ITEMID: 001-69634
LANGUAGEISOCODE: ENG
RESPONDENT: HRV
BRANCH: CHAMBER
DATE: 2005
DOCNAME: CASE OF MIHAJLOVIC v. CROATIA
IMPORTANCE: 4
CONCLUSION: Violation of Art. 6-1;Not necessary to examine Art. 13;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings
JUDGES: Christos Rozakis
TEXT: 6. The applicants were born in 1932 and 1958, respectively, and live in Hrgovljani, Croatia.
7. On 12 February 1992 the applicants' house in Hrgovljani was blown up by unknown perpetrators.
8. On 9 February 1995 the applicants instituted civil proceedings in the Zagreb Municipal Court (Općinski sud u Zagrebu), seeking damages for their destroyed property from the State.
9. On 17 January 1996 Parliament introduced an amendment to the Civil Obligations Act (“the 1996 Amendment”) which provided that all proceedings concerning actions for damages resulting from terrorist acts were to be stayed pending the enactment of new legislation. The new legislation was to be enacted within six months.
10. On 5 February 1996 the Zagreb Municipal Court stayed the proceedings pursuant to the above legislation.
11. On 14 July 2003 Parliament introduced the Act on Liability for Damage Resulting from Terrorist Acts and Public Demonstrations (“the 2003 Liability Act”).
12. On 23 September 2003 the Zagreb Municipal Court resumed the proceedings.
13. On 5 May 2004 the court dismissed the applicants' claim finding that it no longer had jurisdiction in the matter.
14. On 18 June 2004 the applicants appealed against the above decision. It appears that the proceedings are still pending before the second instance court.
15. The relevant part of the Civil Obligations Act (Zakon o obveznim odnosima – Official Gazette, nos. 53/91, 73/91, 3/94, 7/96 and 112/99) provided as follows:
“Liability for loss caused by death or bodily injury or by damage or destruction of another's property, when it results from acts of violence or terror or from public demonstrations or manifestations, lies with the ... authority whose officers were under a duty, according to the laws in force, to prevent such loss.”
16. The relevant part of the Act Amending the Civil Obligations Act (Zakon o izmjeni Zakona o obveznim odnosima – Official Gazette no. 7/1996; “the 1996 Amendment”) reads as follows:
“Section 180 of the Civil Obligations Act (the Official Gazette nos. 53/91, 73/91 and 3/94) shall be repealed.”
“Proceedings for damages instituted under section 180 of the Civil Obligations Act shall be stayed.
The proceedings referred to in sub-section 1 of this section shall be resumed after the enactment of special legislation governing liability for damage resulting from terrorist acts.”
17. The relevant part of section 63 of the Constitutional Act on the Constitutional Court (Ustavni zakon o Ustavnom sudu Republike Hrvatske, Official Gazette no. 49/2002; “the Constitutional Court Act”) reads as follows:
“(1) The Constitutional Court shall examine a constitutional complaint even before all legal remedies have been exhausted in cases when a competent court has not decided within a reasonable time a claim concerning the applicant's rights and obligations or a criminal charge against him ...
(2) If the constitutional complaint ... under paragraph 1 of this Section is accepted, the Constitutional Court shall determine a time-limit within which a competent court shall decide the case on the merits...
(3) In a decision under paragraph 2 of this Article, the Constitutional Court shall fix appropriate compensation for the applicant in respect of the violation found concerning his constitutional rights ... The compensation shall be paid from the State budget within a term of three months from the date when the party lodged a request for its payment.”
18. Article 29 § 1 of the Constitution (Ustav Republike Hrvatske, Official Gazette no. 41/2001) reads as follows:
“ In the determination of his rights and obligations or of any criminal charge against him, everyone is entitled to a fair hearing within a reasonable time by an independent and impartial court established by law.”
19. The Act on Liability for Damage Resulting from Terrorist Acts and Public Demonstrations (Zakon o odgovornosti za štetu nastalu uslijed terorističkih akata i javnih demonstracija – Official Gazette no. 117/2003; “the 2003 Liability Act”) provides that all compensation for damage to property resulting from terrorist acts is to be sought under the Reconstruction Act. Section 10 provides that all proceedings stayed pursuant to the 1996 Amendment are to be resumed.
20. The Reconstruction Act (Zakon o obnovi – Official Gazette nos. 24/96, 54/96, 87/96 and 57/00) provides that the State shall grant reconstruction assistance to the owners of property damaged during the war. Any requests in this respect are to be filed with the competent administrative authority.
21. On 24 March 2004 the Constitutional Court gave a decision no. U-III-829/2004 in the case of Mr N., who had filed a constitutional complaint under Article 63 of the 2002 Constitutional Court Act, in connection with Article 29 § 1 of the Constitution. He complained about the length of the proceedings and lack of access to a court because his action had been stayed, due to legislative action, before the domestic courts over a long period of time. In this decision, the Constitutional Court established that there had been a violation of the constitutional rights to a trial within a reasonable time and to access to court, ordered the domestic court to render a decision in Mr N.'s case within one year, and awarded him compensation.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-23077
LANGUAGEISOCODE: ENG
RESPONDENT: SWE
BRANCH: ADMISSIBILITY
DATE: 2003
DOCNAME: PAHVERK v. SWEDEN
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Matti Pellonpää
TEXT: The applicant, Väinö Pahverk, is a Swedish national, who was born in 1932 and lives in Tumba. He was represented before the Court by Mr U. Jacobson, a lawyer practising in Stockholm. The respondent Government were represented by Ms E. Jagander, Ministry for Foreign Affairs.
The facts of the case, as submitted by the parties, may be summarised as follows.
Following the applicant’s laryngectomy operation in February 1989, at which his cancerous larynx was removed, the Social Insurance Office (försäkringskassan; hereinafter “the Office”) of the County of Stockholm granted him disability benefits under the Social Insurance Act (Lagen om allmän försäkring, 1962:381; hereinafter “the 1962 Act”) amounting to 65% of a basic amount geared to the price index (basbelopp).
On 9 September 1992 the Office reviewed the applicant’s eligibility for disability benefits and decided that such payments should be discontinued as he had retired from work and no longer had needs or additional costs which entitled him to further benefits. The applicant requested the Office to review its decision under chapter 20, section 10 a of the 1962 Act. Attaching a list of alleged additional costs, he claimed that the decision of 9 September 1992 had been based on incomplete information.
On 10 February 1993 the Office, having regard to the applicant’s submissions, changed its earlier decision and granted the applicant disability benefits amounting to 36% of the basic amount. In an attached document, the Office indicated which additional costs had been accepted and which ones had not. In regard to several items, it also stated summary reasons for its decision.
The applicant appealed to the County Administrative Court (länsrätten) of the County of Stockholm, requesting that the benefits be fixed at a higher percentage of the basic amount. In substance, he maintained what he had submitted to the Office.
By a judgment of 15 February 1994 the County Administrative Court rejected the appeal, subscribing to the reasons given by the Office. The court did not hold an oral hearing, nor did the applicant request one.
On 11 March 1994 the applicant appealed to the Administrative Court of Appeal (kammarrätten) in Stockholm, essentially maintaining his previous submissions on additional costs and complaining that the Office and the County Administrative Court had failed to give reasons for their decisions. He completed his appeal on 17 October 1994, submitting further arguments in regard to his costs. At the end of that document, the following handwritten note had been added: “P.S. Requesting an oral hearing.” No reasons for the request were given.
On 12 April 1995 the appellate court rejected the request for an oral hearing. After having restated section 9 of the Administrative Court Procedure Act (Förvaltningsprocesslagen, 1971:291; hereinafter ”the 1971 Act”; see further below), the court gave the following reasons:
“Having regard to the subject-matter at issue and the information that has come to hand in the case, [the court] finds that an oral hearing is unnecessary and rejects the request to that effect. ... [The applicant] is invited to state the further circumstances he wishes to invoke and submit his final written observations in the case within two weeks after having been notified of this decision.
The case can be determined notwithstanding a failure to submit such written observations.”
The applicant reiterated his request for an oral hearing on 17 May 1995 stating that it was necessary in order to “clarify circumstances relating to the subject-matter of importance to the outcome of the case”.
By a judgment of 10 January 1996 the Administrative Court of Appeal rejected the applicant’s appeal and his renewed request for an oral hearing. It stated that it shared the conclusion reached by the lower instances that the applicant’s needs and additional costs were not such that he was entitled to higher disability benefits than had already been granted.
The applicant appealed to the Supreme Administrative Court (Regeringsrätten). He complained about the lack of oral hearings in the lower courts and asked the Supreme Administrative Court to hold one. In those respects, he claimed that the case had not been adequately investigated.
By a letter of 13 February 1996 the court informed the applicant that it normally did not hold oral hearings. He was given the opportunity to submit further observations in writing. He made such submissions on 19 February 1996 repeating, in regard to the oral-hearing issue, that a hearing had been necessary in order clarify circumstances relating to the subject-matter of the case.
On 18 December 1997 the Supreme Administrative Court refused the applicant leave to appeal.
According to chapter 9, section 2 of the 1962 Act, a person who is ill or handicapped is entitled to disability benefits, provided that, before reaching the age of 65, he or she has become functionally impaired for a considerable time and to such a degree that he or she needs time-consuming assistance from another person in everyday life or continuing assistance in order to be gainfully employed or otherwise has considerable extra expenses. The total need of support and assistance determines the eligibility for disability benefits and the amount of compensation. It is thus necessary to look at the whole situation of the person in question and to add together the need for different types of assistance and the extra expenses.
A decision by the Social Insurance Office under the 1962 Act may be appealed against to the County Administrative Court and from there on to the Administrative Court of Appeal and the Supreme Administrative Court. Appeals may be made against the Office’s ordinary decision or a decision upon review under chapter 20, section 10 a of the 1962 Act.
The latter provision enables the Office to change a decision it has previously taken in order to rectify certain obvious defects of that decision, provided that it has not already been reviewed by a court. Thus, the Office must change its earlier decision if it contains a writing error, miscalculation or similar mistake or if it is incorrect due to it being based on obviously incorrect or incomplete information or an obviously incorrect application of the law or other similar reason. A decision is to be changed under this provision even if a request to that effect has not been made by the individual concerned.
The procedure in the administrative courts is governed by the provisions of the 1971 Act. Section 9 provides:
“The proceedings are in writing.
An oral hearing may be held in regard to a certain issue, when there is reason to assume that that would be to the benefit of the proceedings or the speedy determination of the case.
In the Administrative Court of Appeal and the County Administrative Court an oral hearing shall be held if requested by an individual party to the proceedings, unless it is unnecessary or there are particular reasons against holding a hearing.”
The possibility for an individual party to obtain an oral hearing on request under those circumstances is not available in the proceedings before the Supreme Administrative Court.
According to the preparatory documents to the 1971 Act, an oral hearing can be a valuable complement to the written proceedings and may benefit the examination of a case in two situations in particular: firstly, when it is necessary to hear a witness, an expert or a party or when it is difficult for a party to present the case in writing and, secondly, when different positions in the case need to be sorted out in order to eliminate unnecessary or pointless issues of dispute. In the latter case, the oral hearing takes on a preparatory character. It was stressed, however, that an oral hearing should not to be seen as an alternative to the written procedure but as a complement to it (see Government Bill 1971:30, p. 535).
It was further stated, in respect of the third paragraph of section 9, that a party’s request for an oral hearing should be given great consideration. However, such a request should not have a decisive influence on the matter, as the question whether an oral hearing is necessary is to be determined primarily on the basis of the available information in the case. Still, other circumstances may be of relevance, for instance the importance for the party of the matter at stake or the possibility that an oral hearing could enhance the party’s understanding of a future decision in the case. Nevertheless, if the case is of a trivial character or the costs of an oral hearing would be disproportionate to the values at stake in the case, there could be reason not to hold an oral hearing (p. 537).


ITEMID: 001-111526
LANGUAGEISOCODE: ENG
RESPONDENT: AUT
BRANCH: CHAMBER
DATE: 2012
DOCNAME: CASE OF KRONE VERLAG GMBH v. AUSTRIA
IMPORTANCE: 3
CONCLUSION: No violation of Article 10 - Freedom of expression -{General}
JUDGES: Anatoly Kovler;Elisabeth Steiner;Erik Møse;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska
TEXT: 5. The applicant company, Krone Verlag GmbH & Co KG, is the owner and publisher of the daily newspaper Kronen Zeitung.
6. In 1999 E.R. and U.W., the parents of Christian W., dissolved their common household and concluded a provisional agreement on the custody of Christian under which sole custody was granted to E.R., while his brother stayed with U.W. On 13 February 2001 U.W. asked for custody to be withdrawn from E.R. and transferred to him.
7. On 22 February 2001 E.R. and U.W. agreed that pending the outcome of an expert report custody be provisionally transferred to U.W. (vorläufige Obsorge) and that for the time being Christian should live with U.W., his father.
8. It appears that subsequently U.W. hindered contact between Christian and E.R. and, in June 2002, moved to Sweden. Thereupon, by an interlocutory decision (einstweilige Verfügung) of 26 July 2002, custody of Christian was transferred back to E.R.
9. U.W. was ordered to hand Christian over to E.R. immediately or to take him back to Austria before 5 August 2002. That order was confirmed on appeal on 12 September 2002 and became final.
10. Thereupon E.R. travelled to Sweden to have that decision enforced. U.W. proposed to E.R. that they enter into an agreement on custody of Christian, and E.R. also agreed to staying in Sweden. However, no such agreement was finally reached. After E.R. had settled in Sweden and found employment there, U.W., together with Christian, left Sweden for Austria.
11. On 4 November 2002, pending the outcome of the custody proceedings, custody was temporarily transferred to the Salzburg Youth Welfare Office. On 23 December 2003 the court dismissed U.W.’s request for custody to be withdrawn from E.R. and transferred to him. The decision was declared immediately enforceable.
12. Subsequently, various attempts to enforce that decision were undertaken. The Austrian newspapers reported on these events because U.W. kept them regularly informed and sought publicity.
13. The first attempt at enforcement, on 23 December 2003, failed because U.W. and Christian went into hiding. U.W. had informed the media of this step in advance. Some time later they returned. In order to enforce the custody decision the competent court scheduled a hearing for 15 January 2004 in the course of which Christian was to be handed over to E.R. U.W. failed to appear at the hearing.
14. Thereupon the judge ordered that Christian be brought before the court by force (zwangsweise Vorführung).
15. When that decision had to be enforced by court officers Christian barricaded himself in his elementary school and, since the police officers who intervened decided not to use physical force on the premises of the school, this attempt also failed. These events were also widely covered by the media because U.W. had informed them in advance.
16. After further unsuccessful attempts the rural police (Gendarmerie) were informed on 26 January 2004 that Christian was at his father’s house. Court officers sent to the house noted, however, that Christian was not in the house but, together with a babysitter, in a car in front of it. The officers tried to take hold of Christian but he cried and resisted. These scenes were again the subject of widespread media coverage because they were observed and photographed by several journalists, who had been informed and had hurried to the spot.
17. In order to establish whether Christian had suffered injuries during the attempt to enforce the court order, U.W. took him to the Salzburg hospital. On 28 January 2004, by means of a diversion manoeuvre, U.W. and Christian were separated and on the same day Christian was handed over to his mother, E.R., on the premises of the hospital. E.R. and Christian have been living in Sweden since that time. This final phase of the events was also widely reported on in the media.
18. On 7 July 2004 Christian W., represented by his mother, brought proceedings under Sections 7 and 8a of the Media Act against the applicant company, seeking damages and publication of the ensuing judgment, claiming that a series of articles on the above-mentioned events published by the applicant company between 7 January and 16 February 2004 and which contained a detailed description of the events, giving his full name and illustrated by pictures of him, had breached his rights under those provisions.
19. He argued that the reporting on him had interfered with his strictly private life in a manner likely to expose and compromise him in public. Moreover, the articles constituted a breach of section 7a of the Media Act, which prohibited reporting on the victim of a crime in a manner which made him or her recognisable in public; that was only allowed if the importance of the offence or the persons implicated meant that there was a preponderant public interest in the information. Both applications were lodged with the Vienna Regional Criminal Court.
20. On 19 October 2004 the Regional Court gave a detailed judgment in the case, which referred to the following articles published in the applicant company’s newspaper and summed up by the Regional Court as follows:
“(1) 7 January 2004
The heading ‘Missing father returns home with his two boys’, with a picture of Christian. According to the report, the child’s father returned from holiday with Christian and his brother and had to go to the police because the boy was being forced against his wishes to move in with his mother following an inhuman court decision in the context of a divorce battle.
(2) 8 January 2004
The heading ‘Family drama: Christian needs peace at last’, accompanied by a picture of the child. The report describes a failed attempt to take the boy to Sweden and quotes the head teacher of his primary school as saying that Christian suffers from anxiety. A large number of people, some of whom have signed a petition, are reported to be campaigning for Christian to remain with his father.
(3) 16 January 2004
(a) On the front page, the heading ‘My best friend is my dog’. Underneath is a picture of Christian with his dog and text stating that the child does not wish to go to his mother.
(b) The heading ‘What’s going on here is inhuman’, with two photographs of Christian. According to this article, five police officers entered the primary school in order to fetch the boy, who refused to go with them. The head teacher, some parents and classmates are reported as saying that what happened was inhuman.
(4) 17 January 2004
The heading ‘Mad scramble for 8-year-old’, with a picture of Christian. The report states that several different people want the child, but no one has asked his opinion, resulting in an inhuman tug-of-war which is already affecting the child psychologically. The article further reports that a bailiff went to the child’s father’s flat but found no one at home.
(5) 27 January 2004
(a) On the front page, the heading ‘Christian’s battle for his home’, with a picture of the plaintiff showing him grimacing as he resists being taken (into the police car) by the bailiff, while his brother tries to obstruct the bailiff.
(b) The heading ‘You have no idea what you’re doing to the child’, with two more pictures. The article describes the child being taken from the babysitter’s car to the police car. It likens the scene to something from a distant dictatorship, with two bailiffs trying to tear the young plaintiff away from his familiar surroundings by brute force, against his will and despite his cries for help. Neighbours and friends of the family are reported as crying with rage and directing abuse at the court officials. The plaintiff reportedly sustained a serious injury to his spine at the hands of the bailiffs and had to be taken to hospital.
(6) 28 January 2004
(a) On the front page, the heading ‘The whole of Salzburg up in arms’, accompanied by a photograph of the child lying in a hospital bed wearing a surgical collar. According to the article, the child was injured by the bailiffs’ rough treatment, and everyone was appalled and angered.
(b) The heading ‘Bailiff pursues 8-year-old right into hospital’, with three pictures of the plaintiff, one showing him on a stretcher, one of him grimacing in pain in the arms of the bailiff while his brother tries to obstruct the latter, and a close-up of the child, again grimacing in pain, next to the bailiff and the car. The article also details rough treatment by the bailiffs, reportedly causing injury to the child, who is said to have complained of neck pains and to have told reporters how he had been punched in the back of the neck by one of the bailiffs. The doctor treating him is reported to have fitted a surgical collar.
(c) The heading ‘Cries for help rang out in the night’, again with pictures of the child and reports on the public’s reaction to the bailiffs’ methods;
(d) The heading ‘All for the good of the child’, together with the court’s findings and a picture of the child and
(e) letters from readers angered by the treatment of the child by his mother and the court, again with a picture of the plaintiff.
(7) 29 January 2004
(a) Heading on front page ‘Christian abducted from hospital’, together with a photograph.
(b) The heading ‘Whole country moved by abduction’, with two photographs. The article criticises the allegedly rough methods of the bailiffs.
(c) The heading ‘Did the bailiff want to put a sticker on the child?’, also with critical comments.
(d) The heading ‘Abduction from hospital at dead of night’, also with a photograph The article describes the child’s removal from the hospital by his mother and quotes the father as saying that unless tough action is taken against the bailiffs, he will lodge a complaint.
(e) The heading ‘Minister Böhmdorfer says violence against children is unacceptable’ again with a photograph and comments on the case, including by the then Justice Minister Dr Dieter Böhmdorfer, who condemns violence against children.
(8) 30 January 2004
(a) The heading ‘Everyone wants Christian finally left in peace’: another report on the mother’s flight with her child, accompanied by a photograph of the child.
(b) The heading ‘Scenes like those with Christian are completely avoidable’, also with a photograph. Comments on the case by a crisis-management expert.
(9) 31 January 2004
(a) The heading ‘Christian’s case reopened’, with photograph. The report states that a new expert psychological opinion on the child is to be ordered.
(b) The heading ‘Custody battle – the story so far’, describing events up to that point.
(c) The heading ‘Blind hatred in salmon pink’, with comments by Günther Traxler, again with a picture of Christian grimacing in pain as the bailiff tries to put him in the police car.
(10) 2 February 2004
Under the heading ‘Christian already in Sweden’, a report stating that the child has already been taken to Sweden by his mother and has had to leave his beloved dog behind. The report is accompanied by a picture.
(11) 12 February 2004
The heading ‘I don’t want to stay here any longer’, again with three pictures of Christian. The reporter writes that the judge and bailiffs will have to answer to a disciplinary board and that Christian no longer wishes to stay with his mother in Sweden but wants to return to his father in Austria.
(12) 13 February 2004
The heading ‘Interpol soon to search for missing Christian’, again with a picture of the child. The report states that the boy has tried to run away from his mother and has disappeared.
(13) 16 February 2004
A reader’s letter under the heading ‘Violence is not the answer’, in which a 12yearold criticises the judge, again with a picture showing Christian grimacing in pain.”
21. The Regional Court allowed the action and ordered the applicant company to pay damages in the amount of EUR 136,000, to publish the judgment in its newspaper, and to bear the costs of the proceedings. The Regional Court found that by publishing the above articles containing details of the custody dispute over nine-year-old Christian W., and, moreover, disclosing his full name and accompanied by a photograph of him partly showing a highly distressed facial expression, the applicant company had exposed his strictly private life in a manner likely to compromise him in public, in breach of section 7 of the Media Act. Moreover, the articles published on 27, 28 and 29 January 2004 had, without justification, disclosed the identity of a person who had been the victim of a criminal offence to a large and not directly informed circle of people, in breach of section 7a of the Media Act.
22. The Regional Court accepted that there existed a direct link between the events reported on and the public interest because of the sharp criticism voiced of the conduct of the court officials who had attempted to enforce the custody order. However, the person with custody of Christian had not agreed to publication and the public interest in the events could have been satisfied without giving the child’s full name and publishing pictures of him.
23. On 29 March 2005 the applicant company appealed. Relying on Article 10 of the Convention, it argued, inter alia, that the Regional Court had failed to take into account the fact that there had already been an ongoing debate and that Christian’s father, acting as his son’s spokesman and in his interests, had informed the media of the events. Furthermore, it claimed that it had only acted as a public watchdog, informing the public about the proceedings and criticising the domestic authorities in the public interest.
24. On 21 September 2005 the Vienna Court of Appeal partly allowed the appeal. It found that there had been no breach of section 7a of the Media Act, because under that provision a compensation claim existed only if a media outlet had described acts by which someone had become the victim of a crime and if the description violated the victim’s protected interests. In the present case, however, it was not the description of a criminal act that had breached Christian’s protected interests, since the proceedings against the court officials had ended without a conviction. The Court of Appeal therefore remitted the case to the Regional Court on this point.
25. It further emphasised that by giving details of the plaintiff’s intimate family life and his full name, and by adding pictures of him, the newspaper had intruded into his strictly private life, as these details had merely been given in order to create a sensation and satisfy the curiosity of its readers. Even if there was a link to public life, a media outlet could report on a person’s strictly private life only to the extent necessary to satisfy the need for information related to those elements which were of relevance to the public interest. Reporting on events relating to a person’s strictly private life therefore had to be appropriate to the circumstances and proportionate. In the present case it had not been necessary for the purpose of informing the public of alleged shortcomings within the judiciary, nor had it been necessary to expose in such an intense and striking manner the severe strain being suffered by the juvenile plaintiff by inserting photographs showing his distress and despair, mentioning his full name and setting out the details of his seizure.
26. On 19 May 2006 the Regional Court ruled again on the case and found no breach of section 7a of the Media Act. It accordingly reduced the amount of compensation to EUR 130,000.
27. On 14 March 2007 the Vienna Court of Appeal upheld that decision.
28. Section 7 of the Media Act, which has the title “Interference with a person’s most intimate personal sphere” (Verletzung des höchstpersönlichen Lebensbereiches), reads as follows:
“(1) If a person’s strictly private life is discussed or presented in the media in a manner which is apt to compromise this person in public, the person concerned may claim compensation from the owner of the media for the injury suffered. The amount of compensation shall not exceed EUR 20,000 ...
(2) No compensation claim under paragraph 1 exists if
1. the publication at issue is based on a truthful report on a public session of the National Council or the Federal Council, the Federal Assembly, a regional diet or a committee of one of these general representative bodies;
2. the publication is true and has a direct connection to public life;
3. in the circumstances it could have been assumed that the person concerned had agreed to the publication;
4. it is a direct broadcast on radio or television (live programme) and the employees or contractors of the radio or television station have not neglected the principles of journalistic diligence;
5. the information has been published on a retrievable website and the owner of the media or its employees or contractors have not neglected the principles of journalistic diligence.”
29. Section 7a of the Media Act, which has the title “Protection against divulging a person’s identity in special cases” (Schutz vor Bekanntgabe der Identität in besonderen Fällen), reads as follows:
“(1) Where publication is made, through any medium, of a name, image or other particulars which are likely to lead to the disclosure to a larger not directly informed circle of people of the identity of a person who
1. has been the victim of an offence punishable by the courts, or
2. is suspected of having committed, or has been convicted of, a punishable offence,
and where legitimate interests of that person are thereby injured and there is no predominant public interest in the publication of such details on account of the person’s position in society, of some other connection with public life, or of other reasons, the victim shall have a claim against the owner of the medium (publisher) for damages for the injury suffered. The award of damages shall not exceed 20,000 euros; additionally, section 6(1), second sentence, shall apply.
(2) Legitimate interests of the victim shall in any event be injured if the publication
1. in the case of subsection (1)1, is such as to give rise to an interference with the victim’s strictly private life or to his or her exposure,
2. in the case of subsection (1)2, relates to a juvenile or merely to a lesser indictable offence (Vergehen) or may disproportionately prejudice the advancement of the person concerned.
(3) No compensation claim under paragraph 1 exists if
1. the publication at issue is based on a truthful report on a public session of the National Council or the Federal Council, the Federal Assembly, a regional diet or a committee of one of these general representative bodies;
2. the publication of the information on the person has been decided officially, in particular for the purposes of criminal justice or public security;
3. the person concerned has agreed to the publication or if the publication is based on information given by that person to the media;
4. it is a direct broadcast on radio or television (live programme) and the employees or contractors of the radio or television station have not neglected the principles of journalistic diligence;
5. the information has been published on a retrievable website and the owner of the media or its employees or contractors have not neglected the principles of journalistic diligence.”
30. Section 6(1) second sentence of the Media Act, to which reference has been made above, reads as follows:
“The amount of compensation shall be fixed according to the extent of the publication, its impact and, in particular, the type of media and how broadly it is disseminated; the compensation must not endanger the economic existence of the media owner.”
31. Section 8a of the Media Act, which has the title “Separate compensation proceedings” (Selbständiges Entschädigungsverfahren), insofar as relevant, reads as follows:
“In a judgment by which compensation under Section 6, 7, 7b or 7c has been awarded on the basis of a separate compensation request, the court must also order the publication of the judgment if the person concerned so requests, ...”
NON_VIOLATED_ARTICLES: 10


ITEMID: 001-76892
LANGUAGEISOCODE: ENG
RESPONDENT: SVK
BRANCH: CHAMBER
DATE: 2006
DOCNAME: CASE OF LUBINA v. SLOVAKIA
IMPORTANCE: 2
CONCLUSION: Violation of Art. 6-1;Remainder inadmissible;Non-pecuniary damage - financial award;Costs and expenses partial award - domestic and Convention proceedings
JUDGES: Nicolas Bratza
TEXT: 4. The applicant was born in 1954 and lives in Bratislava.
5. On 30 December 1997 the applicant’s wife stopped living with the applicant. She moved to her parents’ house together with her and the applicant’s son who was born on 4 July 1995.
6. On 20 March 1998 the applicant sought the determination of his right to meet his son. His wife counter-claimed that the applicant should be prohibited from meeting the boy.
7. On 8 June 1998 the applicant requested the Bratislava III District Court to issue an injunction granting him the right to meet his son every weekend. On 7 July 1998 the District Court dismissed that request. On 29 October 1998 the court of appeal upheld that decision. It noted that the request was premature as no decision had yet been given as regards the custody of the child.
8. On 29 June 1999 the Bratislava III District Court granted a divorce to the applicant and his wife. The latter was given custody of their son and the applicant was obliged to contribute to his maintenance.
9. On 28 July 1999 the applicant, with reference to the above judgment, informed the District Court that he wished to withdraw his action. His former wife withdrew her counter-claim. The Bratislava III District Court therefore discontinued the proceedings on 21 October 1999.
10. In an action filed on 18 January 2000 before the Bratislava III District Court the applicant claimed the right to meet his son.
11. A hearing was held on 4 May 2000. On 24 May 2000 the child’s mother counter-claimed that the applicant should be prohibited from meeting their son on the ground that the applicant drank and had behaved in an aggressive manner. At a hearing held on 15 June 2000 the District Court decided to examine jointly the claims of both parents.
12. On 13 July 2000 neither the child’s mother nor her lawyer appeared before the District Court. The mother did not appear on 17 August 2000 either, and the District Court imposed a procedural fine on her. On 11 September 2000 the police informed the court that they had been unable to serve a document on the applicant’s former wife in person.
13. A hearing was held on 5 October 2000.
14. On 16 October 2000 the Bratislava III District Court appointed an expert and instructed her to submit an opinion.
15. On 3 November 2000 the court requested the applicant to pay an advance on the expert’s fee. The applicant paid the sum on 21 June 2001.
16. On 6 April 2001 the expert asked to be excused from the case as she was ill.
17. On 17 April 2001 the District Court excused the expert. At the same time it appointed a different expert and instructed her to submit an opinion within thirty days.
18. On 2 July 2001 the new expert asked to be excused as she could not assess the case in an impartial manner.
19. On 1 August 2001 another person was instructed to submit an expert opinion. On 12 September 2001 that person informed the court that he no longer worked as a court expert. According to a note of 16 October 2001 drafted by the judge dealing with the case, the person in question was still registered as an expert.
20. On 24 September 2001, in reply to the applicant’s complaint, the president of the Bratislava Regional Court admitted that there had been undue delay in the proceedings between November 2000 and the beginning of April 2001. Otherwise, the judge had dealt with the case in an orderly manner, holding hearings at regular intervals.
21. On 12 November 2001 a fourth expert was appointed. On 22 March 2002 the court urged the expert to submit an opinion. It was submitted on 9 April 2002.
22. On 29 April 2002 the applicant appealed against the decision of 12 April 2002 concerning the expert’s fees. The appeal was submitted to the Regional Court on 15 May 2002. The Regional Court dismissed the appeal on 5 August 2002.
23. At the hearing held on 12 November 2002 the District Court heard the expert. The applicant requested that the expert be excluded from the case on grounds of bias. On 12 December 2002 the District Court requested the expert to comment on the applicant’s request. The expert replied on 31 December 2002. On 27 January 2003 the District Court found that the expert was not biased. The applicant appealed on 17 February 2003.
24. In the meantime, on 15 January 2003 the applicant appealed against the District Court’s decision of 19 December 2002 on the expert’s fees.
25. On 12 February 2003 and on 25 April 2003 the applicant made further written submissions to the District Court.
26. In February 2003 the case was submitted to the Regional Court for a decision on the applicant’s appeals against the above-mentioned procedural decisions.
27. On 25 March 2003 the child’s mother sought an interim measure ordering the applicant to abstain from any contact with their son. She submitted that the applicant had attacked her and the boy on their way to school.
28. On 27 March 2003 the District Court asked the Regional Court to return the file to it so that it could decide on the request for an injunction.
29. On 6 May 2003 the Regional Court returned the file to the District Court after it had upheld the first-instance decisions challenged by the applicant.
30. On 7 May 2003 the District Court asked the expert to answer additional questions. The court dismissed the mother’s request for an injunction. The decision stated that extensive expert evidence was being taken with a view to establishing in a reliable manner whether or not the applicant’s contacts with the child could threaten the latter’s physical and mental health. At that time, it had not yet been established that the injunction which the mother sought to obtain was required to protect the interests of the child.
The child’s mother appealed on 20 May 2003.
On 28 November 2003 the Regional Court in Bratislava upheld the first-instance decision. It underlined that the mother’s fear of the applicant’s negative impact on the child did not, as such, justify the injunction requested. The court also noted that, because of the mother’s behaviour, the applicant had been unable to participate in the education of his son.
31. On 12 May 2003 the District Court appointed a guardian to represent the child in the injunction proceedings. On the same day the file was sent to the Constitutional Court which dealt with the applicant’s complaint about the length of the proceedings. The file was returned to the District Court on 5 June 2003.
32. On 18 June 2003 an administrative authority submitted observations to the District Court.
33. As indicated above, on 28 November 2003 the court of appeal upheld the decision of 7 May 2003 on the mother’s request for an injunction. The file was returned to the District Court on 14 January 2004.
34. On 6 February 2004 the District Court asked the applicant to explain one of his earlier submissions. The applicant replied on 18 February 2004. Between 24 February 2004 and 16 March 2004 the case was submitted to the court of appeal. The latter found that no request for the exclusion of the judge of the first-instance court had been filed.
35. On 21 April 2004 the District Court found that the expert was not to be excluded.
36. On 21 May 2004 the District Court ordered the assessment of the applicant’s mental health. The expert’s opinion was submitted on 22 November 2004. On 3 February 2005 the opinion was sent to the parties. On the same day the expert who had submitted an opinion on 9 April 2002 was requested to supplement it. On 1 March 2005 that expert informed the court that the child’s mother had refused to co-operate with him. Subsequently, the mother and the child appeared before the expert and he submitted his opinion on 11 May 2005. The opinion was sent to the parties on 17 May 2005.
37. The District Court scheduled a hearing in the case for 30 May 2006.
38. The Court has received no information about any further development in the case.
39. On 7 February 2003 the applicant complained to the Constitutional Court about undue delays in the Bratislava III District Court proceedings. He requested that the Constitutional Court find as follows:
“The Bratislava III District Court violated the applicant’s right under Article 48(2) of the Constitution to a hearing without unjustified delay in proceedings 26 P 9/00.
[The Constitutional Court] awards the applicant 1.2 million Slovak korunas by way of just satisfaction as well as 120,000 Slovak korunas for costs and expenses.”
In the reasons for his complaint the applicant also mentioned Article 8 of the Convention submitting that he had been prevented from meeting his son for more than five years. However, as the applicant did not include this particular complaint in the text of the finding which he requested the Constitutional Court to make, the relevant domestic law prevented the Constitutional Court from expressing its view on that issue (see paragraphs 46-48 below).
40. On 17 September 2003 the Constitutional Court found that the applicant’s right under Article 48(2) of the Constitution had not been violated.
41. The Constitutional Court held, in particular, that the case was complex. The applicant had contributed to the length of the proceedings in that he had repeatedly challenged the expert and the decisions on the expert’s fees, thus prolonging the period for an overall period of nine months. The Constitutional Court also took into account that the applicant had belatedly paid the advance on the expert’s fees.
42. As to the conduct of the District Court, the Constitutional Court held that the judge had displayed due diligence when dealing with the case. The length of the proceedings was substantially due to difficulties in obtaining an expert opinion. However, the fact that the three experts appointed were unable to submit an opinion could not have been foreseen and no unjustified delays could be imputed to the District Court on that account. The fact that the judge had not urged the first expert to submit the opinion after the expiry of the time-limit set could not affect the position.
43. Pursuant to Article 74(1), courts can issue an interim measure when there is a need to regulate the parties’ situation in a temporary manner or where it is feared that the execution of a judicial decision could be jeopardised.
44. Article 75(1) provides that a court shall issue an interim measure upon request. Such a request is not necessary where an interim measure concerns proceedings which courts can start of their own motion.
45. Under Article 81(1) courts can start proceedings even in the absence of a request in matters concerning, inter alia, the care of minors.
46. Section 20(1) of the Constitutional Court Act of 1993 provides that a complaint to the Constitutional Court must indicate, inter alia, the decision which the plaintiff seeks to obtain. Under paragraph 3 of section 20, the Constitutional Court is bound by a plaintiff’s proposal for proceedings to be initiated unless this Act explicitly provides otherwise.
47. Pursuant to section 50(1)(a), a complaint must indicate, in addition to the information mentioned in section 20, the fundamental rights or freedoms the violation of which the plaintiff alleges.
48. The Constitutional Court has declared itself bound, in accordance with section 20(3) of the Constitutional Court Act, by a party’s submission aimed at initiating proceedings before it. The Constitutional Court has expressly stated that the above was particularly relevant as regards the order which parties seek to obtain as it can only decide on matters which a party requests to be determined (see, for example, decisions III. ÚS 166/02 of 6 November 2002 or III. ÚS 65/02 of 9 October 2002).
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-107558
LANGUAGEISOCODE: ENG
RESPONDENT: DEU
BRANCH: CHAMBER
DATE: 2011
DOCNAME: CASE OF SCHÖNBROD v. GERMANY
IMPORTANCE: 3
CONCLUSION: Remainder inadmissible;Violation of Art. 5-1;Non-pecuniary damage - award
JUDGES: Angelika Nußberger;Dean Spielmann;Elisabet Fura;Ganna Yudkivska;Karel Jungwiert;Mark Villiger
TEXT: 5. The applicant was born in 1933. He was detained in Aachen Prison until his release on 1 March 2008.
6. The applicant has been convicted twenty-two times since 1949, initially notably for smuggling and thefts. Since 1955 he has spent most of his life in prison.
7. On 23 April 1968 the Cologne Regional Court convicted the applicant on two charges of joint aggravated (armed) robbery of a bank, sentenced him to twelve years’ imprisonment and ordered his preventive detention.
8. On 20 January 1970 the Cologne Regional Court convicted the applicant of aggravated robbery-style theft committed against a money courier. Taking into account the term of imprisonment from the judgment of 23 April 1968, it imposed on the applicant a cumulative sentence of thirteen years’ imprisonment, but quashed the order for preventive detention. The remainder of his prison sentence was suspended on 31 March 1977 and the applicant was released and placed on probation; this suspension was subsequently revoked.
9. On 7 December 1978 the Cologne Regional Court convicted the applicant, in particular, of two counts of joint aggravated (armed) robbery, of aiding and abetting another joint aggravated robbery, of three counts of aggravated theft and one count of attempted aggravated theft. It sentenced him to thirteen years’ imprisonment and ordered his preventive detention under Article 66 § 1 of the Criminal Code (see paragraphs 45-46 below).
10. The Cologne Regional Court found that the applicant, who had been released from prison on 31 March 1977 and had a job, had committed the said offences between June 1977 and his arrest in November 1977. Together with two accomplices, he had robbed a money courier and a bank, armed. He had further stolen or attempted to steal together with others several cars which had later been used when committing the two robberies and another bank robbery in which the applicant had not otherwise participated.
11. Having consulted an expert, the Cologne Regional Court found that since his youth the applicant had been strongly inclined to commit offences and to make his living thereby, even though he could have worked. Serving long sentences had not prevented him from reoffending and from committing more and more serious offences at ever shorter intervals. Since there were no indications that the applicant would not reoffend, he was dangerous to the public.
12. On 11 April 1980 the Federal Court of Justice dismissed the applicant’s appeal on points of law against the judgment of 7 December 1978, which thereby became final.
13. On 29 April 1983 the Bonn Regional Court reopened the proceedings in respect of one of the applicant’s accomplices, W., who had also been convicted of bank robbery on 7 December 1978, and acquitted him. The third accomplice to the robbery, Schw., had confessed that he had wrongfully incriminated both W. and the applicant in this offence. The applicant’s request for reopening of the proceedings against him was subsequently dismissed.
14. On 2 February 1993 the Bonn Regional Court suspended the order remanding the applicant in preventive detention from 26 April 1993 (when the applicant would have served his full prison sentence), granted probation and ordered the applicant to be placed under supervision of conduct (Führungsaufsicht) for four years.
15. The applicant served the sentence imposed by the judgment of 7 December 1978 in full, as well as the remainder of the sentence imposed by the judgment of 20 January 1970, until 26 April 1993.
16. On 20 May 1996 the Koblenz Regional Court convicted the applicant of aggravated (armed) robbery committed with others, sentenced him to ten years’ imprisonment and ordered his preventive detention. It found that the applicant, armed with a machine gun, had robbed a bank together with an accomplice in June 1995; he had been in custody since then.
17. On 13 November 1996 the Federal Court of Justice quashed the judgment of 20 May 1996 so far as the applicant’s sentence and his preventive detention were concerned and remitted the case to the Regional Court.
18. On 18 June 1997 the Koblenz Regional Court again sentenced the applicant to ten years’ imprisonment. It considered the conditions for his preventive detention under Article 66 of the Criminal Code to have been met. However, for reasons of proportionality, the court did not order the applicant’s preventive detention, which would then have been of indefinite duration. It argued that from 8 June 2005 onwards, the applicant would be placed in preventive detention on the basis of the judgment of 7 December 1978, as the provisional suspension of his preventive detention on 2 February 1993 was likely to be revoked, and that he would be of advanced age afterwards.
19. On 6 July 1998 the Bonn Regional Court, acting as the court dealing with the execution of sentences, revoked the suspension of the applicant’s provisional preventive detention granted on 2 February 1993 pursuant to Article 67g § 1 no. 1 of the Criminal Code (see paragraph 51 below) in view of his renewed conviction for aggravated robbery committed in June 1995.
20. On 1 September 1998 the Cologne Court of Appeal, disagreeing with the General Public Prosecutor’s view, dismissed the applicant’s appeal against the decision of 6 July 1998. The applicant’s objection was of no avail.
21. On 25 February 1999 the Federal Constitutional Court declined to consider the applicant’s constitutional complaint (no. 2 BvR 1712/98) against the decision of the Cologne Court of Appeal dated 1 September 1998. It found that the applicant had failed sufficiently to substantiate his complaint, which was therefore inadmissible. It observed, however, that the provisions of the Criminal Code did not permit the revocation of the suspension of the applicant’s provisional preventive detention after the expiry of the four-year period of supervision of his conduct. It was firstly up to the courts dealing with matters relating to the execution of sentences to examine whether the revocation decision could be amended at the applicant’s request or of the court’s own motion.
22. On 13 April 1999 the Cologne Court of Appeal dismissed the applicant’s request, supported by the Public Prosecutor General, for the decisions of the Bonn Regional Court dated 6 July 1998 and of the Cologne Court of Appeal dated 1 September 1998 to be set aside. It found that under Article 68c § 3, second sentence, of the Criminal Code (see paragraph 52 below), the supervision of the applicant’s conduct for four years ordered in 1993 had not ended until now as the applicant had been detained since June 1995 and the time spent in detention did not count towards the period of the supervision of his conduct. Therefore, the provisional suspension of the preventive detention order against him could still be revoked in 1998.
23. On 13 September 2004 the Aachen Regional Court started the proceedings for examination of the need for the applicant’s preventive detention after the end of his prison term by requesting the Public Prosecutor’s Office to send the case file and by ordering the Aachen Prison authorities to make a statement.
24. The director of Aachen Prison thereupon sent a statement dated 30 December 2004, which he supplemented at the court’s request on 25 February 2005. Following two reminders from the Regional Court, the Public Prosecutor’s Office submitted the case file to the court in March 2005.
25. On 30 March 2005 the Regional Court requested a psychiatric expert to give an opinion on whether the applicant was still so dangerous that his preventive detention was necessary.
26. The applicant served his prison sentence in full, up to 7 June 2005. From 8 June 2005 the applicant was in preventive detention ordered in the judgment dated 7 December 1978.
27. Following an inquiry of the Regional Court at the applicant’s request, the latter was examined by the psychiatric expert on 3 August 2005. Following two further requests made by the applicant to make progress in the proceedings, a report drafted by two psychiatric experts was submitted to the court on 16 November 2005.
28. On 30 March 2006 the Aachen Regional Court, having heard the applicant and his counsel on that day and having consulted the director of Aachen Prison and two experts, ordered the execution of the preventive detention order in respect of the applicant made in the Cologne Regional Court judgment of 7 December 1978.
29. The Regional Court considered in detail the previous convictions of the applicant, aged 72, notably his convictions for aggravated robbery and robbery-style theft by judgments dated 23 April 1968, 20 January 1970, 7 December 1978 and 18 June 1997.
30. The Regional Court found that the execution of the preventive detention order against the applicant was still necessary in view of its objective (Article 67c § 1 of the Criminal Code, see paragraph 48 below). In the court’s view, the applicant was likely to commit further serious offences similar to those he had previously committed if released (Article 67d § 2 of the Criminal Code, see paragraph 50 below).
31. In the Regional Court’s view, the applicant had been a persistent offender since his youth, who had reoffended shortly after being released on probation and after serving long prison sentences. He did not have any family ties outside prison and did not have any precise plans as to what he would be doing when released. He was lively for his age. He suffered from orthopaedic health problems, notably injuries to his left knee and his hip, which, as found by the prison doctor, entailed a considerable but not extreme walking disability. His walking ability could have been considerably improved by an artificial hip, but he refused to have the operation while he was in prison. Having consulted the prison doctor, the court took the view that the applicant’s walking disability could not yet be considered so severe as to render him physically unable to commit an offence, notably as his previous offences had not required significant mobility.
32. The Regional Court, having regard to the report dated 16 November 2005 by the two psychiatric experts who had examined the applicant, took the view that the applicant’s personal and social situation remained similar to that which had existed when he was released from prison in 1993 at the age of 59. He had not changed his attitude towards offences and therefore remained dangerous.
33. On 26 June 2006 the Cologne Court of Appeal dismissed the applicant’s appeal against the Aachen Regional Court decision of 30 March 2006. It did not share the view expressed by the Federal Constitutional Court in its decision dated 25 February 1999 that the revocation of the suspension of the applicant’s provisional preventive detention had no longer been possible on 6 July 1998 according to the provisions of the Criminal Code. Pursuant to Article 67g § 5 of the Criminal Code (see paragraph 51 below), preventive detention would cease to apply at the end of the offender’s supervision of conduct if the court had not revoked the suspension of his preventive detention before that date. However, the supervision of the applicant’s conduct for four years ordered in 1993 had not ended, as the applicant had been detained since June 1995 and the time spent in detention did not count towards the duration of the supervision of conduct (Article 68c § 3, second sentence, of the Criminal Code).
34. Moreover, the Court of Appeal found that, contrary to the applicant’s submissions in his appeal, the fact that the Regional Court had failed to reach a decision on the applicant’s preventive detention before the applicant had served his full prison sentence on 7 June 2005 (Article 67c § 2 of the Criminal Code) did not render its decision unlawful. In any event, the mistake had been remedied ex nunc when the decision was taken.
35. According to the Court of Appeal, the applicant needed to be kept in preventive detention in order to protect the public from particularly dangerous offenders. The applicant did not truly question or regret his offences. As found by two experts in an additional report, the applicant’s statements concerning his offences were very similar to those he had made before his previous release from prison, following which he had reoffended. The applicant’s age and the health problems accompanying it did not, at least at the time, warrant a different conclusion as to the danger he presented to the public. The applicant had also already reached retirement age when he had committed his last offence. As found by the prison doctor on 25 February 2005, his knee and hip were damaged. The court found that these illnesses caused pain, but did not entail a walking disability.
36. Remanding the applicant in preventive detention was also not disproportionate, as he was likely to commit serious offences if released. However, in view of his present illnesses and the usual diminution of physical fitness with advancing age the applicant’s preventive detention would probably not last until its termination in 2015, but would be suspended on probation. Therefore, the applicant should be prepared for a life outside prison.
37. On 14 July 2006 the Cologne Court of Appeal dismissed the applicant’s objection against that decision.
38. On 3 August 2006 the applicant lodged a complaint with the Federal Constitutional Court against the decisions of the Aachen Regional Court dated 30 March 2006 and of the Cologne Court of Appeal dated 26 June 2006. He claimed that his right to liberty had been violated. He argued that, as had been expressly found in the decision of the Federal Constitutional Court dated 25 February 1999, the revocation of the suspension of his provisional preventive detention had no longer been possible on 6 July 1998. Moreover, he had been remanded in preventive detention since 8 June 2005 without a legal basis, in particular because the courts had failed to reach a decision on the necessity of that remand in custody within a reasonable time, as required by Article 67c § 1 of the Criminal Code as interpreted in the well-established case-law of the courts of appeal and of the Federal Constitutional Court itself (see paragraph 49 below). Due to his age, 73, and his walking disability, which had already made him physically unable to reoffend, his preventive detention was also disproportionate.
39. On 21 September 2006 the Federal Constitutional Court declined to consider the applicant’s constitutional complaint (file no. 2 BvR 1614/06). It found that the complaint had no prospects of success.
40. The Federal Constitutional Court considered that, even assuming that the decisions on the necessity to remand the applicant in preventive detention should have been based on paragraph 1 of Article 67c of the Criminal Code, they did not violate the Basic Law. Contrary to the applicant’s view, he had not been detained without legal basis in the period between the end of his prison term and the Regional Court’s decision ordering the execution of the preventive detention order against him. Referring to its decision of 9 March 1976 (file no. 2 BvR 618/75, see paragraph 49 below), it found that the execution of a preventive detention order on the basis of a judgment of the sentencing court ordering it under Article 66 of the Criminal Code was permitted if the Regional Court dealing with the execution of sentences had begun with its examination under Article 67c § 1 of the Criminal Code before the person concerned had fully served his prison sentence, even if it had not yet taken its decision.
41. The Federal Constitutional Court further took the view that the Regional Court, which had started the proceedings concerning suspension of the applicant’s preventive detention some nine months before the end of the applicant’s prison term, had not delayed the proceedings in a manner which would violate his right to liberty.
42. Furthermore, the decision of the courts dealing with the execution of sentences not to suspend the preventive detention order against the applicant and grant probation did not appear arbitrary in view of the applicant’s repeated serious offences and there was no violation of the courts’ duty to investigate the matter.
43. On 20 December 2007 the Aachen Regional Court decided to suspend the preventive detention order made against the applicant in the Cologne Regional Court’s judgment of 7 December 1978 and grant probation as of 1 March 2008; it further ordered supervision of the applicant’s conduct. Having regard to all the , including, in particular, the applicant’s walking disability, the court considered, in accordance with the view taken by the medical expert it had consulted and contrary to the view taken by the director of Aachen Prison and the Cologne Public Prosecutor’s Office, that it was to be expected that the applicant would not commit further serious offences similar to those he had previously been convicted of if released (Article 67d § 2 of the Criminal Code).
44. A comprehensive summary of the provisions of the Criminal Code and of the Code of Criminal Procedure governing the distinction between penalties and measures of correction and prevention, in particular preventive detention, and the making, review and execution in practice of preventive detention orders, is contained in the Court’s judgment in the case of M. v. Germany (no. 19359/04, §§ 45-78, 17 December 2009). The provisions relevant to the present case can be summarised as follows.
45. A sentencing court may, at the time of an offender’s conviction, order his preventive detention, known as a measure of correction and prevention, under certain circumstances in addition to his prison sentence, a penalty, if the offender has been shown to be dangerous to the public (Article 66 of the Criminal Code).
46. In particular, the sentencing court orders preventive detention in addition to the penalty if someone is convicted of an intentional offence and sentenced to at least two years’ imprisonment and if the following further conditions are satisfied: firstly, the perpetrator must have been sentenced twice already, to at least one year’s imprisonment in each case, for intentional offences committed prior to the new offence. Secondly, the perpetrator must previously have served a prison sentence or must have been detained pursuant to a measure of correction and prevention for at least two years. Thirdly, a comprehensive assessment of the perpetrator and his acts must reveal that, owing to his propensity to commit serious offences, notably those which seriously harm their victims physically or mentally or which cause serious economic damage, the perpetrator presents a danger to the general public (see Article 66 § 1 of the Criminal Code, in its version in force at the relevant time).
47. Preventive detention may only be ordered if such a measure is proportionate to the gravity of the offences committed by, or to be expected from, the perpetrator as well as to his dangerousness (Article 62 of the Criminal Code).
48. Article 67c of the Criminal Code governs orders for the preventive detention of convicted persons which are not executed immediately after the judgment ordering them becomes final. Paragraph 1 of the Article provides that if a term of imprisonment is executed prior to a simultaneously ordered placement in preventive detention, the court responsible for the execution of sentences (that is, a special Chamber of the Regional Court composed of three professional judges, see sections 78a and 78b (1)(1) of the Court Organisation Act) must review, before completion of the prison term, whether the person’s preventive detention is still necessary in view of its objective. If that is not the case, it temporarily suspends the execution of the preventive detention order and places the person on probation with supervision of their conduct which commences with the suspension. Pursuant to paragraph 2 of that Article, preventive detention may only be executed on the explicit order of the court if its execution has not started three years after the order becomes final, unless paragraph 1 applies. Time spent by the offender in detention by order of a public authority shall not count towards this time-limit. The court shall order the execution of the preventive detention order if the objective of the measure still requires it.
49. As regards the lawfulness of the execution of a preventive detention order in cases in which the person concerned has served his sentence in full, but the courts dealing with the execution of sentences have not yet taken their decision under Article 67c § 1 of the Criminal Code as to whether preventive detention was still necessary in view of its objective, the following principles have been established in the German courts’ case-law. The execution of the preventive detention order made in the judgment of the criminal sentencing court under Article 66 of the Criminal Code is lawful and does not violate the constitutional right to liberty of the person concerned if the courts dealing with the execution of sentences have started examining the need for preventive detention before the person concerned has served his prison sentence in full and have terminated the proceedings without avoidable delays and within a reasonable time (see Federal Constitutional Court, file no. 2 BvR 618/75, decision of 9 March 1976, Collection of the decisions of the Federal Constitutional Court (BVerfGE), vol. 42, pp. 1 ss.; Düsseldorf Court of Appeal, file no. 2 Ws 303/92, decision of 28 July 1992, NJW 1993, pp. 1087 ss.; Berlin Court of Appeal, file no. 5 Ws 731/96, decision of 18 December 1996; and Berlin Court of Appeal, file no. 2 Ws 373-377/07, decision of 15 June 2007). The execution of a preventive detention order was not permitted, in any event, if a convict, owing to avoidable delays, has already been in preventive detention for ten months without a need for preventive detention having been established (see Düsseldorf Court of Appeal, ibid., p. 1087). In such cases, the execution of the preventive detention order had to be interrupted at the detainee’s request under Article 458 §§ 1 and 3, read in conjunction with Article 463 of the Code of Criminal Procedure (see paragraph 53 below), irrespective of the dangerousness of the person concerned (see Düsseldorf Court of Appeal, ibid., p. 1087; and Berlin Court of Appeal, file no. 2 Ws 373-377/07, decision of 15 June 2007).
50. Article 67d of the Criminal Code governs the duration of preventive detention. Paragraph 2, first sentence, of that Article, in its version in force at the relevant time, provides that if there is no provision for a maximum duration or if the time-limit has not yet expired, the court shall suspend on probation the further execution of the detention order as soon as it is to be expected that the person concerned will not commit any further unlawful acts on his release.
51. Article 67g concerns the revocation of the suspension on probation of a preventive detention order. Pursuant to paragraph 1 no. 1, the court shall revoke the suspension of a preventive detention order if the convicted person, during the period of supervision of conduct, commits an unlawful act which shows that the objective of the measure necessitates his preventive detention. Paragraph 5 provides that preventive detention shall cease to apply at the end of the offender’s supervision of conduct if the court did not revoke the suspension of his preventive detention before that date.
52. Article 68c of the Criminal Code regulates the duration of the supervision of conduct. Pursuant to paragraph 3, in its version in force between 31 January 1998 and 17 April 2007, supervision of conduct shall begin once the order of that measure has become final (first sentence). The time the convicted person spends in detention by order of a public authority does not count towards the duration of the supervision of conduct (second sentence). Between 1 April 1987 and 30 January 1998 the same provision was made in paragraph 2 of Article 68c of the Criminal Code.
53. Article 458 § 1 of the Code of Criminal Procedure provides that if objections are raised to the admissibility of the execution of a penalty, a court decision shall be obtained. The further execution of the penalty shall not be suspended thereby; the court may, however, order a suspension of execution (Article 458 § 3 of the Code of Criminal Procedure). Pursuant to Article 463 § 1 of the Code of Criminal Procedure, Article 458 of that Code applies, mutatis mutandis, to the execution of measures of correction and prevention.
54. On 4 May 2011 the Federal Constitutional Court delivered a leading judgment concerning the retrospective prolongation of the complainants’ preventive detention beyond the former ten-year maximum period and about the retrospective order of the complainants’ preventive detention respectively (file nos. 2 BvR 2365/09, 2 BvR 740/10, 2 BvR 2333/08, 2 BvR 1152/10 and 2 BvR 571/10). The Federal Constitutional Court held that all provisions on the retrospective prolongation of preventive detention and on the retrospective order of such detention were incompatible with the Basic Law as they failed to comply with the constitutional protection of legitimate expectations guaranteed in a State governed by the rule of law, read in conjunction with the constitutional right to liberty.
55. The Federal Constitutional Court further held that all provisions of the Criminal Code on the imposition and duration of preventive detention at issue were incompatible with the fundamental right to liberty of the persons in preventive detention. It found that those provisions did not satisfy the constitutional requirement of establishing a difference between preventive detention and detention for serving a term of imprisonment (Abstandsgebot). These provisions included, in particular, Article 66 of the Criminal Code in its version in force since 27 December 2003.
56. The Federal Constitutional Court ordered that all provisions declared incompatible with the Basic Law remained applicable until the entry into force of new legislation and until 31 May 2013 at the most. In relation to detainees whose preventive detention had been prolonged or ordered retrospectively, the courts dealing with the execution of sentences had to examine without delay whether the persons concerned, owing to specific circumstances relating to their person or their conduct, were highly likely to commit the most serious crimes of violence or sexual offences and if, additionally, they suffered from a mental disorder. As regards the notion of mental disorder, the Federal Constitutional Court explicitly referred to the interpretation of the notion of “persons of unsound mind” in Article 5 § 1 sub-paragraph (e) of the Convention made in this Court’s case-law. If the above pre-conditions were not met, those detainees had to be released no later than 31 December 2011. The other provisions on the imposition and duration of preventive detention could only be further applied in the transitional period subject to a strict review of proportionality; as a general rule, proportionality was only respected where there was a danger of the person concerned committing serious crimes of violence or sexual offences if released.
57. In its judgment, the Federal Constitutional Court stressed that the fact that the Constitution stood above the Convention in the domestic hierarchy of norms was not an obstacle to an international and European dialogue between the courts, but was, on the contrary, its normative basis in view of the fact that the Constitution was to be interpreted in a manner that was open to public international law (völkerrechtsfreundliche Auslegung). It stressed that, in line with that openness of the Constitution to public international law, it attempted to avoid breaches of the Convention in the interpretation of the Constitution. In its reasoning, the Federal Constitutional Court relied on the interpretation of Article 5 and Article 7 of the Convention made by this Court in its judgment in the case of M. v. Germany (cited above).
VIOLATED_ARTICLES: 5
VIOLATED_PARAGRAPHS: 5-1


ITEMID: 001-61654
LANGUAGEISOCODE: ENG
RESPONDENT: ITA
BRANCH: CHAMBER
DATE: 2004
DOCNAME: CASE OF FOSSI AND MIGNOLLI v. ITALY
IMPORTANCE: 4
CONCLUSION: Violation of P1-1;Violation of Art. 6-1;Pecuniary damage - financial award;Non-pecuniary damage - financial award;Costs and expenses partial award - domestic proceedings
JUDGES: Peer Lorenzen
TEXT: 4. The applicants were born respectively in 1949, 1934, 1953 and live in Altopascio (Lucca), Lastra a Signa and Florence.
5. They are the owners of four flats in Florence.
6. On 10 January 2001, the whole property was transferred to the first applicant, Mr Enrico Fossi.
7. In a registered letter of 29 April 1987, the applicants informed the tenant that they intended to terminate the lease on expiry of the term on 31 December 1987 and asked her to vacate the premises by that date.
8. In a writ served on the tenant on 11 June 1987, the applicants reiterated their intention to terminate the lease and summoned the tenant to appear before the Florence Magistrate.
9. By a decision of 14 July 1987, which was made enforceable on 4 January 1990, the Florence Magistrate upheld the validity of the notice to quit and ordered that the premises be vacated by 30 November 1990.
10. On 19 October 1993, the applicants served notice on the tenant requiring her to vacate the premises.
11. On 11 November 1993, they informed the tenant that the order for possession would be enforced by a bailiff on 9 December 1993.
12. Between 9 December 1993 and 16 November 1998, the bailiff made twelve attempts to recover possession. Each attempt proved unsuccessful, as the applicants were not entitled to police assistance in enforcing the order for possession.
13. At the end of 1998, the applicants recovered possession of the flat.
14. In a registered letter of 29 April 1987, the applicants informed the tenant that they intended to terminate the lease on expiry of the term on 31 December 1987 and asked him to vacate the premises by that date.
15. In a writ served on the tenant on 11 June 1987, the applicants reiterated their intention to terminate the lease and summoned the tenant to appear before the Florence Magistrate.
16. By a decision of 14 July 1987, which was made enforceable on 31 July 1991, the Florence Magistrate upheld the validity of the notice to quit and ordered that the premises be vacated by 31 May 1992.
17. On 19 October 1993, the applicants served notice on the tenant requiring him to vacate the premises.
18. On 11 November 1993, they informed the tenant that the order for possession would be enforced by a bailiff on 9 December 1993.
19. Between 9 December 1993 and 17 March 1999, the bailiff made thirteen attempts to recover possession. Each attempt proved unsuccessful, as the applicants were not entitled to police assistance in enforcing the order for possession.
20. On 1 August 2000, the applicants entered into a new lease with the tenant's wife.
21. On an unspecified date at the end of 2001, Mr Enrico Fossi recovered possession of the flat.
22. In a registered letter of 29 April 1987, the applicants informed the tenant that they intended to terminate the lease on expiry of the term on 31 December 1987 and asked her to vacate the premises by that date.
23. In a writ served on the tenant on 11 June 1987, the applicants reiterated their intention to terminate the lease and summoned the tenant to appear before the Florence Magistrate.
24. By a decision of 14 July 1987, which was made enforceable on 31 July 1991, the Florence Magistrate upheld the validity of the notice to quit and ordered that the premises be vacated by 31 May 1992.
25. On 19 October 1993, the applicants served notice on the tenant requiring her to vacate the premises.
26. On 11 November 1993, they informed the tenant that the order for possession would be enforced by a bailiff on 9 December 1993.
27. Between 9 December 1993 and 17 March 1999, the bailiff made thirteen attempts to recover possession. Each attempt proved unsuccessful, as the applicants were not entitled to police assistance in enforcing the order for possession.
28. On 13 July 2003, Mr Enrico Fossi recovered possession of the flat.
29. In a registered letter of 29 April 1987, the applicants informed the tenant that they intended to terminate the lease on expiry of the term on 31 December 1987 and asked him to vacate the premises by that date.
30. In a writ served on the tenant on 11 June 1987, the applicants reiterated their intention to terminate the lease and summoned the tenant to appear before the Florence Magistrate.
31. By a decision of 14 July 1987, which was made enforceable on 31 July 1991, the Florence Magistrate upheld the validity of the notice to quit and ordered that the premises be vacated by 31 May 1992.
32. On 19 October 1993, the applicants served notice on the tenant requiring him to vacate the premises.
33. On 11 November 1993, they informed the tenant that the order for possession would be enforced by a bailiff on 9 December 1993.
34. Between 9 December 1993 and 17 March 1999, the bailiff made thirteen attempts to recover possession. Each attempt proved unsuccessful, as the applicants were not entitled to police assistance in enforcing the order for possession.
35. On an unspecified date of 1999, the applicants recovered possession of the flat.
36. Since 1947 the public authorities in Italy have frequently intervened in residential tenancy legislation with the aim of controlling rents. This has been achieved by rent freezes (occasionally relaxed when the Government decreed statutory increases), by the statutory extension of all current leases and by the postponement, suspension or staggering of the enforcement of orders for possession. The relevant domestic law concerning the extension of tenancies, the suspension of enforcement and the staggering of evictions is described in the Court's judgment in the case of Immobiliare Saffi v. Italy [GC], no. 22774/93, §§ 18-35, ECHR 1999-V. Lastly, for some cases, a suspension of the enforcement of the orders for possession until 30 June 2004 was introduced by Legislative Decree no. 147 of 24 June 2003, which became Law no. 200 of 1 August 2003.
37. As regards the control of the rents, the evolution of the Italian legislation may be summarised as follows.
38. The first relevant measure was the Law no. 392 of 27 July 1978 which provided machinery for “fair rents” (the so-called equo canone) on the basis of a number of criteria such as the surface of the flat and its costs of realisation.
39. The second step of the Italian authorities dated August 1992. It was taken in the view of progressive liberalisation of the market of tenancies. Accordingly, a legislation relaxing on rent levels restrictions (the so-called patti in deroga) entered into force. Owners and tenants were in principle given the opportunity to derogate from the rent imposed by law and to agree on a different price.
40. Lastly, Law no. 431 of 9 December 1998 reformed the tenancies and liberalised the rents.
41. The tenant is under a general obligation to refund the owner any damages caused in the case of late restitution of the flat. In this regard, Article 1591 of the Italian Civil Code provides:
“The tenant who fails to vacate the immovable property is under an obligation to pay the owner the agreed amount until the date when he leaves, together with other remaining damages.”
42. However, Law no. 61 of 1989 set out, inter alia, a limit to the compensation claimable by the owner entitling him to a sum equal to the rent paid by the tenant at the time of the expiration of the lease, proportionally increased according to the cost of living (Article 24 of Law no. 392 of 27 July 1978) plus 20%, along the period of inability to dispose of the possession of the flat.
43. In the judgment no. 482 of 2000, the Constitutional Court was called upon to decide whether such a limitation complied with the Constitution. The Constitutional Court held that it was compatible with the Constitution with regard to periods of time during which the suspension of the evictions was determined by law. The Constitutional Court explained that the introduction of that limitation was intended to settle the tenancies of the time of the emergency legislation, when the housing shortage made the suspension of the enforcement necessary. While evictions were suspended ex lege, the law predetermined the quantum of the reimbursement chargeable to the tenant, both measures being temporary and exceptional. Besides, the interests of the owner were counterbalanced by the exemption for him from the burden to prove the damages.
44. The Constitutional Court declared the limitation to the compensation claimable by the owner unconstitutional with regard to cases where the impossibility for the owner to repossess the flat depended on the conduct of the tenant and was not due to a legislative intervention. Accordingly, it opened the way to owners for the institution of civil proceedings in order to obtain full reparation of the damages caused by the tenant.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1