Lubny District Court of the Poltava Region;
judgment of 22 June 2001 of the Artemovsk City Court of the Donetsk Region (upheld by the Donetsk Regional Court of Appeal on 17 December 2001);
judgment of 24 July 2001 of the Minsky District Court of Kyiv;
judgment of 18 September 2001 of the Volodarske City Court;
judgment of 28 September 2001 of the Shevchenkivsky District Court of Kyiv;
judgment of 23 April 2003 of the Tsentralny District Court of Mykolayiv;
judgment of 15 May 2003 of the Leninsky District Court of Sevastopol;
extracts from the judgments with regard to the application of Article 10 of the Convention by the domestic courts, as referred to in the book of the Deputy President of the Mykolayiv Regional Court of Appeal, Judge V.P. Paliyuk, “Application of the ECHR by the Ukrainian courts” (pp. 146-212).
31. The relevant extract from the Supreme Court's statistics for 2002 reads as follows:
“In 2002 there were about 6,177 cases that concerned the protection of honour, dignity and business reputation. Of these, 1,978 applications were considered on the merits, which constitute 49.4% of the total number of cases in which the proceedings were terminated; the claims were allowed in 1,116 cases, or in 56.4% (59.9%) of the total number of cases, with a decision being adopted. Approximately UAH 4,224,000 were awarded to the plaintiffs in these cases. There were approximately 1,109 claims lodged with the courts against mass media sources, of which 356 cases were considered on their merits, 223 claims were allowed, or 62.6% (61%) of the cases considered, and ... judgments were delivered in these cases. The total amount of the claims allowed was UAH 1,191,000.”
32. The relevant extract from the Supreme Court's statistics for 2003 reads as follows:
“In 2003 there were approximately 6,200 cases that concerned the protection of honour, dignity and business reputation considered by the courts; 2,000 cases were considered on the merits and the proceedings terminated. In 1,100 cases the claims were allowed (53.5% [56.4%] of the total number of cases) and judgment adopted. The total amount of claims allowed came to UAH 8,419,000. Among the aforementioned cases, there were 927 cases initiated on the basis of the claims lodged against the mass media, that is 16.4% less than in the previous year. Of these claims, 308 cases were considered and 187 applications were allowed, that is approximately 60.7% [62.6%] of the cases that were considered. The total amount of the claims allowed was UAH 4,535,000.”
33. The systematic “legal harassment” of the Ukrainian media by the Government and the latter's attempts to control the media, and information disseminated by the media, are mentioned in the report of the Human Rights Watch (March 2003, Vol. 15, No. 2(D)).
34. Relevant extracts from the Report of the US Department of State provide:
“a. Freedom of Speech and Press
... The NGO Freedom House has downgraded the country's rating from “partly free” to “not free” because of the State censorship of television broadcasts, continued harassment and disruption of independent media, and the failure of authorities to adequately investigate attacks against journalists.
... The use or threat of civil libel suits continued to inhibit freedom of the press, but the number of cases during the year reportedly decreased.
... On 3 April, the Rada passed a law that set limits on the amount of damages that can be claimed in lawsuits for libel. The law requires that the plaintiff deposit a payment of 1 to 10 percent of claimed damages in the form of collateral, which is forfeited if the plaintiff loses the lawsuit. Additionally, the law waives press responsibility for inoffensive, non-factual judgments, including criticism. Despite these measures, the Office of the Ombudsman indicated concern over the “astronomical” damages awarded for alleged libel.
... Government entities used criminal libel cases or civil suits based on alleged damage to a “person's honour and integrity” to influence or intimidate the press. According to the Mass Media Institute (IMI), 46 actions were brought against the mass media and journalists for libel during the year. IMI estimated that government officials initiated 90 percent of these suits. Article 7 of the Civil Code allows anyone, including public officials, to sue for damages if circulated information is untrue or insults a person's honour or dignity.
The new Civil Code, enacted during the year and scheduled to take effect in 2004, provides that negative information about a person shall be considered untrue unless the person who spread the information proves to the contrary. Journalists and legal analysts have expressed concern that this Code will have a negative impact on freedom of speech and the press.”
35. Relevant extracts from the Report of Article 19 on Freedom of the Press in Ukraine (paragraph 3.6 “Freedom of expression and defamation”) read as follows:
“4.1.3. Ukraine: ... In 1999 there were 2,258 suits against the media, for more than UAH 90 billion, of which approximately 55 per cent were brought by public officials. Reportedly 70 per cent of these cases were bogus and brought to influence the media's output. In 2001 it was reported that Den' [The Day] newspaper had been sued 45 times for a total of UAH 3.5 million. The situation was not dissimilar in 2002. Some lower courts still order that newspapers' accounts be frozen pending a trial in civil defamation cases, and newspapers' assets may well be confiscated to coerce the media into paying fines.
... Consequently, many journalists publish anonymously, using a pseudonym to avoid being personally targeted when addressing politically sensitive issues. In particular, journalists feel that, although criticism of the Verkhovna Rada and the Cabinet of Ministers is relatively safe, the opposite is true for criticism of the President.
Article 8(3) of the Civil Code ... defamation contains the double requirement that a statement be false and harms one's reputation in order to be regarded as defamatory, in compliance with international standards on defamation. However, it also includes protection against harm to other “interests”, which is too vague and therefore open to interpretation and possible abuse: other interests, such as privacy, should be protected through specific provisions, while the exact scope of a defamation law needs to be clearly and narrowly defined.
... Moreover, Article 37 of the Press Law states that refutation in defamation cases can be claimed if a statement is false or lowers one's reputation ...
... Instead, in order to exercise the right of reply in a defamation case, the information has to be false and harm one's reputation. ... Article 440(1), on compensation of moral damage', states that: “Moral damage caused to citizens or organisations by another person who violated their legal rights is paid by the person who caused the damage if this person cannot prove that moral damage was not his/her fault. Moral damage is compensated in pecuniary or other material form according to the ruling of the court irrespective of compensation of property damage. ... The provision places the burden of proof on the person who disseminates the information.
A positive development has been the passing of the Law “on the Introduction of Changes to Certain Laws of Ukraine which Guarantee the Freedom of Speech”, stating that public bodies which take defamation suits can only claim refutation of false information but not compensation. The same law introduced a provision “on State Support of Mass Media”, stating that, in cases taken by public officials against the media, moral damages may be imposed only when malicious intent by a journalist is proven, and that non-pecuniary remedies, such as refutation, should have priority over pecuniary ones. It is clearly stated that journalists should benefit from a defence of reasonable publication.
Journalists have been receiving better legal representation in court and have therefore been able to win more cases, also thanks to the legal training received from international organisations.
... Article 277 of the new Civil Code of Ukraine ... to come into force on 1 January 2004, establishes that “negative information disseminated about a person shall be considered false”. “Negative information” is to be understood as any form of criticism or description of a person in a negative light.
This provision is not only a breach of the right to freedom of expression but turns reality on its head to the extent that something that is true but negative will be considered false. It cannot possibly be justified as necessary, since it will often be a matter of great public interest to disseminate negative facts, as well as opinions, about people. The exposure of corruption, for example, may well require both.
... To conclude, the situation remains critical ... Ukraine have achieved some progress towards media freedom, yet journalists face immense challenges on a daily basis, which can make engaging in professional journalism a dangerous endeavour. Coalitions and solidarity among members of the journalistic profession, media groups and civil society, with the support of international institutions, are vital in strengthening the democratic processes and for the creation of an environment in which the media can flourish. Cross-border regional initiatives can be instrumental in this context, by facilitating the transfer of experience and know-how, so as to mutually strengthen democratisation movements.”
VIOLATED_ARTICLES: 10


ITEMID: 001-5416
LANGUAGEISOCODE: ENG
RESPONDENT: CYP
BRANCH: ADMISSIBILITY
DATE: 2000
DOCNAME: LYSSIOTIS v. CYPRUS
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Nicolas Bratza
TEXT: The applicant is a Cypriot national and a pensioner, born in 1923 and living in Larnaca.
A.
The facts of the case, as submitted by the applicant, may be summarised as follows.
On 28 March 1973 the applicant acquired a plot of land measuring 1 and 3/4 acres. On 24 March 1977 the Ministry of Transport decided to expropriate 1 and 1/4 acres (1719 square metres) of the applicant's land in order to construct the Nicosia-Limassol highway (administrative act 234/24.3.77). On 9 January 1981 another 850 square feet (79 square metres) were expropriated (administrative act 10/9.1.91).
On 13 August 1983 the Land Registry Office of the Province of Limassol offered the applicant 4,200 Cyprus pounds by way of compensation. The applicant rejected this offer on 24 September 1983.
On 10 December 1985 a second offer of 3,880 pounds was made to the applicant, which he rejected as well.
On 4 September 1987 the Land Registry referred the case of the applicant, together with other similar cases, to the District Court (Eparhiako Dikastirio) of Limassol (reference No. 29/87).
On 20 November 1987 Mr. G.G., a lawyer practising in Cyprus, declared before the District Court that he would be representing the applicant in the proceedings. The applicant signed a power of attorney authorising G.G. to act on his behalf in the specific case.
On 17 June 1988 Law 84/88 was enacted providing for the recalculation of compensation awarded in expropriation cases. On 28 September 1988 an offer of 21,240 pounds was made to the applicant, which he accepted on 3 October 1988. The applicant was not, however, paid this sum, as the Republic lodged, on an unspecified date, an appeal with the Supreme Court (Anotato Dikastirio) challenging the applicability of the new law in cases of expropriation pending before the courts.
On 29 September 1989 the Supreme Court considered that the provisions of Law 84/88 did not apply in cases of expropriation pending before the courts. Following this decision, the applicant was informed on 18 November 1989 that the offer made to him on 28 September 1988 had no legal basis and was null and void. Consequently, the District Court of Limassol resumed its examination of case No. 29/87.
According to the Government, the proceedings before the District Court followed the course which is described below.
On 13 November 1990 G.G. was summoned to appear before the District Court of Limassol on behalf of the applicant at a hearing on 21 December 1990. On 21 December 1990 Mr. B. appeared before the District Court on behalf of the applicant, replacing G.G. The District Court decided to adjourn the hearing until 22 February 1991.
At the hearing of 22 February 1991 the applicant was represented by Mr. I., acting on behalf of G.G. The District Court decided to adjourn the examination of the case, insofar as it concerned the applicant and certain other persons, until 29 March 1991.
On 26 February 1991 G.G. entered a claim on behalf of the applicant. At the hearing of 29 March 1991 the applicant was not represented. G.G. was, however, present in his capacity as representative of certain other persons claiming compensation. The District Court decided to adjourn until 15 May 1991.
At the hearing of 15 May 1991 the applicant was represented by Mr. K., acting on behalf of G.G. The District Court decided to adjourn the examination of the case, insofar as it concerned the applicant and certain other persons, until 14 June 1991. At the hearing of 14 June 1991 the applicant was again represented by K., acting on behalf of G.G. The District Court decided to adjourn the case until 27 September 1991. At the hearing of 27 September 1991 the applicant was represented by G.G. The District Court decided to adjourn the case until 20 December 1991.
On 20 December 1991 the District Court of Limassol held another hearing at which the applicant was not represented. G.G. was, however, present in his capacity as representative of certain other persons claiming compensation. The District Court decided to adjourn the examination of the case, insofar as it concerned the applicant, until 28 February 1992.
At the hearing of 28 February 1992 the applicant was not represented. The District Court heard the case in his absence and decided to award him 8,696 pounds by way of compensation. On 10 August 1992 the Land Registry issued an order for the payment of this sum in favour of the applicant.
On 10 November 1993 the applicant lodged an application with the European Commission of Human Rights. He complained of a violation of his rights under Article 1 of Protocol No. 1 in that he had not been paid adequate compensation for the expropriation of his land, and also of a violation of Article 6 § 1 of the Convention since he had not been heard in the determination of his civil rights and obligations.
In the proceedings before the Commission, the applicant claimed that he was unaware of these developments. In a letter addressed to the Commission dated 28 July 1994 the applicant claimed that a year after he had received the letter of 18 November 1989 (informing him of the outcome of the proceedings before the Supreme Court and of the resumption of the proceedings before the District Court of Limassol) he went to the Registry of the District Court of Limassol. There he met a former judge, whom he knew by sight and the name of whom he would disclose to the Commission later, showed him the letter of 18 November 1989 and together they appeared before the Registrar who informed them that the case would be decided in Nicosia. The applicant also claimed that a year after he had received the letter of 18 November 1989 he visited the Limassol Court Registrar accompanied by a lawyer, Mr. V., in order to be informed of the date of the determination of lawsuit No. 29/87. The reply he received was that the case was under investigation in Nicosia without explanation by which body.
The applicant stated that in November 1991 he assigned his case to a lawyer practising in Nicosia, Mr. E. Two days later E. informed the applicant that he could not represent him in the particular case. Towards the end of 1992 the applicant allegedly received a cheque dated 17 August 1992 for 8,696 pounds, with no covering letter, which he returned to the Limassol Land Registry on 20 January 1993.
The applicant stated that in October 1993 he contacted the Attorney General's Office, where he was informed that case No. 29/87 had been heard and that he could no longer appeal against the decision of the Provincial Court.
On 17 November 1993 the applicant wrote to the Ministry of Transport and Public Works complaining that he had not been invited to participate in the proceedings before the District Court. By letter of 20 April 1994 the Ministry of Transport gave the applicant a detailed account of the history of the case. In the letter it is mentioned that the applicant was represented before the District Court by a lawyer from Larnaca, Mr. A.G, who has the same surname as G.G.
Upon receipt of this letter, the applicant wrote on 4 and 26 May 1994 to A.G. asking him to clarify his role in the proceedings. In his second letter the applicant refers to a telephone conversation during which an employee of A.G. confirmed to the applicant that A.G. did not know anything about the proceedings.
On 16 October 1996 the Commission declared the application inadmissible for non exhaustion of domestic remedies. The Commission noted that although the applicant claimed that when he was informed of the court decision fixing the amount of compensation the time-limit for lodging an appeal had expired, he could have asked for an extension and that nothing had been submitted which could lead to the conclusion that such an application would have had no prospects of success.
On 29 September 1998 the applicant invited the District Court of Larnaca to grant him an extension of the time-limit to lodge an application under Order 33 Rule 5 of the Civil Procedure Rules in order to have the judgment of 28 February 1992 of the District Court of Limassol set aside. He alleged that he was confused by all the correspondence exchanged with the competent authorities and thought that the proceedings before the District Court of Limassol were adjourned. As a result, he did not consider it appropriate to pursue the proceedings.
On 5 April 1999 the District Court of Larnaca dismissed the applicant’s request on the ground that his submissions were unfounded. The District Court noted that on 21 December 1990 a lawyer, Mr B., had appeared before it on behalf of the applicant and that at the hearing of 22 February 1991 the applicant had been represented by Mr I., acting on behalf of G.G. Furthermore, on 26 February 1991 G.G. had entered a claim on behalf of the applicant. However, it transpired from the minutes of the hearing of 27 September 1991 that the applicant had not appeared before the court on that date but was represented by G.G. The minutes did not specify whether this lawyer was from Larnaca or Limassol. The District Court concluded that the applicant had not shown any interest in the course of the proceedings until the District Court of Limassol delivered its judgment on 28 February 1992. Then for three years he remained indifferent and lodged an application with the European Commission. Six years and a half had elapsed between the judgment of 28 February 1992 and the introduction of the application under examination by the District Court.
The applicant appealed to the Supreme Court, but the appeal was dismissed on 22 March 2000. It found that the District Court had exercised its unfettered discretion within the limits provided for by law.
B. Relevant domestic law and practice
Rule 14 of the Compensation Assessment Tribunal Rules of 1956 provides as follows:
"If ... any party to a reference does not appear at (the) time and place (appointed for the hearing) the President or the Tribunal may hear and determine the ... reference in his absence and may make such order as to costs as he or it thinks fit."
Order 33 Rule 5 of the Civil Procedure Rules, which apply mutatis mutandis by virtue of section 20 of the Compulsory Acquisition of Property Law of 1962, provides as follows:
"Any judgment obtained where one party does not appear at the trial may in a proper case be set aside by the Court upon such terms as may seem fit, upon an application made within 15 days after the trial."
Order 57 Rule 2 of the Civil Procedure Rules further provides as follows:
"A Court ... shall have the power to extend ... the time-limits fixed by these rules, ..., upon such terms (if any) as the justice of the case may require."
The courts enjoy unfettered discretion insofar as extensions of time-limits are concerned. This discretion is exercised in the light of the circumstances of each case and in the interests of justice. A case where the advocate has failed to appear at the trial, thus causing injustice to the case of his client, is a typical example of a case where the national court will find that the justice of the case requires an extension of the time-limit for filing an application under Order 33 Rule 5. However, long delays in asking for an extension require satisfactory explanation.


ITEMID: 001-93600
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: CHAMBER
DATE: 2009
DOCNAME: CASE OF TSARKOV v. RUSSIA
IMPORTANCE: 4
CONCLUSION: Violation of Article 5 - Right to liberty and security
JUDGES: Anatoly Kovler;Christos Rozakis;Elisabeth Steiner;George Nicolaou;Giorgio Malinverni;Khanlar Hajiyev
TEXT: 6. The applicant was born in 1973 and is serving a prison sentence in Tomsk.
7. The applicant was suspected of involvement in a criminal gang. On 1 September 2000 the Prosecutor’s Office of the Republic of Tatarstan (the “Prosecutor’s Office”) opened a criminal investigation into the gang’s activities. On 20 September 2001 the applicant was arrested on suspicion of two counts of murder and placed in custody.
8. On 21 September 2001 the prosecutor authorised the applicant’s detention pending investigation, referring to the gravity of the charges and the risk of his absconding and obstructing justice. No time-limit for detention was fixed.
9. The applicant appealed. He claimed that the prosecutor’s decision of 21 September 2001 lacked justification. He also applied for release, arguing that he had no intention of absconding, had family commitments and a permanent place of residence and a job.
10. On 6 June 2002 the Vakhitovskiy District Court of Kazan rejected the applicant’s appeal and his application for release and upheld the prosecutor’s decision of 21 September 2001. In particular, the court stated the following:
“When deciding to detain [the applicant], [the prosecutor] took into account the gravity of the charges and the fact that [the applicant] might abscond and interfere with the establishment of the truth...
The arguments furnished by [the applicant and his counsel] are not sufficient to refute [the prosecutor’s] finding that [the applicant] might abscond and interfere with establishment of the truth.”
11. On 5 July 2002 the Supreme Court of the Republic of Tatarstan upheld the decision of 6 June 2002.
12. In the meantime, on 28 September 2001 the Prosecutor’s Office indicted the applicant for murder and involvement in a criminal gang. On an unspecified date the applicant was also charged with fraud, extortion and kidnapping.
13. On 19 November 2001 the Prosecutor’s Office extended the applicant’s detention until 20 March 2002. The detention order was issued in respect of seven defendants, including the applicant. Referring to the gravity of the charges, the prosecutor in charge of the investigation alleged that the defendants might abscond or interfere with the investigation. The detention order further indicated that several witnesses, including two of the defendants, had identified the applicant as one of the perpetrators of the crimes under investigation. The applicant did not appeal.
14. On 21 March and 14 June 2002 the Deputy Prosecutor of the Russian Federation extended the applicant’s detention until 4 July and 4 October 2002 respectively. The orders were issued in respect of nine and then twelve defendants, including the applicant, and reiterated verbatim the reasoning previously used to justify keeping the accused in custody. As to the evidence collected in the course of the investigation, the prosecutor referred to numerous witnesses who had testified against the applicant. The applicant did not appeal.
15. On 30 April 2002 the defendants and their lawyers started studying the case file which comprised seventy-two volumes.
16. On 29 August 2002 the Supreme Court of the Republic of Tatarstan further extended the applicant’s detention until 4 January 2003. The court reasoned as follows:
“[The applicant] should remain in custody since he is charged with grave offences and might abscond and threaten the witnesses and other parties involved in the proceedings. Besides, [the applicant] is to study a considerable volume of the case-file materials. In view of the above, the court grants the investigator’s request to extend [the applicant’s] detention.”
17. The applicant appealed, arguing that the investigator had not furnished any evidence to substantiate his allegations that the applicant might abscond or interfere with the administration of justice. He further asked the appeal court to release him and apply any other alternative measure prescribed by law to ensure his presence in court or anticipate his custodial sentence, if any. On 6 November 2002 the Supreme Court of Russia dismissed the applicant’s appeal and upheld the decision of 29 August 2002.
18. On 20 November 2002 the Supreme Court of the Republic of Tatarstan further extended the applicant’s detention pending his study of the case file. No time-limit for the detention period was indicated. The court provided the following justification for its decision:
“[The applicant] should remain in custody since he is charged with grave offences and might abscond or interfere with the administration of justice.”
19. The applicant appealed. Alleging numerous violations of the applicable rules of criminal procedure in the course of his arrest and detention, he asked the appeal court to release him.
20. On 5 February 2003 the Supreme Court of Russia upheld the detention order of 20 November 2002 on appeal. In particular, it noted as follows:
“As [the lower court] indicated, [the applicant] may abscond or interfere with administration of justice and has been charged with grave and serious offences. Accordingly, the [lower] court’s decision to extend the applicant’s detention was justified. As regards [the applicant’s] allegations about violations of rules of criminal procedure... they will be subject to examination in the course of the trial ...”
21. It appears that in 2004 the defendants, including the applicant, and their counsel, completed their study of the case file. According to the Government, on 27 April 2004 the Deputy Prosecutor of the Republic of Tatarstan approved the bill of indictment in respect of the applicant and fifteen other persons and forwarded the case file to the Supreme Court of the Republic of Tatarstan.
22. On 22 July 2004 the Supreme Court of the Republic of Tatarstan reviewed the material in the case file in respect of the sixteen defendants, including the applicant, and scheduled the first hearing for 27 September 2004. The court further decided that the case would be tried by a jury and that fourteen defendants, including the applicant, should remain in custody pending trial. No time-limit for their detention was fixed. When dismissing the defendants’ application for release, the court noted as follows:
“The defendants have been charged with numerous grave and serious offences which might entail a custodial sentence exceeding two years. [The court does not] discern any special exceptional circumstances which would render [the defendants’] release possible. The reasons earlier [indicated by the court] to extend the defendants’ detention, i.e., the risk of absconding, threatening the witnesses and other parties involved in the criminal proceedings or interfering with the administration of justice in any other way, have not ceased to exist.”
23. The applicant appealed. He argued that he had spent over two years and eight months in detention. He asked the court to release him on an undertaking not to leave town or on bail. He further referred to the fact that he had no previous convictions, that he was married and had a minor child and a full-time job. On 7 September 2004 the Supreme Court of Russia dismissed the applicant’s appeal and upheld the decision of 22 July 2004 finding no reason to depart from the lower court’s findings.
24. On 29 October 2004 the Supreme Court of the Republic of Tatarstan extended the detention of fourteen defendants, including the applicant, until 29 January 2005. The applicant argued that he should be released pending trial. He claimed that the gravity of the charges alone could not constitute a sufficient reason for extension of his detention; that he had been detained during a lengthy period; that the prosecution had failed to prove that he might abscond or interfere with the administration of justice; that the court had already examined the materials concerning a number of charges against the defendants; and that the criminal proceedings had been too long. The court dismissed the applicant’s arguments, noting as follows:
“[The defendants’] application for release cannot be granted for the following reasons. They have been charged with grave and serious offences which might entail a custodial sentence exceeding two years. [The court does not] discern any special exceptional circumstances which would render [the defendants’] release possible. The reasons earlier [indicated by the court] to extend the defendants’ detention, i.e., the risk of absconding, threatening the witnesses and other parties involved in the criminal proceedings or interfering with the administration of justice in any other way, have not ceased to exist... The fact that the court had already examined several charges against the defendants cannot be regarded as a sufficient reason to justify their release. Nor is the length of the criminal proceedings a factor to be taken into account when deciding the issue of detention.”
25. On 28 January, 29 April, and 29 July 2005 the Supreme Court of the Republic of Tatarstan extended the pre-trial detention for the applicant and thirteen other defendants until 29 April, 29 July and 29 October 2005 respectively. Each time the court dismissed the defendants’ applications reproducing verbatim its earlier reasoning as follows:
“[The defendants’] application for release cannot be granted for the following reasons. They have been charged with grave and serious offences which might entail a custodial sentence exceeding two years. [The court does not] discern any special exceptional circumstances which would render [the defendants’] release possible. The reasons earlier [indicated by the court] to extend the defendants’ detention, i.e., the risk of absconding, threatening the witnesses and other parties involved in the criminal proceedings or interfering with the administration of justice in any other way, have not ceased to exist... The fact that the court had already examined several charges against the defendants cannot be regarded as a sufficient reason to justify their release. Nor is the length of the criminal proceedings a factor to be taken into account when deciding the issue of detention.”
26. It appears that the applicant did not appeal against the above decisions.
27. On 24 October 2005 the Supreme Court of the Republic of Tatarstan found the applicant guilty as charged and sentenced him to twenty-one years’ imprisonment. On 12 April 2006 the Supreme Court of Russia upheld the applicant’s conviction on appeal.
28. Until 1 July 2002 criminal-law matters were governed by the Code of Criminal Procedure of the Russian Soviet Federalist Socialist Republic (Law of 27 October 1960, “the old CCrP”). From 1 July 2002 the old CCrP was replaced by the Code of Criminal Procedure of the Russian Federation (Law no. 174-FZ of 18 December 2001, “the new CCrP”).
29. The Russian Constitution of 12 December 1993 establishes that a judicial decision is required before a defendant can be detained or his or her detention extended (Article 22). Under the old CCrP, a decision ordering pre-trial detention could be taken by a prosecutor or a court (Articles 11, 89 and 96). The new CCrP requires a judicial decision by a district or town court on a reasoned request by a prosecutor supported by appropriate evidence (Article 108 §§ 1, 3-6).
30. Before 14 March 2001, pre-trial detention was authorised if the accused was charged with a criminal offence carrying a sentence of at least one year’s imprisonment (Article 96). The amendments of 14 March 2001 repealed the provision that permitted defendants to be remanded in custody on the sole ground of the dangerous nature of the criminal offence they had committed. The new CCrP reproduced the amended provisions (Articles 97 § 1 and 108 § 1) and added that a defendant should not be remanded in custody if a less severe preventive measure was available.
31. After arrest the suspect is taken into custody “pending investigation”. The permitted period of detention “pending investigation” may be extended for up to eighteen months in “exceptional circumstances”. No extension beyond eighteen months is possible (Article 97 of the old CCrP, Article 109 § 4 of the new CCrP).
32. Access to the case material is to be granted no later than one month before the expiry of the authorised detention period (Article 97 of the old CCrP, Article 109 § 5 of the new CCrP). If the defendant needs more time to study the case file, a judge, on a request by a prosecutor, may grant an extension of the detention until such time as the file has been read in full and the case sent for trial (Article 97 of the old CCrP, Article 109 § 8 (1) of the new CCrP). Under the old CCrP, such an extension could be granted once only and for no longer than six months. The new CCrP does not set any time-limits in this respect. Once the defendant has finished reading the file, the prosecutor remits the case to the trial court and from that date the detention is classified as “before the court” (or “during the judicial proceedings”).
33. Before 15 June 2001 the old CCrP set no time-limit for detention “during judicial proceedings”. On 15 June 2001 a new Article, 239-1, entered into force which established that the period of detention “during judicial proceedings” could not generally exceed six months from the date the court received the file. However, if there was evidence to show that the defendant’s release might impede a thorough, complete and objective examination of the case, a court could – of its own motion or on a request by a prosecutor – extend the detention by no longer than three months. These provisions did not apply to defendants charged with particularly serious criminal offences. The new CCrP provides that the term of detention “during judicial proceedings” is calculated from the date the court received the file up to the date on which the judgment is given. The period of detention “during judicial proceedings” may not normally exceed six months, but if the case concerns serious or particularly serious criminal offences, the trial court may approve one or more extensions of no longer than three months each (Article 255 §§ 2 and 3).
VIOLATED_ARTICLES: 5


ITEMID: 001-110809
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: CHAMBER
DATE: 2012
DOCNAME: CASE OF GLOTOV v. RUSSIA
IMPORTANCE: 4
CONCLUSION: Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect)
JUDGES: Anatoly Kovler;Elisabeth Steiner;Erik Møse;Julia Laffranque;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska
TEXT: 6. The applicant was born in 1973 and lives in Moscow.
7. From 14 March to 6 October 2005 the applicant was held in remand prison IZ-77/1 in Moscow. He was accommodated in Cell 243 which measured approximately 11 square metres. The cell had one window and the toilet was located inside the cell, separated with a brick partition approximately 1.2 metre in height. It disposed of four sleeping places. Detainees were allowed one hour of outdoor exercise per day.
8. The parties disagreed on the number of inmates in Cell 243.
9. According to the applicant, Cell 243 was constantly overcrowded. It was designed for two inmates but actually housed four persons. He referred to the Court’s findings in respect of the same cell in the case of Starokadomskiy v. Russia (no. 42239/02, §§ 23-24 and 42, 31 July 2008).
10. The Government maintained that the number of detainees in Cell 243 had not exceeded two persons. In support of their position, they enclosed with their observations on the admissibility and merits of the case, a certificate issued by the prison governor on 5 April 2011 and selected pages from the prison population register covering the period between 16 March and 6 October 2005.
11. On 16 January 2012, further to the Court’s request for more detailed factual information on the number of detainees in Cell 243, the Government submitted the following material:
– a certificate issued by the prison governor on 27 December 2011, according to which Cell 243 accommodated two persons during the entire period of the applicant’s detention;
– an undated certificate from the deputy head of the relevant department, according to which there were two detainees in Cell 243;
– every second page from the prison population register covering the period between 14 March and 30 September 2005.
12. On 7 March 2012, in response to the Court’s request for clarifications about the origin of visible corrections of the number of detainees in Cell 243 in the prison population register, the Government submitted that, upon making the enquiries, it had been established that the procedure for filling out the prison population register had been breached which had resulted in “careless filling [out]”, corrections and erasures. The head of the department who was responsible for overseeing the compliance with the procedure could not be disciplined because he had retired in 2006. The Government pointed out that the corrections had not been made “with a purpose to misrepresent reliable information but because of carelessness and inattention of the officers of the pre-trial detention centre”.
VIOLATED_ARTICLES: 3


ITEMID: 001-70628
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: ADMISSIBILITY
DATE: 2005
DOCNAME: KONIBOLOTSKIY v. RUSSIA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Josep Casadevall
TEXT: The applicant, Nikolay Aleksandrovich Konibolotskiy, is a Russian national who was born in 1952 and lives in Kurskaya, a village in the Kurskiy District of the Stavropol Region. The respondent Government were represented by Mr P. A. Laptev, Representative of the Russian Federation at the European Court of Human Rights.
The facts of the case, as submitted by the parties, may be summarised as follows.
On 13 September 1994 the Kurskiy District Court of the Stavropol Region dissolved the applicant’s marriage.
On 11 April 1996 the applicant brought proceedings against his former wife, requesting partition of a house of 64.6 sq. m. total surface and other property acquired before the divorce. On 5 June 1996 the Kurskiy District Court of the Stavropol Region discontinued proceedings in the case because of the withdrawal of the action by the applicant who had reached a settlement agreement with the defendant. The applicant did not appeal but later, on an unspecified date, since the defendant had failed to adhere to the settlement agreement, successfully pursued the supervisory review procedure - an extraordinary remedy provided for by the Russian legislation.
In the course of supervisory review proceedings, on 29 December 1997, the Presidium of the Stavropol Regional Court quashed the decision of 5 June 1996 in view of procedural defects (it had not been explained to the applicant that his withdrawal of the action would deprive him of a right to re-lodge the same action in the future) and ordered a fresh examination of the case by the same District Court.
The examination of the case was then adjourned several times: on 17 February and 15 May 1998 on the defendant’s request; on 23 July 1998 on the applicant’s request and on 17 August 1998 because of the parties’ failure to appear.
On 23 September 1998 the District Court ordered an expert opinion concerning the value of the house. It was obtained on 4 November 1998.
On 12 November 1998 the hearing was adjourned as the parties failed to appear.
On 17 November 1998 the proceedings were suspended due to the applicant’s illness.
On 13 January 1999 the Kurskiy District Court rejected the applicant’s claim concerning the partition of the house and awarded a sum corresponding to his share in the house, to be paid by the defendant. Following the applicant’s appeal, on 14 May 1999, the Stavropol Regional Court quashed the judgment in part concerning the division of the house, pointing out that the first instance court should have examined the technical possibility of the physical partition of the house, after obtaining an expert opinion if necessary, and ordered a fresh examination of the issue.
On 21 July 1999 the District Court ordered another expert opinion concerning the value of the disputed house and repair works made before the dissolution of the marriage. The expert opinion was obtained on 28 March 2000.
On 15 April and 23 May 2000 the examination of the case was adjourned because of the parties’ failure to appear.
On 11 July 2000 the District Court awarded the applicant compensation for the repairs, rejecting the rest of his claims. On 25 December 2000 the applicant requested the court to restore the time-limit for appealing against the judgment. On 27 December 2000 the court granted the request. On 30 March 2001 the Stavropol Regional Court quashed the judgment of 11 July 2000, as it lacked reasons and references to material and procedural law, and ordered a fresh examination of the case by the same court.
On 20 April and 11 May 2001 the hearing was adjourned due to the parties’ failure to appear.
On 29 May 2001 the District Court ordered one more expert opinion, asking whether it would be possible physically to divide the house, taking into account the applicant’s entitlement to half of the money spent on its repairs. The expert opinion was obtained in June 2001.
On 6 July 2001 the court found that the partition of the house was impossible and ordered the defendant to pay the applicant pecuniary compensation. The applicant did not appeal and the judgment became final on 17 July 2001.
On 3 September 2001 the bailiff’s service found that the defendant had no property which could be seized. On 14 September 2001 the enforcement proceedings were closed because of the transfer of the writs of execution to a local social security authority for deductions to be made from the defendant’s pension. There is a certificate of a local pension fund dated 25 December 2001 confirming that regular deductions were made from the defendant’s pension by way of execution of the judgment.
As the deductions from the defendant’s pension were so small as to make the prospect of the prompt execution of the judgment unrealistic, on 24 January 2002 the applicant attempted to bring a new action against the defendant, again requesting the partition of the house. On 18 February 2002 the Justice of the Peace of the First Court Circuit of the Kurskiy District of the Stavropol Region refused to examine the action, because it raised an issue substantially the same as the one which had been decided by the judgment of 6 July 2001. On 25 April 2002 the Kurskiy District Court of the Stavropol Region upheld this decision on appeal.


ITEMID: 001-24075
LANGUAGEISOCODE: ENG
RESPONDENT: AUT
BRANCH: ADMISSIBILITY
DATE: 2000
DOCNAME: SCHIMANEK v. AUSTRIA
IMPORTANCE: 3
CONCLUSION: Inadmissible
JUDGES: Elisabeth Palm;Gaukur Jörundsson
TEXT: The applicant is an Austrian national, born in 1963 and living in Vienna.
A.
On 25 January 1992 the applicant was arrested on the suspicion of having performed activities inspired by National Socialist ideas (Betätigung im nationalsozialistischen Sinn). Upon solemn promise (gegen Gelöbnis) to refrain from such activities he was released on 16 April 1992. The Public Prosecutor’s Office (Staatsanwaltschaft) preferred the indictment (Anklageschrift) on 23 June 1994, charging the applicant with offences under section 3a (2) of the National Socialism Prohibition Act (the Prohibition Act - Verbotsgesetz). From the beginning the proceedings received extensive press coverage.
On 27 September 1994 the applicant was questioned as a witness in criminal proceedings brought against G.K., who was also charged with offences under section 3a (2) of the Prohibition Act. Following his testimony, the presiding judge ordered the applicant’s arrest on the suspicion of having given false evidence.
On 20 March 1995 the trial against the applicant started before the Assize Court (Geschwornengericht) at the Vienna Regional Criminal Court (Landesgericht für Strafsachen). The presiding judge was the same that had conducted the proceedings against G.K. and had ordered the applicant’s arrest during the hearing on 27 September 1994.
Trial hearings were held on nine days. As of the third day, evidence was taken by hearing witnesses, reading out documents and showing video tapes. On the fifth day the applicant’s defence counsel, who was at that stage given the opportunity to make an extensive comment on the evidence taken so far, expressly appreciated the fair and objective conduct of the proceedings. When on the eighth hearing day personal letters of the applicant and his father were read out neither the applicant nor his defence counsel opposed this manner of taking evidence.
On 31 March 1995 the Assize Court convicted the applicant under Section 3a (2) of the Prohibition Act (Verbotsgesetz) and sentenced him to fifteen years’ imprisonment.
The jury found that the applicant had as leader of an association (Kameradschaft) amongst other activities recruited new members, organised special events where the members of the association were familiarised with a historical view glorifying the dictators of the Third Reich, its army, the SA and the SS, denying at the same time the systematic killing by use of toxic gas under the National Socialist regime and transmitting National Socialist ideology to the members and that he had organised the distribution of pamphlets with similar contents. Further, the jury found that the applicant had organised as of the end of the year 1987 paramilitary training camps (Wehrsportübung) by mobilising members in uniform of different associations organised in the extreme right-wing “Volkstreue Ausserparlamentarische Opposition” (VAPO) with a view to strengthen the feeling of solidarity among the participants, their tactical preparation for violent conflicts and the setting-up of a military cadre which could impose if necessary by the use of force the aims of the VAPO, namely the seizure of power in Austria and the simultaneous incorporation of Austria into an Enlarged Germany (Grossdeutschland).
In imposing the sentence, the Assize Court considered the applicant’s confession as a mitigating circumstance while his leading position in the above organisations, the multitude of his activities and the indoctrination of a great number of young people with National Socialist ideas were taken into account as aggravating circumstances.
On 16 May 1995 the applicant filed a plea of nullity and an appeal against sentence (Nichtigkeitsbeschwerde und Berufung). In his plea of nullity he complained in particular that the questions put to the jury were not duly formulated and that the legal instructions given to the jury were incorrect.
On 22 November 1995 the Supreme Court (Oberster Gerichtshof) confirmed the conviction while reducing the sentence to eight years’ imprisonment.
The Supreme Court found that the Assize Court had not duly weighed mitigating and aggravating circumstances. In particular, it had not attached sufficient weight to the applicant’s confession and had failed to take into account that the applicant had renounced the incriminated activities in 1992. Moreover, he had clearly placed himself at a distance from his former activities during the trial. Having regard to the recent conviction under section 3a (2) of the Prohibition Act of G.K. who had been the founder and leader of VAPO and was sentenced to eleven years’ imprisonment, a sentence of fifteen years’ imprisonment for the applicant appeared disproportionate. Finally, the Supreme Court, referring to section 41 § 1 of the Criminal Code (Strafgesetzbuch) found that the conditions for an extraordinary mitigation of sentence (ausserordentliche Strafmilderung) were met, i.e. a sentence below of the statupplicant’s guilt.
B. Relevant domestic law
Section 3a (2) of the National Socialism Prohibition Act, as amended in 1992 by Federal Law Gazette (Bundesgesetzblatt) no. 148/1992, reads as follows:
“The following persons shall be guilty of a criminal offence and shall be liable to ten to twenty years’ imprisonment or, in the event that the perpetrator or the activity is deemed to be particularly dangerous, life imprisonment:
1. ...
2. Whosoever founds an association whose purpose, through its members’ activities inspired by National Socialist ideas, is to undermine the autonomy and independence of the Austrian Republic or to subvert public order and the reconstruction of Austria, or plays a leading role in an association of that kind.”
Before the amendment, which entered into force on 20 March 1992, the offence carried life imprisonment.
Section 41 § 1 of the Criminal Code provides that if the mitigating circumstances clearly outweigh the aggravating circumstances and if there are sufficient reasons to believe that the perpetrator will refrain from committing further offences in case a sentence below the statutory level of punishment is imposed, the court may hand down a sentence of not less than one years’ imprisonment if the offence is punishable with life imprisonment or with ten to twenty years’ imprisonment or life imprisonment.


ITEMID: 001-81797
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: CHAMBER
DATE: 2007
DOCNAME: CASE OF BAKHAREV v. RUSSIA
IMPORTANCE: 4
CONCLUSION: Violation of Art. 6;Violation of P1-1
JUDGES: Peer Lorenzen
TEXT: 4. The applicant was born in 1954 and lives in Barnaul, the Altay Region.
5. On an unspecified date in 2002 the applicant, acting as a participant of rescue operation on the site of the Chernobyl nuclear disaster in the 1980s, applied to a local council, requesting them to grant him a flat.
6. Having faced a refusal, the applicant filed a suit in court.
7. By judgment of the Industrialnyy District Court of Barnaul of 14 October 2002 the local authorities were ordered to grant the applicant a flat of at least 18 square metres. It became final on 27 November 2002.
8. On 16 December 2002 the writ of execution was issued and sent to the bailiffs.
9. It appears that on 13 January 2005 the local authorities, acting in agreement with the applicant and with his financial participation, purchased a three-room flat of 28 square metres for the applicant.
10. The contract has been registered on 14 January 2005.
11. Four days later, on 18 January 2005, the local authorities transferred the money for the flat to the seller's account.
12. According to the Government, the judgment of 14 October 2002 should be considered as fully enforced on the latter date.
VIOLATED_ARTICLES: 6


ITEMID: 001-57808
LANGUAGEISOCODE: ENG
RESPONDENT: AUT
BRANCH: CHAMBER
DATE: 1993
DOCNAME: CASE OF FEY v. AUSTRIA
IMPORTANCE: 3
CONCLUSION: No violation of Art. 6-1
JUDGES: John Freeland
TEXT: 6. The applicant, a German national residing at Geeste in Germany, is a pensioner.
7. From 17 to 27 January 1988 he rented a room in Mayrhofen in Austria from a Mrs Rosa Kröll. During this period he told her that his wife was very ill and was undergoing treatment in an Innsbruck hospital. He also claimed that he was expecting to receive payments under a pension scheme in Germany. As a result Mrs Kröll handed over to him 2,500 schillings and waived the rent of 1,500 schillings.
Purportedly in the expectation of receiving the above-mentioned payments, the applicant opened an account at a bank in Mayrhofen on 19 January 1988 and, on 22 January, Mrs Kröll gave him a further 600 schillings.
8. On 27 January 1988, Mrs Kröll reported the matter to the police. The Innsbruck Public Prosecutor’s Office (Staatsanwaltschaft) asked, on 8 February 1988, the investigating judge of the Innsbruck Regional Court (Landesgericht) to institute a preliminary investigation concerning the applicant on suspicion of fraud as a recidivist offender. In addition, the prosecutor requested the judge to order his detention on remand on the ground that there was a risk of his absconding.
The judge granted these requests on 9 February 1988. Prior to this, the applicant had been detained since 4 February, pending extradition to Germany. On 10 February he was questioned by the investigating judge.
9. The latter sent, on 12 February 1988, a rogatory letter (Rechtshilfeersuchen) to the Zell am Ziller District Court (Bezirksgericht) asking it to put some specific questions to Mrs Kröll as a witness. District Court Judge, Mrs Andrea Kohlegger, did so on 25 February.
10. On 1 March 1988, the Innsbruck Public Prosecutor’s Office dropped one of the fraud charges against the applicant. As a result, the Regional Court no longer had jurisdiction. Accordingly, the prosecutor asked to have the case, which now concerned only the alleged fraud against Mrs Kröll, transmitted to the District Court which had jurisdiction to deal with offences of lesser gravity, that is, according to Article 9 of the Code of Criminal Procedure (Strafprozeßordnung), offences punishable by a fine or a term of imprisonment not exceeding six months. Moreover, on the same date, the prosecutor, in pursuance of Article 451 (1) of the Code, called for the applicant’s conviction on charges of fraud.
11. At the time when the case was referred to the District Court the case-file contained mainly the following items:
- criminal information to the Mayrhofen police;
- the applicant’s criminal record in Germany;
- the order made by the Regional Court’s investigating judge for the applicant’s detention on remand;
- a record of the investigating judge’s interrogation of the applicant;
- a record of District Court Judge, Mrs Kohlegger’s interrogation of witness, Mrs Kröll;
- letters from the applicant to the prosecution, asking it to drop the charges, and to the Regional Court, complaining about his detention on remand;
- a note to the effect that the applicant had withdrawn his complaint against detention.
12. During the ensuing period, Judge Kohlegger took the following steps in the applicant’s case:
In a letter to the Osnabrück Execution of Sentence Chamber (Strafvollstreckungskammer) in Germany, she enquired why a prison sentence imposed on the applicant had been partly suspended. She received a reply on 1 April 1988.
She sent the case-file to the Innsbruck District Court together with a rogatory letter asking it to question the applicant in order to establish whether his expectations as regards the pension payments allegedly due in January 1988, had been justified and to obtain details of his pension or any other revenue from insurance policies.
On 17 March 1988, she telephoned the Mayrhofen bank to establish whether any payments had been entered on the account opened by the applicant (see paragraph 7 above); by letter of the same date the bank replied that no payment had so far been recorded.
In addition, she telephoned the Provincial Insurance Companies of Hannover and of Oldenburg-Bremen (Germany) in order to find out whether the applicant had ever applied for or received a pension. According to a note in the case-file, prepared by Judge Kohlegger on 18 March 1988, the first of these companies had replied that, under the reference number which the applicant had indicated, a pension had never been requested by him and that no pension benefits had been paid to him; the other company had stated that he had not been granted a pension.
On 18 March 1988, she set down the trial hearing for 24 March (Article 451 (4) of the Code of Criminal Procedure).
13. On the latter date a hearing was held by the Zell am Ziller District Court, with Judge Kohlegger sitting as a single judge. The District Prosecutor (Bezirksanwalt) was present, but the applicant’s lawyer at the time did not appear although he had been summoned. The court heard the applicant first, who claimed that he was innocent. It then heard Mrs Kröll as a witness and a police officer replacing a colleague who had visited her house after the applicant’s arrest. Various documents were exhibited (dargetan), including:
- the complaint to the police;
- the results of the police investigations in the case;
- the applicant’s criminal record;
- the case-file of the Regional Court (see paragraph 11 above);
- the information provided by the Mayrhofen bank and the two German insurance companies and a letter from a third such company.
After the court had finished taking evidence, the prosecutor invited it to find the applicant guilty. The applicant asked the court to ascertain that, on 9 April 1987, he had applied to a German insurance company for a pension. The court dismissed this request, finding that the facts in the case were sufficiently clear.
14. By judgment of 24 March 1988, the District Court acquitted the applicant of the fraud charge concerning the 600 schillings which he had received from Mrs Kröll on 22 January 1988 but convicted him of having fraudulently induced her to hand over 2,500 schillings to him and to waive the rent of 1,500 schillings; it sentenced him to three months’ imprisonment and ordered him to pay Mrs Kröll 4,000 schillings. The periods of detention pending extradition and the trial were deducted from the sentence.
The judgment, which was signed by Judge Kohlegger, was founded inter alia on Mrs Kröll’s testimony as well as the information obtained from the bank and the insurance companies.
15. The applicant appealed against his conviction and sentence to the Regional Court. He complained, inter alia, that in the proceedings before the District Court, the case had been investigated and tried by the same person.
16. On 20 April 1988 the Review Chamber (Ratskammer) of the Regional Court dismissed several requests for release submitted by the applicant on 6, 12 and 15 March.
17. In a judgment of 13 May 1988, the Regional Court, composed of three members who had previously taken the above-mentioned decision of 20 April 1988, dismissed the appeal. As to his complaint described in paragraph 15 above, the judgment stated:
"As a reply thereto, reference should be made to the prevailing legal opinion derived from Articles 451 and 452 of the Code of Criminal Procedure, according to which the trial judge in District Court proceedings may also undertake preliminary inquiries and a judge who has carried out such inquiries will therefore not be excluded from the trial ... .
Equally, if a judge acts in a criminal case as a judge ... under a rogatory letter, this will not prevent him from participating at the trial ... . It is not necessary for the [Regional Court] in the present case to make a thorough examination of the extent to which this legal opinion, which is generally applied, corresponds to Article 6 (art. 6) of the Convention ..., since the accused, who became aware of the (alleged) ground of nullity at the latest at the beginning of the trial, did not ... immediately raise this ground before the Zell am Ziller District Court."
18. In order to procure the necessary evidence for the institution of criminal proceedings or for the closing of the file (Zurücklegung) on a complaint, the public prosecutor may have preliminary inquiries (Vorerhebungen) carried out by the investigating judge, the District Courts and the police authorities (Article 88 (1) of the Code of Criminal Procedure).
Where the public prosecutor is satisfied that there are sufficient grounds for bringing a criminal prosecution, he shall either apply for the institution of a preliminary investigation (Voruntersuchung) or file a formal accusation (Anklageschrift, Article 90 (1)). However, in District Court proceedings there is no formal process of investigation and no special procedure of committal for trial: all that is required is a written or oral application from the District Prosecutor seeking the imposition of a penalty on the person concerned (Antrag auf gesetzliche Bestrafung, Article 451 (1)).
19. Pursuant to Article 451 (1) and (4), taken together, the District Court may carry out preliminary inquiries, but not formal preliminary investigations like the Regional Court. When undertaking preliminary inquiries a District Court judge must in principle observe the same rules as those that apply to an investigating judge of the Regional Court during preliminary investigations. However, according to Article 452, which sets out exceptions to this principle, the District Court judge has narrower powers with respect to such matters as pre-trial detention, arrest and search for documentary evidence.
Under Article 194 (1) of the Code of Criminal Procedure, the District Court judge may order the release of a person held on remand, subject to agreement with the District Prosecutor that the grounds for detention have ceased to exist.
The District Court judge shall set a date for the hearing after such preliminary inquiries as may be necessary have been made (Article 451 (4)).
20. Article 68 (2) of the Code of Criminal Procedure, which provides that an investigating judge may not participate in the trial of the case, does not apply to District Court proceedings. In such proceedings, preliminary inquiries are, according to established court practice, carried out by the trial judge.
21. A judge who has acted under a rogatory letter in a case, but not as an investigating judge, is not thereby excluded from trying the same case (see the collection of Supreme Court decisions SSt 30/50).
NON_VIOLATED_ARTICLES: 6
NON_VIOLATED_PARAGRAPHS: 6-1