ITEMID: 001-110188
LANGUAGEISOCODE: ENG
RESPONDENT: NLD
BRANCH: GRANDCHAMBER
DATE: 2012
DOCNAME: CASE OF VAN DER HEIJDEN v. THE NETHERLANDS
IMPORTANCE: 2
CONCLUSION: No violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for family life)
JUDGES: Ann Power-Forde;Corneliu Bîrsan;Dean Spielmann;Egbert Myjer;Elisabet Fura;Françoise Tulkens;Giorgio Malinverni;Jean-Paul Costa;Josep Casadevall;Julia Laffranque;Khanlar Hajiyev;Ledi Bianku;Luis López Guerra;Nicolas Bratza
TEXT: 10. The applicant was born in 1969 and lives in ‘s-Hertogenbosch.
11. On the night of 9 to 10 May 2004, a man was shot and killed in a café in ‘s-Hertogenbosch by a person believed to be the applicant’s unmarried life partner, Mr A. The applicant was understood to have been in the company of Mr A. at the relevant time.
12. According to the Government, Mr A. had been convicted of similar offences in 1998 and 2003, and on the latter occasion of attempted manslaughter using a firearm. While serving his sentence for that offence, Mr A. had been given weekend leave; it was during this particular weekend that the above-mentioned shooting took place.
13. On 25 May 2004, having been summoned as a witness in the criminal investigation that had been opened against Mr A., the applicant appeared but refused to testify before the investigating judge (rechtercommissaris). She explained that, although they were not married and had not entered into a registered partnership (geregistreerd partnerschap), she and Mr A. had been cohabiting for eighteen years in a relationship out of which two children had been born, both of whom had been recognised by Mr A. The applicant argued that on the basis of this relationship she should be regarded as entitled to the testimonial privilege (verschoningsrecht) afforded to suspects’ spouses and registered partners under Article 217, opening sentence and sub-paragraph 3, of the Code of Criminal Procedure (Wetboek van Strafvordering; see paragraph 24 below). Although being of the view that the applicant was not entitled to testimonial privilege, the investigating judge rejected the public prosecutor’s request to issue an order for the applicant’s detention for failure to comply with a judicial order (gijzeling), finding that the applicant’s personal interests in remaining at liberty outweighed those of the prosecution. The public prosecutor appealed against this decision to the ‘s-Hertogenbosch Regional Court (rechtbank).
14. On 2 June 2004 the ‘s-Hertogenbosch Regional Court, sitting in chambers (raadkamer), quashed the investigating judge’s decision of 25 May 2004 and ordered the applicant’s detention for failure to comply with a judicial order. It considered that it could reasonably be assumed that the applicant was able to convey what had occurred in relation to Mr A. before, during and after the shooting. It noted that, according to the provisions of Article 217, opening sentence and sub-paragraph 3, of the Code of Criminal Procedure as in force from 1 January 1998, the (former) spouse or the (former) registered partner of a suspect were competent but not compellable witnesses, that is to say, persons entitled to testimonial privilege. It further held:
“It follows from the wording and the legal history of [Article 217, opening sentence and sub-paragraph 3,] that the legislature has quite recently and unambiguously chosen not to include in the scope of [the privilege set out in Article 217, opening sentence and sub-paragraph 3,] any partners other than spouses and registered partners (as well as former spouses and former registered partners). As it does not appear that [the applicant] and the suspect are or have been married or that they are or have been registered partners, the Regional Court is of the view that [the applicant] cannot claim an entitlement to the testimonial privilege laid down in Article 217 of the Code of Criminal Procedure. This is not altered by the fact that [the applicant] and the suspect are engaged in another kind of longterm cohabitation. The Regional Court rejects the argument raised by counsel for [the applicant] that it follows from Articles 8 and 14 of the Convention that the Netherlands legislature cannot limit the group of persons (related to a suspect) entitled to testimonial privilege. An extension of that group must, also in view of the far-reaching consequences thereof, be decided by the legislature and for that reason goes beyond the judicial function (rechtsvormende taak) of the courts.”
15. In its subsequent balancing of the competing interests involved, the Regional Court noted that the facts at issue concerned one of the most serious crimes set out in the Criminal Code (Wetboek van Strafrecht) and concluded that the applicant’s personal interests were outweighed by the general interest of the truth being uncovered. It further added that the circumstance that the applicant and Mr A. were cohabiting as if they were in a marriage or a registered partnership could not lead it to balance the interests differently. Rejection of the request to issue a detention order on the basis of that circumstance would entail that the applicant was nevertheless, and in circumvention of Article 217 of the Code of Criminal Procedure, granted a right to testimonial privilege, and that would be contrary to the legislature’s choice.
16. On the same day, 2 June 2004, at around 3.30 p.m., the applicant was taken into detention for failure to comply with a judicial order. As required by Article 221 of the Code of Criminal Procedure (see paragraph 26 below), the applicant was heard on 3 June 2004 by an investigating judge, who rejected a release request by counsel for the applicant and who notified the Regional Court within the statutory time-limit of twenty-four hours after she was taken into detention.
17. On 4 June 2004 the Regional Court, sitting in chambers, examined whether the applicant’s detention should continue, and in that context it heard the applicant, who persisted in her refusal to give evidence in the criminal investigation against Mr A. The Regional Court agreed with the decision taken in chambers on 2 June 2004 that the applicant was not entitled to testimonial privilege. Concluding that the interests of the investigation in obtaining the applicant’s evidence outweighed the interests invoked on behalf of the applicant, the Regional Court decided that the applicant was to be kept in detention for twelve days, with a possibility of further extension. The applicant lodged an appeal with the Court of Appeal (gerechtshof).
18. On 15 June 2004 the Regional Court, sitting in chambers, examined a request by the prosecution of 14 June 2004 to extend the applicant’s detention. After hearing the public prosecutor, the applicant and her lawyer the Regional Court rejected the request and ordered the applicant’s immediate release. It found that the interest of the truth being uncovered in the criminal proceedings against Mr A. was outweighed by the applicant’s personal interest in being released, also taking into account the fact that the applicant’s detention entailed an interference with her rights under Article 8 of the Convention (“mede gelet op het feit dat de vrijheidsbeneming van de getuige een inbreuk op artikel 8 van het EVRM tot gevolg heeft”).
19. On 24 June 2004, the ‘s-Hertogenbosch Court of Appeal dismissed the applicant’s appeal (hoger beroep) and upheld the impugned decision of 4 June 2004.
20. On 31 May 2005, after noting that the applicant had been released on 15 June 2004, the Supreme Court (Hoge Raad) declared inadmissible for lack of interest the applicant’s subsequent appeal on points of law (cassatie). The Supreme Court nevertheless saw fit to consider the applicant’s first complaint that the Court of Appeal had incorrectly upheld the ruling of the Regional Court in which it was concluded that she was not entitled to the testimonial privilege of Article 217, opening sentence and sub-paragraph 3, of the Code of Criminal Procedure, as well as her second complaint that to deny her this privilege was contrary to Articles 8 and 14 of the Convention.
21. Having noted the wording of Article 217, opening sentence and subparagraph 3, of the Code of Criminal Procedure as in force since 1 January 1998, the Supreme Court rejected the first complaint. As to the applicant’s grievance based on Articles 8 and 14 of the Convention, the Supreme Court held:
“Testimonial privilege as laid down in Article 217, opening sentence and sub-paragraph 3, of the Code of Criminal Procedure seeks to protect the ‘family life’ within the meaning of Article 8 of the Convention that exists between the spouses and partners referred to in that provision. By granting this privilege to spouses and registered partners but not to other partners – even when such partners, like the applicant and her partner, cohabit in a sustained fashion – the law differentiates between the different forms of cohabitation at issue here. Even assuming that this can be said to constitute a difference in treatment of persons in the same situation, there is an objective and reasonable justification for this difference in treatment, having regard to the fact that the granting of testimonial privilege to spouses and registered partners is an exception to the statutory duty to testify, which exception makes the interest of uncovering the truth yield to the interests of those relationships, with the statutory arrangement delimiting this exception in a clear and workable manner, thus serving legal certainty.”
22. No further appeal lay against this ruling.
23. Unlike the suspect, a witness in (preliminary) criminal proceedings is obliged to answer questions put to him or her when he or she is under oath, and any deliberate refusal to do so constitutes a criminal offence under Article 192 of the Criminal Code. However, Article 217 of the Code of Criminal Procedure grants the right not to give evidence to certain relatives of the suspect.
24. Article 217 of the Code of Criminal Procedure provides as follows:
“The following shall be excused the obligation to give evidence or answer certain questions:
1º: the relatives in the ascending or the descending line of a suspect or co-suspect, whether connected by blood or by marriage;
2º: the relatives ex transverso [i.e. siblings, uncles, aunts, nieces and nephews, etc.] of a suspect or co-suspect, whether connected by blood or by marriage, up to and including the third degree of kinship;
3º: the spouse or former spouse, or registered partner or former registered partner, of a suspect or co-suspect.”
The third sub-paragraph formerly applied only to the spouse and the former spouse of a suspect or co-suspect. It was amended to extend the testimonial privilege to the registered partner (or former registered partner) with effect from 1 January 1998, when the Registered Partnership Act (Wet geregistreerd partnerschap) and the Act on the Adaptation of Legislation to the Introduction of Registered Partnership into Book 1 of the Civil Code (Wet tot aanpassing van wetgeving aan de invoering van het geregistreerd partnerschap in Boek 1 van het Burgerlijk Wetboek) entered into force.
25. As can be inferred from the Explanatory Memorandum (Memorie van Toelichting) to Article 217 of the Code of Criminal Procedure (see Parliamentary Documents, Lower House of Parliament (Kamerstukken II) 1913/14, 286, no. 3, p. 108), and from an advisory opinion of the Advocate General endorsed by the Supreme Court in a judgment of 7 December 1999 (National Jurisprudence Number ZD1719, published in Nederlandse Jurisprudentie (Netherlands Law Reports) 2000, no. 163), the basis for this testimonial privilege lies in the sphere of the protection of family relations. In accepting the right not to give evidence against a relative, spouse or registered partner, the legislature has acknowledged the important social value of those relationships in society and has sought to prevent witnesses from being faced with a moral dilemma by having to make a choice between testifying, and thereby jeopardising their relationship with the suspect, or giving perjured evidence in order to protect that relationship.
26. Article 221 of the Code of Criminal Procedure provides as follows:
“1. If, when questioned, the witness refuses without any lawful reason to answer the questions put to him or to make the required statement or take the required oath or affirmation, the investigating judge shall, if this is urgently required in the interest of the investigation, either proprio motu or if so requested by the public prosecutor or by the defence, order that the witness shall be detained for failure to comply with a judicial order until the Regional Court has given a decision in the matter.
2. The investigating judge shall notify the Regional Court within twenty-four hours after the detention has commenced, unless the witness is released from detention before then. The Regional Court shall, within forty-eight hours [from the notification], order that the witness be kept in detention or released.”
Article 222 of the Code of Criminal Procedure provides as follows:
“1. The Regional Court’s order for the witness to remain in detention shall be valid for no longer than twelve days.
2. However, as long as the preliminary judicial investigation (gerechtelijk vooronderzoek) remains pending, the Regional Court may, on the basis of the findings of the investigating judge or at the request of the public prosecutor, after having again questioned the witness, extend the validity of the order again and again (telkens) for twelve days each time.”
27. Article 223 of the Code of Criminal Procedure provides as follows:
“1. The investigating judge shall order the witness released from detention as soon as he has fulfilled his obligation or his evidence is no longer needed.
2. The Regional Court may at any time order the witness released from detention, whether on the basis of the findings of the investigating judge, proprio motu or if so requested by the public prosecutor or by the defence. The witness shall be heard or summoned beforehand.
3. If the witness’s request to be released from detention is refused, he may appeal within three days of the official notification of the decision, and in the event that his appeal is dismissed, he may within the same time-limit lodge an appeal on points of law. ...
4. In any event, the public prosecutor shall order that the witness be released as soon as the preliminary judicial investigation has been closed or discontinued.”
28. A partnership is registered by means of a registration document drawn up by the Registrar of Births, Deaths and Marriages (ambtenaar van de burgerlijke stand) (Article 1:80a § 2 of the Civil Code); the formal requirements are similar to those of a marriage. It can be dissolved by mutual consent, by the registration of a statement to that effect signed by both parties and co-signed by an advocate or a notary, or by a court order at the request of one of the parties (Article 1:80c of the Civil Code).
29. The provisions of the Civil Code setting out the legal consequences of marriage apply by analogy to a registered partnership, with the exception of certain rules governing the establishment of legal family ties (familierechtelijke betrekkingen) with descendants (Article 1:80b of the Civil Code).
30. On 1 June 2011, in response to a request made during the Court’s hearing (see paragraph 9 above), the Government supplied the following information:
“In 1997/1998 article 217 of the Code of Criminal Procedure (CCP) was amended to the extent that the right to be exempted from testifying would also apply to a witness who had entered into a registered partnership with the defendant. This amendment in itself did not lead to any debate on the question whether other forms of relationships should be entitled to the same exemption.
However, this amendment – among many others – was a consequence of the introduction of registered partnership, which in turn was preceded by a full survey (concluded in 1985, [Parliamentary Documents, Lower House of Parliament, 15401, no. 5]) of all legislation that made a distinction between married and unmarried couples. With regard to article 217 CCP the survey mentioned that an amendment should be considered to the effect that the article would include a life partner (p. 16).
Following this survey the Kortmann committee [a committee tasked with reviewing legislative projects, named after its chairman, Professor S.C.J.J. Kortmann] presented its report ‘Partnerships’ (Leefvormen, 20 December 1991) to the Cabinet. The committee was of the opinion that the best way to remove all existing distinctions would be to introduce two new possibilities of registering partnerships in addition to marriage. Together these three forms of registration could be used as categories in most legal provisions that attached legal consequences to different types of partnerships.
Following further discussion in parliament ([Parliamentary Documents, Lower House of Parliament, 15401, nos. 9, 10 and 11]) the Government decided to introduce only one new form of registration, which then became known as registered partnership. In doing so, the Government accepted that in several instances, specific provisions might be required to accommodate situations of family life not covered by the accepted categories. However, in the context of article 217 CCP this was not considered necessary.”
31. All Council of Europe Member States have addressed in their legislation the question whether in criminal proceedings the spouse of the defendant can be compelled to give evidence. The following is a brief and necessarily condensed survey of the position in the various domestic legal orders. It is based on information available to the Court at the time of its hearing (see paragraph 8 above).
32. In no Council of Europe member State, with the exception of France and Luxembourg, are spouses obliged to give evidence in criminal proceedings in which the other spouse is a suspect. In a few cases, namely Belgium, Malta and Norway, exclusion of the evidence of the suspect’s spouse is automatic; in general, however, the spouse may opt to give evidence or claim a privilege or an exemption when called as a witness.
33. The possibility formally to register a partnership exists in Austria, Belgium, the Czech Republic, Denmark, Finland, France, Germany, Greece, Hungary, Iceland, Ireland, Luxembourg, the Netherlands, Norway, Slovenia, Spain (some of the autonomous communities), Sweden, Switzerland, Ukraine and the United Kingdom. Some of these States allow such registration only if the parties are of the same sex (including Austria, Denmark, Finland, Germany, Hungary, Slovenia and Sweden); the other member States concerned provide registration of a partnership as an alternative to marriage when the parties are a man and a woman.
34. Of the twenty member States that allow the registration of partnerships, thirteen are prepared to exempt the suspect’s registered partner from giving evidence: these are Austria, Belgium, the Czech Republic, Germany, Iceland and the Netherlands, whose legislation explicitly so provides, and Denmark, Finland, Hungary, Norway, Sweden, Switzerland and the United Kingdom, whose laws assimilate registered partnership to marriage in this aspect as in others. Greece and Ireland do not extend this privilege to registered partners; France and Luxembourg grant no testimonial privilege at all.
35. A minority of member States – namely Austria, Andorra, Finland, Georgia, Germany, Hungary, Iceland, Liechtenstein, Lithuania, Norway, Poland, Portugal, Slovakia, Sweden, Turkey and Ukraine – exempt the person engaged to be married to the suspect from the duty to give evidence. However, apart from Finland, Germany, Hungary, Iceland, Norway, Sweden and Turkey, these member States qualify this exemption by requiring evidence of the existence of a bond similar to marriage, such as stable cohabitation or a child born of the relationship.
36. Cohabitees who are not married, engaged to be married or in a registered partnership with the suspect appear to be dispensed from giving evidence unconditionally only in Albania, Andorra, Lithuania and Moldova. By contrast, Austria, Bosnia and Herzegovina, Bulgaria, Croatia, the Czech Republic, Estonia, “the Former Yugoslav Republic of Macedonia”, Hungary, Iceland, Italy, Liechtenstein, Montenegro, Norway, Portugal, Serbia, Slovakia, Spain, Sweden and Switzerland require proof of the marriage-like nature of the relationship, usually in the form of children born of it, demonstrable financial arrangements or length of cohabitation. It would appear that the other Council of Europe member States do not permit a person merely cohabiting with the suspect to withhold his or her evidence.
NON_VIOLATED_ARTICLES: 8
NON_VIOLATED_PARAGRAPHS: 8-1


ITEMID: 001-57473
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: CHAMBER
DATE: 1981
DOCNAME: CASE OF DUDGEON v. THE UNITED KINGDOM
IMPORTANCE: 2
CONCLUSION: Violation of Art. 8;Not necessary to examine Art. 14+8;Just satisfaction reserved
JUDGES: C. Russo
TEXT: 13. Mr. Jeffrey Dudgeon, who is 35 years of age, is a shipping clerk resident in Belfast, Northern Ireland.
Mr. Dudgeon is a homosexual and his complaints are directed primarily against the existence in Northern Ireland of laws which have the effect of making certain homosexual acts between consenting adult males criminal offences.
14. The relevant provisions currently in force in Northern Ireland are contained in the Offences against the Person Act 1861 ("the 1861 Act"), the Criminal Law Amendment Act 1885 ("the 1855 Act") and the common law.
Under sections 61 and 62 of the 1861 Act, committing and attempting to commit buggery are made offences punishable with maximum sentences of life imprisonment and ten years’ imprisonment, respectively. Buggery consists of sexual intercourse per anum by a man with a man or a woman, or per anum or per vaginam by a man or a woman with an animal.
By section 11 of the 1885 Act, it is an offence, punishable with a maximum of two years’ imprisonment, for any male person, in public or in private, to commit an act of "gross indecency" with another male. "Gross indecency" is not statutorily defined but relates to any act involving sexual indecency between male persons; according to the evidence submitted to the Wolfenden Committee (see paragraph 17 below), it usually takes the form of mutual masturbation, inter-crural contact or oral-genital contact. At common law, an attempt to commit an offence is itself an offence and, accordingly, it is an offence to attempt to commit an act proscribed by section 11 of the 1885 Act. An attempt is in theory punishable in Northern Ireland by an unlimited sentence (but as to this, see paragraph 31 below).
Consent is no defence to any of these offences and no distinction regarding age is made in the text of the Acts.
An account of how the law is applied in practice is given below at paragraphs 29 to 31.
15. Acts of homosexuality between females are not, and have never been, criminal offences, although the offence of indecent assault may be committed by one woman on another under the age of 17.
As regards heterosexual relations, it is an offence, subject to certain exceptions, for a man to have sexual intercourse with a girl under the age of 17. Until 1950 the age of consent of a girl to sexual intercourse was 16 in both England and Wales and in Northern Ireland, but by legislation introduced in that year the age of consent was increased to 17 in Northern Ireland. While in relation to the corresponding offence in England and Wales it is a defence for a man under the age of 24 to show that he believed with reasonable cause the girl to be over 16 years of age, no such defence is available under Northern Ireland law.
16. The 1861 and 1885 Acts were passed by the United Kingdom Parliament. When enacted, they applied to England and Wales, to all Ireland, then unpartitioned and an integral part of the United Kingdom, and also, in the case of the 1885 Act, to Scotland.
17. In England and Wales the current law on male homosexual acts is contained in the Sexual Offences Act 1956 ("the 1956 Act") as amended by the Sexual Offences Act 1967 ("the 1967 Act").
The 1956 Act, an Act consolidating the existing statute law, made it an offence for any person to commit buggery with another person or an animal (section 12) and an offence for a man to commit an act of "gross indecency" with another man (section 13).
The 1967 Act, which was introduced into Parliament as a Private Member’s Bill, was passed to give effect to the recommendations concerning homosexuality made in 1957 in the report of the Departmental Committee on Homosexual Offences and Prostitution established under the chairmanship of Sir John Wolfenden (the "Wolfenden Committee" and "Wolfenden report"). The Wolfenden Committee regarded the function of the criminal law in this field as
"to preserve public order and decency, to protect the citizen from what is offensive or injurious, and to provide sufficient safeguards against exploitation and corruption of others, particularly those who are specially vulnerable because they are young, weak in body or mind, inexperienced, or in a state of special physical, official, or economic dependence",
but not
"to intervene in the private lives of citizens, or to seek to enforce any particular pattern of behaviour, further than is necessary to carry out the purposes we have outlined".
The Wolfenden Committee concluded that homosexual behaviour between consenting adults in private was part of the "realm of private morality and immorality which is, in brief and crude terms, not the law’s business" and should no longer be criminal.
The 1967 Act qualified sections 12 and 13 of the 1956 Act by providing that, subject to certain exceptions concerning mental patients, members of the armed forces and merchant seamen, buggery and acts of gross indecency in private between consenting males aged 21 years or over should not be criminal offences. It remains a crime to commit a homosexual act, of the kind referred to in these sections, with a person aged less than 21 in any circumstances.
The age of majority for certain purposes, including capacity to marry without parental consent and to enter into contractual relations, was reduced from 21 to 18 by the Family Law Reform Act 1969. The voting age and the minimum age for jury service were likewise reduced to 18 by the Representation of the People Act 1969 and the Criminal Justice Act 1972, respectively.
In 1977, the House of Lords rejected a Bill aimed at reducing the age of consent for private homosexual act to 18. Subsequently, in a report published in April 1981, a committee established by the Home Office, namely the Policy Advisory Committee on Sexual Offences, recommended that the minimum age for homosexual relations between males should be reduced to 18. A minority of five members favoured a reduction to 16.
18. When the applicant lodged his complaint in 1976, the relevant law applicable was substantially similar to that currently in force in Northern Ireland. Section 7 of the Sexual Offences (Scotland) Act 1976, a consolidating provision re-enacting section 11 of the 1885 Act, provided for the offence of gross indecency; the offence of sodomy existed at common law. However, successive Lord Advocates had stated in Parliament that their policy was not to prosecute in respect of acts which would not have been punishable if the 1967 Act had applied in Scotland. The Criminal Justice (Scotland) Act 1980 ("the 1980 Act") formally brought Scottish law into line with that of England and Wales. As in the case of the 1967 Act, the change in the law originated in amendments introduced in Parliament by a Private Member.
19. Under an Act of the United Kingdom Parliament, the Government of Ireland Act 1920, a separate Parliament for Northern Ireland was established with power to legislate on all matters devolved by that Act, including criminal and social law. An executive known as the Government of Northern Ireland was also established with Ministers responsible for the different areas of the devolved powers. By convention, during the life of the Northern Ireland Parliament (1921-9172) the United Kingdom Parliament rarely, if ever, legislated for Northern Ireland in respect of the devolved matters - in particular social matters - falling within the former Parliament’s legislative competence.
20. In March 1972, the Northern Ireland Parliament was prorogued and Northern Ireland was made subject to "direct rule" from Westminster (see the judgment of 18 January 1978 in the case of Ireland v. the United Kingdom, Series A no. 25, pp. 10 and 20-21, par. 19 and 49). Since that date, except for a period of five months in 1974 when certain legislative and executive powers were devolved to a Northern Ireland Assembly and Executive, legislation for Northern Ireland in all fields has been the responsibility of the United Kingdom Parliament. There are 12 members of the United Kingdom House of Commons, out of a total of 635, who represent constituencies in Northern Ireland.
Under the provisions currently in force, power is conferred on Her Majesty to legislate for Northern Ireland by Order in Council. Save where there are reasons of urgency, no recommendation may be made to Her Majesty to make an Order in Council under these provisions unless a draft of the Order has been approved by each House of Parliament. It is the responsibility of the Government to prepare a draft Order and to lay it before Parliament for approval. A draft can only be approved or rejected in toto by Parliament, but not amended. The function of the Queen in Council in making an Order once it has been approved by Parliament is purely formal. In practice, much legislation for Northern Ireland is effected in this form rather than by means of an Act of Parliament.
21. No measures comparable to the 1967 Act were ever introduced into the Northern Ireland Parliament either by the Government of Northern Ireland or by any Private Member.
22. In July 1976, following the failure of the Northern Ireland Constitutional Convention to work out a satisfactory form of devolved government for Northern Ireland, the then Secretary of State for Northern Ireland announced in Parliament that the United Kingdom Government would thenceforth by looking closely at the need for legislation in fields which it had previously been thought appropriate to leave to a future devolved government, in particular with a view to bringing Northern Ireland law more closely into harmony with laws in other parts of the country. He cited homosexuality and divorce as possible areas for action. However, recognising the difficulties about such subjects in Northern Ireland, he indicated that he would welcome the views of the local people, including those of the Standing Advisory Commission on Human Rights ("the Advisory Commission") and of Members of Parliament representing Northern Ireland constituencies.
23. The Advisory Commission, which is an independent statutory body, was accordingly invited to consider the matter. As regards homosexual offences, the Advisory Commission received evidence from a number of persons and organisations, religious and secular. No representations were made by the Roman Catholic Church in Northern Ireland or by any of the 12 Northern Ireland Members of the United Kingdom House of Commons.
The Advisory Commission published its report in April 1977. The Advisory Commission concluded that most people did not regard it as satisfactory to retain the existing differences in the law with regard to homosexuality and that few only would be strongly opposed to changes bringing Northern Ireland law into conformity with that in England and Wales. On the other hand, it did not consider that there would be support for legislation which went further, in particular by lowering the age of consent. Its recommendations were that the law of Northern Ireland should be brought into line with the 1967 Act, but that future amendments to the 1967 Act should not automatically apply to Northern Ireland.
24. On 27 July 1978, the Government published a proposal for a draft Homosexual Offences (Northern Ireland) Order 1978, the effect of which would have been to bring Northern Ireland law on the matter broadly into line with that of England and Wales. In particular, homosexual acts in private between two consenting male adults over the age of 21 would no longer have been punishable.
In a foreword to the proposal, the responsible Minister stated that "the Government had always recognised that homosexuality is an issue about which some people in Northern Ireland hold strong conscientious or religious opinions". He summarised the main arguments for and against reform as follows:
"In brief, there are two differing viewpoints. One, based on an interpretation of religious principles, holds that homosexual acts under any circumstances are immoral and that the criminal law should be used, by treating them as crimes, to enforce moral behaviour. The other view distinguishes between, on the one hand that area of private morality within which a homosexual individual can (as a matter of civil liberty) exercise his private right of conscience and, on the other hand, the area of public concern where the State ought and must use the law for the protection of society and in particular for the protection of children, those who are mentally retarded and others who are incapable of valid personal consent.
I have during my discussions with religious and other groups heard both these viewpoints expressed with sincerity and I understand the convictions that underlie both points of view. There are in addition other considerations which must be taken into account. For example it has been pointed out that the present law is difficult to enforce, that fear of exposure can make a homosexual particularly vulnerable to blackmail and that this fear of exposure can cause unhappiness not only for the homosexual himself but also for his family and friends.
While recognising these differing viewpoints I believe we should not overlook the common ground. Most people will agree that the young must be given special protection; and most people will also agree that law should be capable of being enforced. Moreover those who are against reform have compassion and respect for individual rights just as much as those in favour of reform have concern for the welfare of society. For the individuals in society, as for Government, there is thus a difficult balance of judgment to be arrived at."
Public comment on the proposed amendment to the law was invited.
25. The numerous comments received by the Government in response to their invitation, during and after the formal period of consultation, revealed a substantial division of opinion. On a simple count of heads, there was a large majority of individuals and institutions against the proposal for a draft Order.
Those opposed to reform included a number of senior judges, District Councils, Orange Lodges and other organisations, generally of a religious character and in some cases engaged in youth activities. A petition to "Save Ulster from Sodomy" organised by the Democratic Unionist Party led by Mr. Ian Paisley, a Member of the United Kingdom House of Commons, collected nearly 70.000 signatures. The strongest opposition came from certain religious groups. In particular, the Roman Catholic Bishops saw the proposal as an invitation to Northern Irish society to change radically its moral code in a manner liable to bring about more serious problems than anything attributable to the present law. The Roman Catholic Bishops argued that such a change in the law would lead to a further decline in moral standards and to a climate of moral laxity which would endanger and put undesirable pressures on those most vulnerable, namely the young. Similarly, the Presbyterian Church in Ireland, whilst understanding the arguments for the change, made the point that the removal from the purview of the criminal law of private homosexual acts between consenting adult males might be taken by the public as an implicit licence if not approval for such practices and as a change in public policy towards a further relaxation of moral standards.
The strongest support for change came from organisations representing homosexuals and social work agencies. They claimed that the existing law was unnecessary and that it created hardship and distress for a substantial minority of persons affected by it. It was urged that the sphere of morality should be kept distinct from that of the criminal law and that considerations of the personal freedom of the individual should in such matters be paramount. For its part, the Standing Committee of the General Synod of the Church of Ireland accepted that homosexual acts in private between consenting adults aged 21 and over should be removed from the realm of criminal offence, but in amplification commented that this did not mean that the Church considered homosexuality to be an acceptable norm.
Press reports indicated that most of the political formations had expressed favourable views. However, none of the 12 Northern Ireland Members of Parliament publicly supported the proposed reform and several of them openly opposed it. An opinion poll conducted in Northern Ireland in January 1978 indicated that the people interviewed were evenly divided on the global question of the desirability of reforming the law on divorce and homosexuality so as to bring it into line with that of England and Wales.
26. On 2 July 1979, the then Secretary of State for Northern Ireland, in announcing to Parliament that the Government did not intend to pursue the proposed reform, stated:
"Consultation showed that strong views are held in Northern Ireland, both for and against in the existing law. Although it is not possible to say with certainty what is the feeling of the majority of people in the province, it is clear that is substantial body of opinion there (embracing a wide range of religious as well as political opinion) is opposed to the proposed change ... [T]he Government have [also] taken into account ... the fact that legislation on an issue such as the one dealt with in the draft order has traditionally been a matter for the initiative of a Private Member rather than for Government. At present, therefore, the Government propose to take no further action ..., but we would be prepared to reconsider the matter if there were any developments in the future which were relevant."
27. In its annual report for 1979-1980, the Advisory Commission reiterated its view that law should be reformed. It believed that there was a danger that the volume of opposition might be exaggerated.
28. Since the Northern Ireland Parliament was prorogued in 1972 (see paragraph 20 above), there has been no initiative of any kind for legislation to amend the 1861 and 1885 Acts from any of the mainstream political organisations or movements in Northern Ireland.
29. In accordance with the general law, anyone, including a private person, may bring a prosecution for a homosexual offence, subject to the Director of Public Prosecutions’ power to assume the conduct of the proceedings and, if he thinks fit, discontinue them. The evidence as to prosecutions for homosexual offences between 1972 and 1981 reveals that none has been brought by a private person during that time.
30. During the period from January 1972 to October 1980 there were 62 prosecutions for homosexual offences in Northern Ireland. The large majority of these cases involved minors that is persons under 18; a few involved persons aged 18 to 21 or mental patients or prisoners. So far as the Government are aware from investigation of the records, no one was prosecuted in Northern Ireland during the period in question for an act which would clearly not have been an offence if committed in England or Wales. There is, however, no stated policy not to prosecute in respect of such acts. As was explained to the Court by the Government, instructions operative within the office of the Director of Public Prosecutions reserve the decision on whether to prosecute in each individual case to the Director personally, in consultation with the Attorney General, the sole criterion being whether, on all the facts and circumstances of that case, a prosecution would be in the public interest.
31. According to the Government, the maximum sentences prescribed by the 1861 and 1885 Acts are appropriate only for the most grave instances of the relevant offence and in practice no court would ever contemplate imposing the maximum sentence for offences committed between consenting parties, whether in private or in public. Furthermore, although liable to an unlimited sentence, a man convicted of an attempt to commit gross indecency would in practice never receive a sentence greater than that appropriate if the offence had been completed; in general, the sentence would be significantly less. In all cases of homosexual offences the actual penalty imposed will depend on the particular circumstances.
32. The applicant has, on his own evidence, been consciously homosexual from the age of 14. For some time he and others have been conducting a campaign aimed at bringing the law in Northern Ireland into line with that in force in England and Wales and, if possible, achieving a minimum age of consent lower than 21 years.
33. On 21 January 1976, the police went to Mr. Dudgeon’s address to execute a warrant under the Misuse of Drugs Act 1971. During the search of the house a quantity of cannabis was found which subsequently led to another person being charged with drug offences. Personal papers, including correspondence and diaries, belonging to the applicant in which were described homosexual activities were also found and seized. As a result, he was asked to go to a police station where for about four and a half hours he was questioned, on the basis of these papers, about his sexual life. The police investigation file was sent to the Director of Prosecutions. It was considered with a view to instituting proceedings for the offence of gross indecency between males. The Director, in consultation with the Attorney General, decided that it would not be in the public interest for proceedings to be brought. Mr. Dudgeon was so informed in February 1977 and his papers, with annotations marked over them, were returned to him.
VIOLATED_ARTICLES: 8


ITEMID: 001-96480
LANGUAGEISOCODE: ENG
RESPONDENT: DEU
BRANCH: ADMISSIBILITY
DATE: 2009
DOCNAME: DZANKOVIC v. GERMANY
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Isabelle Berro-Lefèvre;Karel Jungwiert;Mirjana Lazarova Trajkovska;Peer Lorenzen;Rait Maruste;Renate Jaeger;Zdravka Kalaydjieva
TEXT: The applicant, Mr Ramis Dzankovic, is a Macedonian national who was born in 1982 and is currently detained in Essen. He was represented before the Court by Mr U. Busch, a lawyer practising in Ratingen.
On 4 April 2008 the Cologne Public Prosecutor’s Office opened preliminary investigations against the applicant suspected of intentional homicide (Totschlag) and murder (Mord). At that time the applicant had already been held in pre-trial detention in Essen on other grounds.
On 21 April 2008 the Cologne District Court issued a search warrant in respect of the applicant’s person, vehicle and premises. The Cologne Regional Court dismissed the applicant’s appeal against that warrant.
In the course of the investigation rogatory letters (Rechtshilfeersuchen) and a request for the applicant’s questioning were lodged. The Essen Regional Court decided that the detained applicant could be handed over for questioning by the investigating authorities.
On 6 August 2008 Mr. B., the applicant’s lawyer, appointed himself counsel chosen by the applicant (Wahlverteidiger) and requested that the proceedings be discontinued. Mr. B. lodged an appeal against the Essen Regional Court’s decision and consulted the case files. He then informed the Public Prosecutor that the applicant would refuse to give evidence and the Public Prosecutor abstained from questioning.
On 11 September 2008 Mr. B. lodged a request to be appointed as the applicant’s official defence counsel (Pflichtverteidiger). He relied on section 140 § (1) no. 5 and § (2) of the Code of Criminal Procedure and held that there was a legal obligation to appoint an official defence counsel in the applicant’s case and that the Public Prosecutor was obliged to make the corresponding request with the competent court.
On 19 November 2008 the Cologne Public Prosecutor’s Office informed the applicant’s representative that it did not intend to request that he be appointed official defence counsel during the preliminary investigation proceedings. It underlined that he had already been appointed by the applicant as his defence counsel. There were no grounds at this stage requiring him to be appointed officially.
On 2 January 2009 the Cologne General Public Prosecutor dismissed the applicant’s representative’s complaint against this decision, holding that the fact that legal representation was compulsory during later trial proceedings did not entail an obligation to appoint an official defence counsel for the whole preliminary investigation nor for certain investigation measures. Moreover, the Public Prosecution benefitted from a certain margin of appreciation when appointing defence counsel. The appointment of defence counsel during preliminary investigations was necessary only if there were concrete grounds requiring legal assistance at an early stage, which was not the case at present.
On 22 January 2009 the Federal Constitutional Court refused to admit his constitutional complaint for adjudication. It held that it was inadmissible with regard to the principle of subsidiarity. The alleged violation of constitutional law by the Public Prosecutor’s refusal to officially appoint defence counsel could still be challenged in the main proceedings, notably by virtue of an appeal on points of law, without the applicant incurring any major disadvantages.
The relevant provisions of the Code of Criminal Procedure read as follows:
“Section 117
(1) ...
(4) If the accused does not yet have defence counsel, he shall be assigned defence counsel for the duration of his pre-trial detention, if its execution has lasted for at least three months and the public prosecutor’s office or the accused or his statutory representative has requested it. The accused shall be informed about his right to submit a request. Sections 142, 143 and 145 shall apply mutatis mutandis.
(5) ...”
“Section 140
(1) The assistance of defence counsel shall be mandatory if:
1. the main hearing is held at first instance at the Higher Regional Court or at the Regional Court;
2. the accused is charged with a serious criminal offence;
...
5. the accused has been detained for at least three months on the basis of a judicial order or with the approval of a judge and will be detained until at least two weeks prior to the commencement of the main hearing;
...
(2) In other cases the presiding judge shall appoint defence counsel upon application or ex officio if the assistance of defence counsel appears necessary because of the seriousness of the offence or because of the difficult factual or legal situation (...).”
“Section 141
(1) In the cases of Section 140 §§ (1) and (2), as soon as an indicted accused without defence counsel has been requested according to Section 201 to reply to the bill of indictment, defence counsel shall be appointed.
(2) ...
(3) Defence counsel may be appointed during the preliminary proceedings. The public prosecutor’s office shall request such an appointment if, in its opinion, the assistance of defence counsel pursuant to Section 140 §§ (1) or (2) is necessary during the court proceedings. (...).
(4) The judge presiding over the court with jurisdiction in respect of the main proceedings or over the court to which the case has been assigned shall decide on the appointment.”


ITEMID: 001-57920
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: GRANDCHAMBER
DATE: 1995
DOCNAME: CASE OF LOIZIDOU v. TURKEY (PRELIMINARY OBJECTIONS)
IMPORTANCE: 2
CONCLUSION: Question of procedure rejected (locus standi of the applicant Government);Preliminary objection rejected (abuse of process);Preliminary objection rejected (ratione loci);Preliminary objection joined to merits (ratione temporis)
JUDGES: Claudio Zanghi;Gaukur Jörundsson;N. Valticos;R. Pekkanen
TEXT: 10. The applicant, a Cypriot national, grew up in Kyrenia in northern Cyprus. In 1972 she married and moved with her husband to Nicosia.
11. She claims to be the owner of plots of land nos. 4609, 4610, 4618, 4619, 4748, 4884, 5002, 5004, 5386 and 5390 in Kyrenia in northern Cyprus and she alleges that prior to the Turkish occupation of northern Cyprus on 20 July 1974, work had commenced on plot no. 5390 for the construction of flats, one of which was intended as a home for her family. She states that she has been prevented in the past, and is still prevented, by Turkish forces from returning to Kyrenia and "peacefully enjoying" her property.
12. On 19 March 1989 the applicant participated in a march organised by a women’s group ("Women Walk Home" movement) in the village of Lymbia near the Turkish village of Akincilar in the occupied area of northern Cyprus. The aim of the march was to assert the right of Greek Cypriot refugees to return to their homes.
Leading a group of fifty marchers she advanced up a hill towards the Church of the Holy Cross in the Turkish-occupied part of Cyprus passing the United Nations’ guard post on the way. When they reached the churchyard they were surrounded by Turkish soldiers and prevented from moving any further.
13. She was eventually detained by members of the Turkish Cypriot police force and brought by ambulance to Nicosia. She was released around midnight, having been detained for more than ten hours.
14. In his report of 31 May 1989 (Security Council document S/20663) on the United Nations Operation in Cyprus (for the period 1 December 1988 - 31 May 1989) the Secretary-General of the United Nations described the demonstration of 19 March 1989 as follows (at paragraph 11):
"In March 1989, considerable tension occurred over the well-publicized plans of a Greek Cypriot women’s group to organize a large demonstration with the announced intention of crossing the Turkish forces cease-fire line. In this connection it is relevant to recall that, following violent demonstrations in the United Nations buffer-zone in November 1988, the Government of Cyprus had given assurances that it would in future do whatever was necessary to ensure respect for the buffer-zone ... Accordingly, UNFICYP asked the Government to take effective action to prevent any demonstrators from entering the buffer-zone, bearing in mind that such entry would lead to a situation that might be difficult to control. The demonstration took place on 19 March 1989. An estimated 2,000 women crossed the buffer-zone at Lymbia and some managed to cross the Turkish forces’ line. A smaller group crossed that line at Akhna. At Lymbia, a large number of Turkish Cypriot women arrived shortly after the Greek Cypriots and mounted a counter demonstration, remaining however on their side of the line. Unarmed Turkish soldiers opposed the demonstrators and, thanks largely to the manner in which they and the Turkish Cypriot police dealt with the situation, the demonstration passed without serious incident. Altogether, 54 demonstrators were arrested by Turkish Cypriot police in the two locations; they were released to UNFICYP later the same day."
15. On 28 January 1987 the Government of Turkey deposited the following declaration with the Secretary General of the Council of Europe pursuant to Article 25 (art. 25) of the Convention (see paragraph 65 below):
"The Government of Turkey, acting pursuant to Article 25 (1) (art. 25-1) of the Convention for the Protection of Human Rights and Fundamental Freedoms hereby declares to accept the competence of the European Commission of Human Rights and to receive petitions according to Article 25 (art. 25) of the Convention subject to the following:
(i) the recognition of the right of petition extends only to allegations concerning acts or omissions of public authorities in Turkey performed within the boundaries of the territory to which the Constitution of the Republic of Turkey is applicable;
(ii) the circumstances and conditions under which Turkey, by virtue of Article 15 (art. 15) of the Convention, derogates from her obligations under the Convention in special circumstances must be interpreted, for the purpose of the competence attributed to the Commission under this declaration, in the light of Articles 119 to 122 of the Turkish Constitution;
(iii) the competence attributed to the Commission under this declaration shall not comprise matters regarding the legal status of military personnel and in particular, the system of discipline in the armed forces;
(iv) for the purpose of the competence attributed to the Commission under this declaration, the notion of a "democratic society" in paragraphs 2 of Articles 8, 9, 10 and 11 (art. 8-2, art. 9-2, art. 10-2, art. 11-2) of the Convention must be understood in conformity with the principles laid down in the Turkish Constitution and in particular its Preamble and its Article 13;
(v) for the purpose of the competence attributed to the Commission under the present declaration, Articles 33, 52 and 135 of the Constitution must be understood as being in conformity with Article 10 and 11 (art. 10, art. 11) of the Convention.
This declaration extends to allegations made in respect of facts, including judgments which are based on such facts which have occurred subsequent to the date of deposit of the present declaration. This declaration is valid for three years from the date of deposit with the Secretary General of the Council of Europe."
16. On 29 January 1987 the Secretary General of the Council of Europe transmitted the above declaration to the other High Contracting Parties to the Convention indicating that he had drawn the Turkish authorities’ attention to the fact that the notification made pursuant to Article 25 para. 3 (art. 25-3) of the Convention in no way prejudged the legal questions which might arise concerning the validity of Turkey’s declaration.
17. In a letter dated 5 February 1987 to the Secretary General, the Permanent Representative of Turkey to the Council of Europe stated that the wording of Article 25 para. 3 (art. 25-3) of the Convention offered no basis for expressing opinions or adding comments when transmitting copies of the Turkish declaration to the High Contracting Parties. He added:
"International treaty practice, in particular that followed by the Secretary-General of the United Nations as depositary to similar important treaties as the Statute of the International Court of Justice or the covenants and conventions dealing with human rights and fundamental freedoms, also confirms that the depositary has to refrain from any comments on the substance of any declaration made by a Contracting Party."
18. On 6 April 1987 the Deputy Minister for Foreign Affairs of Greece wrote to the Secretary General stating inter alia that reservations to the European Convention on Human Rights may not be formulated on the basis of any provision other than Article 64 (art. 64). He added:
"Furthermore, Article 25 (art. 25) provides neither directly nor implicitly the possibility of formulating reservations similar to the reservations set out in the Turkish declaration. The position cannot be otherwise, for if reservations could be made on the basis of Article 25 (art. 25), such a method of proceeding would undermine Article 64 (art. 64) and would sooner or later destroy the very foundations of the Convention.
...
It follows that the Turkish reservations, as they are outside the scope of Article 64 (art. 64) must be considered as unauthorised reservations and, accordingly, as illegal reservations. Consequently, they are null and void and may not give rise to any effect in law."
19. In a letter of 21 April 1987 the Permanent Representative of Sweden wrote to the Secretary General stating inter alia that "the reservations and declarations ... raise various legal questions as to the scope of the [Turkish] recognition. The Government therefore reserves the right to return to this question in the light of such decisions by the competent bodies of the Council of Europe that may occur in connection with concrete petitions from individuals".
20. The Minister for Foreign Affairs of Luxembourg, in a letter of 21 April 1987 to the Secretary General stated inter alia that "Luxembourg reserves to itself the right to express ... its position in regard to the Turkish Government’s declaration" before the competent bodies of the Council of Europe. He indicated that "the absence of a formal and official reaction on the merits of the problem should not ... be interpreted as a tacit recognition by Luxembourg of the Turkish Government’s reservations".
21. In a letter of 30 April 1987 to the Secretary General the Permanent Representative of Denmark stated inter alia as follows:
"In the view of the Danish Government, the reservations and declarations which accompany the said recognition raise various legal questions as to the scope of the recognition. The Government therefore reserves its right to return to these questions in the light of future decisions by the competent bodies of the Council of Europe in connection with concrete petitions from individuals."
22. The Permanent Representative of Norway, in his letter of 4 May 1987 to the Secretary General, stated that the wording of the declaration could give rise to difficult issues of interpretation as to the scope of the recognition of the right to petition. He considered that such issues fell to be resolved by the European Commission of Human Rights in dealing with concrete petitions. He added:
"It is therefore desirable to avoid any doubt as to the scope and validity of the recognition by individual States of this right which may be raised by generalised stipulations in respect of the context in which petitions would be accepted as admissible, interpretative statements or other conditionalities."
23. In a letter dated 26 June 1987 to the Secretary General, the Permanent Representative of Turkey stated that the points contained in the Turkish declaration were not to be considered as "reservations" in the sense of international treaty law. He pointed out, inter alia, that the only competent organ to make a legally binding assessment as to the validity of the conditions attaching to the Article 25 (art. 25) declaration was "the European Commission of Human Rights, when being seized of an individual application, and eventually the Committee of Ministers, when acting pursuant to Article 32 (art. 32) of the Convention".
24. The Permanent Representative of Belgium, in a letter of 22 July 1987 to the Secretary General, stated that the conditions and qualifications set forth in the declaration raised legal questions as to the system of protection set up under the Convention. He added:
"Belgium therefore reserves the right to express its position in regard to the Turkish Government’s declaration, at a later stage and before the competent bodies of the Council of Europe. Meanwhile the absence of a formal reaction on the merits of the problem should by no means be interpreted as a tacit recognition by Belgium of the Turkish Government’s conditions and qualifications."
25. Turkey subsequently renewed her declaration under Article 25 (art. 25) of the Convention for three years as from 28 January 1990. The declaration read as follows:
"The Government of Turkey, acting pursuant to Article 25 (1) (art. 25-1) of the Convention for the Protection of Human Rights and Fundamental Freedoms hereby declares to accept the competence of the European Commission of Human Rights to receive petitions according to Article 25 (art. 25) of the Convention on the basis of the following:
(i) the recognition of the right of petition extends only to allegations concerning acts or omissions of public authorities in Turkey performed within the boundaries of the national territory of the Republic of Turkey;
(ii) the circumstances and conditions under which Turkey, by virtue of Article 15 (art. 15) of the Convention, derogates from her obligations under the Convention in special circumstances must be interpreted, for the purpose of the competence attributed to the Commission under this declaration, in the light of Articles 119 to 122 of the Turkish Constitution;
(iii) the competence attributed to the Commission under this declaration shall not comprise matters regarding the legal status of military personnel and in particular, the system of discipline in the armed forces;
(iv) for the purpose of the competence attributed to the Commission under this declaration, Articles 8, 9, 10 and 11 (art. 8, art. 9, art. 10, art. 11) of the Convention shall be interpreted by giving special emphasis to `those legal and factual features which characterize the life of the society’ (European Court of Human Rights, Judgment of 23 July 1968, p. 34) in Turkey, as expressed notably by the Turkish Constitution including its Preamble.
This declaration extends to allegations made in respect of facts, including judgments which are based on such facts which have occurred subsequent to 28 January 1987, date of the deposit of the previous declaration by Turkey. This declaration is valid for three years as from January 28, 1990."
26. A further renewal for a three-year period as from 28 January 1993 reads as follows:
"The Government of Turkey, acting pursuant to Article 25 (1) (art. 25-1) of the Convention for the Protection of Human Rights and Fundamental Freedoms, hereby declares to accept the competence of the European Commission of Human Rights, to receive petitions which raise allegations concerning acts or omissions of public authorities in Turkey in as far as they have been performed within the boundaries of the national territory of the Republic of Turkey.
This declaration extends to allegations made in respect of facts, including judgments which are based on such facts which have occurred subsequent to 28 January 1987, date of the deposit of the first declaration made by Turkey under Article 25 (art. 25) of the Convention. This declaration is valid for three years from 28 January 1993."
27. On 22 January 1990, the Turkish Minister for Foreign Affairs deposited the following declaration with the Secretary General of the Council of Europe pursuant to Article 46 (art. 46) of the Convention (see paragraph 66 below):
"On behalf of the Government of the Republic of Turkey and acting in accordance with Article 46 (art. 46) of the European Convention for the Protection of Human Rights and Fundamental Freedoms, I hereby declare as follows:
The Government of the Republic of Turkey acting in accordance with Article 46 (art. 46) of the European Convention for the Protection of Human Rights and Fundamental Freedoms, hereby recognises as compulsory ipso facto and without special agreement the jurisdiction of the European Court of Human Rights in all matters concerning the interpretation and application of the Convention which relate to the exercise of jurisdiction within the meaning of Article 1 (art. 1) of the Convention, performed within the boundaries of the national territory of the Republic of Turkey, and provided further that such matters have previously been examined by the Commission within the power conferred upon it by Turkey.
This Declaration is made on condition of reciprocity, including reciprocity of obligations assumed under the Convention. It is valid for a period of 3 years as from the date of its deposit and extends to matters raised in respect of facts, including judgments which are based on such facts which have occurred subsequent to the date of deposit of the present Declaration."
This declaration was renewed for a period of three years as from 22 January 1993 in substantially the same terms.
28. The Secretary General of the Council of Europe acknowledged deposit of the Turkish declaration under Article 46 (art. 46) in a letter dated 26 January 1990 and pointed out that her acknowledgement was without prejudice to the legal questions that might arise concerning the validity of the Turkish declaration.
29. In a letter of 31 May 1990 to the Secretary General of the Council of Europe, the Permanent Representative of Greece stated inter alia as follows:
"Article 46 (art. 46) of the said Convention is clear and to be strictly interpreted and applied. It provides that declarations of recognition of the Court’s jurisdiction may be subject to two conditions only: (a) on condition of reciprocity, if they are not made unconditionally, and (b) for a specified period.
Consequently, the above-mentioned declaration of the Turkish Government which, in addition to these two conditions, contains further restrictions or reservations, is, where the latter are concerned, incompatible with Article 46 (art. 46) and with the European Convention on Human Rights in general, as indeed was already pointed out in the Greek Government’s letter of 6 April 1987 in connection with the Turkish Government’s declaration under Article 25 (art. 25) of the said Convention. It follows that these restrictions or reservations are null and void and may have no legal effect."
30. By letter of 9 August 1988 the Government of Cyprus deposited the following declaration under Article 25 (art. 25) of the Convention:
"On behalf of the Government of the Republic of Cyprus, I declare, in accordance with Article 25 (art. 25) of the Convention for the Protection of Human Rights and Fundamental Freedoms of 4 November 1950, that the Government of the Republic of Cyprus recognizes, for the period beginning on 1 January 1989 and ending on 31 December 1991, the competence of the European Commission of Human Rights to receive petitions submitted to the Secretary General of the Council of Europe subsequently to 31 December 1988, by any person, non-governmental organisation or group of individuals claiming, in relation to any act or decision occurring or any facts or events arising subsequently to 31 December 1988, to be the victim of a violation of the rights set forth in that Convention.
On behalf of the Government of the Republic of Cyprus, I further declare that the competence of the Commission by virtue of Article 25 (art. 25) of the Convention is not to extend to petitions concerning acts or omissions alleged to involve breaches of the Convention or its Protocols, in which the Republic of Cyprus is named as the Respondent, if the acts or omissions relate to measures taken by the Government of the Republic of Cyprus to meet the needs resulting from the situation created by the continuing invasion and military occupation of part of the territory of the Republic of Cyprus by Turkey."
31. In a letter dated 12 September 1988, the Secretary General recalled that according to the general rules, the notification made pursuant to Article 25 para. 3 (art. 25-3) in no way prejudged the legal questions that might arise concerning the validity of the Cypriot declaration.
32. The declaration was renewed in the same terms on 2 January 1992. By letter of 22 December 1994 it was renewed for a further period of three years without the restrictions ratione materiae set out above.
33. The United Kingdom’s Article 25 (art. 25) declaration of 14 January 1966, which has been renewed successively, reads as follows:
"On instructions from Her Majesty’s Principal Secretary of State for Foreign Affairs, I have the honour to declare in accordance with the provisions of Article 25 (art. 25) of the Convention for the Protection of Human Rights and Fundamental Freedoms, signed at Rome on the 4th November, 1950, that the Government of the United Kingdom of Great Britain and Northern Ireland recognise, in respect of the United Kingdom of Great Britain and Northern Ireland only and not, pending further notification, in respect of any other territory for the international relations of which the Government of the United Kingdom are responsible, for the period beginning on the 14th January 1966, and ending on 13th of January 1969, the competence of the European Commission of Human Rights to receive petitions submitted to the Secretary General of the Council of Europe subsequently to the 13th of January 1966, by any person, non-governmental organisation or group of individuals claiming, in relation to any act or decision occurring or any facts or events arising subsequently to the 13th of January 1966, to be the victim of a violation of the rights set forth in that Convention and in the Protocol thereto which was opened for signature at Paris on the 20th March 1952.
This declaration does not extend to petitions in relation to anything done or occurring in any territory in respect of which the competence of the European Commission of Human Rights to receive petitions has not been recognised by the Government of the United Kingdom or to petitions in relation to anything done or occurring in the United Kingdom in respect of such a territory or of matters arising there."


ITEMID: 001-111263
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: CHAMBER
DATE: 2012
DOCNAME: CASE OF ADEMOVİČ v. TURKEY
IMPORTANCE: 4
CONCLUSION: Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Access to court);Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - General principles of international law)
JUDGES: Françoise Tulkens;Guido Raimondi;Helen Keller;Paulo Pinto De Albuquerque
TEXT: 5. The applicant was born in 1972 and lives in Serbia.
6. In 1992 the applicant was found guilty of drug trafficking and sentenced to seventeen years’ imprisonment by an Italian court in abstentia.
7. On 11 August 1994 the applicant was arrested and taken into custody at the Kapıkule border in Edirne, on the basis of a Red Notice issued by Italy via Interpol.
8. On 12 August 1994 the judge at the Edirne Magistrates’ Court ordered the applicant’s provisional arrest on the basis of Article 9 of the former Criminal Code and Article 16 of the European Convention on Extradition.
9. On 20 September 1994 the Ministry of Justice sent a letter to the Edirne Public Prosecutor informing him that, on 10 June 1992, the applicant had been sentenced to seventeen years’ imprisonment for drug trafficking in Italy. On the same day, the public prosecutor stated that the applicant should remain under provisional arrest until the decision of the Council of Ministers regarding his extradition.
10. On 4 October 1994 the Edirne Criminal Court delivered a decision, pursuant to Article 9 of the former Criminal Code (Law no. 765), indicating the applicant’s nationality and the nature of the offences allegedly committed.
11. On 3 November 1994 the applicant’s lawyer requested the Ministry of Justice to allow his client to be tried in Turkey for the crimes he had allegedly committed there. Subsequently, a preliminary investigation was initiated into the applicant’s activities and, on 9 November 1994, the applicant was remanded in custody in connection with the offences he had allegedly committed in Turkey.
12. On 2 December 1994 the Edirne Public Prosecutor filed a bill of indictment charging the applicant with drug trafficking under Article 403 of the former Criminal Code.
13. On 6 January 1995 the Council of Ministers decided to extradite the applicant to Italy when his trial in Turkey was over.
14. On 19 April 1995 the applicant’s trial commenced before the Istanbul State Security Court. On 10 October 1997 the court ordered the applicant’s release pending trial. On the same day, he was placed in provisional detention again with a view to his extradition to Italy on the basis of the order of the Edirne Magistrates’ Court dated 12 August 1994.
15. On 11 April 2002 the Istanbul State Security Court informed the Ministry of Justice that the applicant could be extradited to Italy.
16. In the meantime, the applicant had filed several petitions with the Edirne Criminal Court, requesting his release. In all his petitions, he argued that his prolonged provisional detention with a view to his extradition was illegal. On 24 January 2003 the applicant’s lawyer once again requested the Edirne Criminal Court to lift the decision for the applicant’s provisional arrest and to order his release. In his petition, he relied on Article 16 of the European Convention on Extradition, which limited the length of the provisional detention to forty days after arrest. The applicant further maintained that by virtue of Article 90 of the Constitution international agreements adopted by Turkey formed an integral part of the domestic law, and thus his prolonged detention with a view to extradition for more than five years constituted a breach of Article 16 of the European Convention on Extradition. On 25 January 2003 the court dismissed this request without providing any answer to the applicant’s claim regarding the European Convention on Extradition. On 29 January 2003 the applicant’s lawyer objected to the decision of 25 January 2003, again making a reference to the European Convention on Extradition and arguing that his provisional detention, which had exceeded five years, was illegal. On 30 January 2003 the Edirne Assize Court rejected the applicant’s request for release, upholding the reasoning of the Edirne Criminal Court.
17. On 7 February 2003 the applicant was extradited to Italy.
18. On 29 June 2004 State Security Courts were abolished by Law no. 5190 and the criminal proceedings against the applicant were therefore transferred to the Istanbul Assize Court.
19. On 16 February 2005 the criminal proceedings against the applicant were terminated as the statutory time-limit had expired. On 4 July 2005 the Court of Cassation upheld the judgment.
20. On an unspecified date, the applicant returned to Serbia, where he currently resides.
21. The European Convention on Extradition which was signed in Paris on 13 December 1957 and which came into force on 11 May 1986 provides as follows:
“The Contracting Parties undertake to surrender to each other, subject to the provisions and conditions laid down in this Convention, all persons against whom the competent authorities of the requesting Party are proceeding for an offence or who are wanted by the said authorities for the carrying out of a sentence or detention order.”
“1. In case of urgency the competent authorities of the requesting Party may request the provisional arrest of the person sought. The competent authorities of the requested Party shall decide the matter in accordance with its law. ...
4. Provisional arrest may be terminated if, within a period of 18 days after arrest, the requested Party has not received the request for extradition ... It shall not, in any event, exceed 40 days from the date of such arrest.”
“1. The requested Party may, after making its decision on the request for extradition, postpone the surrender of the person claimed in order that he may be proceeded against by that Party or, if he has already been convicted, in order that he may serve his sentence in the territory of that Party for an offence other than that for which extradition is requested.
2. The requested Party may, instead of postponing surrender, temporarily surrender the person claimed to the requesting Party in accordance with conditions to be determined by mutual agreement by the Parties.”
22. Article 90 § 5 of the Constitution reads:
“... International treaties that are duly in force are directly applicable in domestic law. Their constitutionality cannot be challenged in the Constitutional Court.
In the event of conflict as to the scope of fundamental rights and freedoms between an international agreement duly in force and a domestic statute, the provisions of the international agreement shall prevail.”
23. Article 3 reads:
“Whoever commits a crime in Turkey shall be punished in accordance with Turkish law, and a Turk, even if sentenced in a foreign country for a commission of a crime, shall be retried in Turkey.”
24. Article 9 reads:
“The Turkish State shall not accede to a request for the extradition of an alien by a foreign country for offences that are political in nature or related thereto.
When called upon to deal with a request by a foreign State for the extradition of an alien, the criminal court with jurisdiction for the place in which the person concerned is located shall determine that person’s nationality and the nature of the offence.
...
If the criminal court finds that the person whose extradition is requested is an alien and that the offence is an ordinary criminal offence the request for extradition may be granted by the Government.
The investigating judge may order the detention of the alien pending his extradition.”
25. Section 1 provides:
“Compensation shall be paid by the State in respect of all damage sustained by persons:
(1) who have been arrested, or detained under conditions or in circumstances incompatible with the Constitution or statute;
(2) who have not been immediately informed of the reasons for their arrest or detention;
(3) who have not been brought before a judicial officer after being arrested or detained within the time allowed by statute for that purpose;
(4) who have been deprived of their liberty without a court order after the statutory time allowed for being brought before a judicial officer has expired;
(5) whose close family have not been immediately informed of their arrest or detention;
(6) who, after being arrested or detained in accordance with the law, are not subsequently committed for trial ..., or are acquitted or discharged after standing trial; or
(7) who have been sentenced to a term of imprisonment shorter than the period spent in detention or ordered to pay a pecuniary penalty only...”
VIOLATED_ARTICLES: 6
P1
VIOLATED_PARAGRAPHS: 6-1
P1-1
VIOLATED_BULLETPOINTS: P1-1-1


ITEMID: 001-104962
LANGUAGEISOCODE: ENG
RESPONDENT: POL
BRANCH: CHAMBER
DATE: 2011
DOCNAME: CASE OF ZABŁOCKI v. POLAND
IMPORTANCE: 4
CONCLUSION: Violation of Art. 6-1+6-3
JUDGES: Lech Garlicki;Ledi Bianku;Nicolas Bratza;Päivi Hirvelä;Sverre Erik Jebens;Vincent A. De Gaetano
TEXT: 5. The applicant was born in 1949 and lives in Koszalin.
6. On 11 April 1997 the parliament passed the Law on disclosing work for or service in the State’s security services or collaboration with them between 1944 and 1990 by persons exercising public functions (ustawa o ujawnieniu pracy lub służby w organach bezpieczeństwa państwa lub współpracy z nimi w latach 19441990 osób pełniących funkcje publiczne; “the 1997 Lustration Act”). It entered into force on 3 August 1997. Persons falling under the provisions of the 1997 Lustration Act, i.e. candidates or holders of public office such as ministers and members of parliament, were required to declare whether or not they had worked for or collaborated with the security services during the communist regime. The provisions of the Act extended to, inter alia, judges, prosecutors, advocates and members of the supervisory boards and boards of directors of the “Polish Television SA” and “Polish Radio SA” as well as their local branches.
7. On 15 December 1998 the applicant, a member of the supervisory board of the Koszalin Branch of the National Radio (Rada Nadzorcza Rozgłośni Regionalnej Polskiego Radia, Radio Koszalin SA) declared that he had not collaborated with the communistera secret services.
8. In 2002 the applicant became a member of the board of directors of the same radio (Zarząd).
9. In February 2005 the Commissioner of the Public Interest (Rzecznik Interesu Publicznego) informed the applicant that he had doubts as to the truthfulness of his lustration declaration.
10. On 23 September 2005 the Warsaw Court of Appeal (Sąd Apelacyjny) decided to institute lustration proceedings against the applicant following a request made by the Commissioner on the grounds that the applicant had lied in his lustration declaration by denying that he had cooperated with the secret services.
11. The Court of Appeal held hearings on 23 November, 8 December 2005 and 25 July and 20 September 2006. The applicant, who was not represented, attended the hearings although he lived in Koszalin, 450 kilometres away from the court. The hearings were not open to the public.
12. On 20 September 2006 the Warsaw Court of Appeal, acting as the firstinstance lustration court, found that the applicant had submitted an untrue lustration declaration since he had been an intentional and secret collaborator with the State’s secret services. The court established that between 1971 and 1974 the applicant, at that time a student at Torun University, had been a secret collaborator (TW, tajny współpracownik) and had signed a socalled collaboration commitment (zobowiązanie do współpracy). The court based its findings on the statements made by Mr A.W., an officer of the Security Service (Służba Bezpieczeństwa, “the SB”) who had recruited him. The court established that the applicant had met with Mr A.W. several times and had once received financial payment. All the documents collected in the case were classified as confidential and could be consulted by the applicant in the secret registry of the lustration court.
13. The applicant appealed against the decision. He submitted that he had never collaborated with the SB and had not passed any information to it. He contested the authenticity of the documents, the originals of which had been destroyed and only microfilms of which had been preserved.
14. On 10 January 2007 the Warsaw Court of Appeal, acting as the secondinstance lustration court, upheld the impugned judgment. The court established that the evidence in the case had not been extensive but had obviously pointed to the fact that the applicant had been an intentional and secret collaborator with the SB.
15. On 28 August 2007 the Supreme Court (Sąd Najwyższy) dismissed the applicant’s cassation appeal as being manifestly illfounded. The applicant was barred from holding public office for a period of ten years in application of the 1997 Lustration Act.
16. The relevant law and practice concerning lustration proceedings in Poland are set out in the Court’s judgment in the case of Matyjek v. Poland, no. 38184/03, § 2739, ECHR 2007V.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1
6-3


ITEMID: 001-75152
LANGUAGEISOCODE: ENG
RESPONDENT: HUN
BRANCH: CHAMBER
DATE: 2006
DOCNAME: CASE OF KESZTHELYI v. HUNGARY
IMPORTANCE: 4
CONCLUSION: Violation of Art. 6-1;Not necessary to examine under P1-1;Non-pecuniary damage - financial award
TEXT: 4. The applicant was born in 1928 and lives in Budapest.
5. In the context of a real estate dispute, the applicant and her late husband brought an action before the Buda Surroundings District Court apparently in July 1987. The action concerned their claim to possess part of a disputed real estate and their request that the relevant land registry entry be rectified.
6. On 20 November 1996 the District Court gave a partial decision as to the boundaries of the disputed land. As regards the land registry entry, the District Court ordered that this question be severed and dealt with by the Administrative Chamber of the District Court.
7. On 23 September 1997 the Pest County Regional Court suspended the appellate proceedings concerning the partial decision, pending the proceedings before the Administrative Chamber of the District Court. The latter held hearings on 7 October and 2 December 1997 and 27 January 1998. On that date it rejected part of the action and suspended the examination of another aspect of the case.
8. Meanwhile, the applicant and her late husband filed an application (no. 26209/95) with the European Commission of Human Rights (“the Commission”) complaining in essence about the protraction of the proceedings. On 21 May 1997 the application was declared partly admissible. On 9 December 1997 the First Chamber of the Commission adopted its Report under former Article 28 of the Convention, observing that the parties had concluded a friendly settlement.
9. On 22 June 1998 the Pest County Regional Court dismissed the plaintiffs’ appeal against the decision of 27 January 1998. On 14 June 1999 the Supreme Court dismissed their petition for review.
10. Following the subsequent adjudication of the question whose examination had been suspended on 27 January 1998 – in those proceedings the Regional Court held a hearing on 18 June 2001 and gave judgement on 25 June 2001 – the proceedings resumed in their part suspended on 23 September 1997.
11. The Regional Court held hearings on 9 May, 13 June and 1 October 2002. On 22 October 2002 it accepted the plaintiffs’ claims and ordered the land registry to restore the original situation. On 20 March 2003 it rejected the plaintiffs’ request for rectification.
12. In the resumed administrative proceedings, on 7 July 2004 the Buda Surroundings Land Registry refused to restore the original situation, observing that this was impossible because of the physical and legal changes concerning the disputed land in the meantime.
13. On 10 December 2004 the Pest County Land Registry dismissed the applicant’s administrative appeal.
14. On 24 January 205 the applicant brought an action for judicial review. A first hearing was scheduled by the Regional Court for 15 September 2005.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-72697
LANGUAGEISOCODE: ENG
RESPONDENT: POL
BRANCH: ADMISSIBILITY
DATE: 2006
DOCNAME: WIENSZTAL V. POLAND
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Nicolas Bratza
TEXT: The applicant, Mr Rafał Wiensztal, is a Polish national, who was born in 1969 and lives in Radom, Poland. He was represented before the Court by Mr P. Rybiński, a lawyer practising in Gdańsk. The respondent Government were represented by their Agent, Mr J. Wołąsiewicz of the Ministry of Foreign Affairs.
The applicant was arrested on 24 August 1994 on suspicion of extorting protection money from an escort agency. By a decision of 26 August 1994 given by the Gdańsk Regional Prosecutor the applicant and other suspects were detained on remand. On 2 September 1994 the applicant’s lawyer appealed against the decision of 26 August 1994. His appeal was dismissed by a court on 8 September 1994.
On 24 October 1994 the Gdańsk Regional Prosecutor dismissed the applicant’s lawyer’s appeal of 19 October 1994 against the detention decision, considering that a number of witnesses had given evidence incriminating all the suspects. On 24 October 1994 the Gdańsk Regional Prosecutor ordered the applicant to undergo psychiatric observation.
On 10 November 1994 the Gdańsk Regional Court prolonged the applicant’s detention on remand till 21 January 1995, considering that the charges against the applicant were of a serious nature and that they had been supported by the evidence gathered in the proceedings. The court pointed out that the investigation had not yet been completed and that the group the applicant belonged to had brought improper pressure upon the witnesses to change their testimony.
On 21 November 1994 an expert opinion on the state of the applicant’s mental health was issued.
On 7 December 1994 the Gdańsk Court of Appeal dismissed the applicant’s lawyer’s appeal of 24 November 1994 against the decision of 10 November 1994 prolonging the applicant’s detention on remand. The court emphasised that there was a strong likelihood that the applicant might obstruct the proper course of the proceedings by inciting the witnesses to give false testimony. The court also stated that the applicant’s case did not disclose any of the grounds for release provided by Article 218 of the Code of Criminal Procedure.
On 17 January 1995 the Gdańsk Regional Court prolonged the applicant’s detention on remand until 31 March 1995. It found that in view of the seriousness of the offence he was charged with, the strong probability of his guilt and the danger of him (or another member of the group) exerting additional pressure on the witnesses, the applicant’s detention was warranted. The court also pointed to the necessity of taking further evidence.
On 10 February 1995 the Gdańsk Regional Prosecutor dismissed the applicant’s lawyer’s request that the preventive measure be replaced by a more lenient one, considering that the grounds on which the detention on remand had been ordered had not ceased to exist. On 9 March 1995 the Gdańsk Appellate Prosecutor dismissed the lawyer’s appeal against this decision, relying on the grounds previously invoked by the courts.
By a decision of 21 March 1995 the Gdańsk Regional Court prolonged the applicant’s detention on remand until 30 June 1995. The court was of the opinion that the applicant’s detention was justified by the strong probability of his guilt, the necessity to obtain further evidence and the risk of pressure being brought to bear on the witnesses. On 5 April 1995 the applicant’s lawyer appealed against this decision. On 12 April 1995 the Gdańsk Court of Appeal upheld it, referring to the seriousness of the offence in question and the complexity of the case. The court remarked that the negative effect of the continuing detention upon his family situation was not such as to call for his release.
On 27 June 1995 the bill of indictment was lodged with the Gdańsk Regional Court against the applicant and eleven co-accused.
The court held hearings on 9, 16 and 23 November 1995. It heard the coaccused and several witnesses.
The hearing fixed for 11 January 1996 was adjourned due to the absence of the lawyer representing one of the co-accused. On 17 January 1996 another hearing was held. The court heard four witnesses.
At the hearing of 25 January 1996 the applicant lodged an application for release. The court refused, considering that his detention was justified by the existence of strong evidence of his guilt, the nature of the charges against him and a risk of interference with witnesses in order to influence their testimony. Moreover, conditions for release referred to in Article 218 of the Code of Criminal Procedure were not satisfied. The hearing was then adjourned in view of the absence of the applicant’s lawyer.
On 5 March 1996 the applicant appointed a new lawyer to represent him.
On 6 March 1996 the court held a hearing and heard seven witnesses.
On 15 March 1996, in a separate set of criminal proceedings, the applicant was sentenced by the Elbląg Regional Court to two and a half years imprisonment and a fine. He served his sentence between 15 March 1996 and 11 September 1997.
The hearing scheduled for 20 March 1996 was adjourned following a request of one of the lawyers. On 22 May and on 3 June 1996 the court held hearings. At the hearing held on 18 June 1996 the court dismissed the applicant’s request for release, referring to the gravity of the charges against him and considering that his case did not disclose any of the grounds for release provided by Article 218 of the Code of Criminal Procedure. The hearing was adjourned due to the absence of one of the co-accused.
Hearings fixed for 7 and 21 August and 11 and 18 October 1996 were cancelled for various reasons, mostly because of the absence of defence lawyers. On 15 November 1996 the court held a hearing and heard four witnesses. The hearing scheduled for 22 November 1996 was adjourned because of the illness of one of the lawyers. The court dismissed the applicant’s request for release, considering that his continuing detention was necessary to ensure the proper conduct of the proceedings and that there were no grounds for releasing the applicant under Article 218 of the Code of Criminal Procedure.
On 30 December 1996 the Gdańsk Regional Court requested the Supreme Court to prolong the applicant’s detention until 30 June 1997, submitting that from 9 November 1995 until 22 November 1996 nineteen hearings had been fixed but only eight out of them had in fact been held. The adjournments had been ordered mainly due to the absence of defence counsel. The co-accused and 41 witnesses had been heard until then, nevertheless 65 witnesses remained to be examined. On 16 January 1997 the Supreme Court granted the Regional Court’s request, pointing to the complexity of the case and concluding that the delay in the proceedings could not be attributed to the Regional Court.
On 5 February 1997 the court held a hearing and heard 8 witnesses.
The hearing scheduled for 5 March and 16 April 1997 were adjourned due to the absence of one of the co-accused and the illness of some lawyers. On 4 June 1997 the court held a hearing and heard seven witnesses. The court did not allow the applicant’s request for release. The hearing scheduled for 11 June 1997 was adjourned due to the absence of some of the lawyers.
On 26 June 1997 the Gdańsk Regional Court lodged a request with the Supreme Court to prolong the applicant’s detention until 31 December 1997. The court submitted that hearings had been held on 5 February 1997 and on 4 June 1997. The hearings scheduled on 19 February 1997, 5 March 1997, 16 April 1997 and 11 June 1997 had been adjourned or cancelled because of the illnesses of the accused and the defending counsel. The court had heard 15 witnesses, but 50 other witnesses were still to be examined and the continuing detention was necessary to ensure the proper conduct of the proceedings. On 13 August 1997 the Supreme Court, relying on the grounds given above, prolonged the applicant’s detention. However, the limit of the duration of the detention was set to 1 December 1997 and not to 31 December 1997 as the Regional Court had requested.
The hearing held on 11 September 1997 was adjourned due to the absence of one of the co-accused.
On 16 September 1997 the Gdańsk Regional Court refused to release the applicant, observing that he had failed to indicate any new relevant circumstances in the case.
The hearing scheduled for 25 September 1997 was adjourned as one of the co-accused was ill.
The hearing scheduled for 1 October 1997 was adjourned because of the illness of the judge rapporteur.
The hearing held on 13 October 1997 was adjourned as two of the coaccused did not appear.
On 25 November 1997 the Gdańsk Regional Court again requested the Supreme Court to prolong the applicant’s detention on remand. On 19 December 1997 the Supreme Court granted this request and prolonged the applicant’s detention on remand until 30 April 1998. The Supreme Court observed that a number of hearings had not been held due to the absence of either the co-accused or their defence counsel. Moreover, the composition of the court had to be changed owing to the illness of the presiding judge. The case was complex and multi-layered and the charges of a serious nature. In addition, some of the accused had contributed to the overall length of the proceedings by lodging motions with the court. In these circumstances, even though the proceedings in the case had been lengthy, the Regional Court could not be held responsible for this delay.
On 30 December 1997 the court decided to issue an arrest warrant in respect of the co-accused who had kept failing to attend hearings.
The hearings fixed for 7 January and 11 February 1998 were adjourned due to the absence of one of the co-accused.
On 25 February 1998, as a result of the change in its composition, the court recommenced the examination of the case. The co-accused had not agreed to continue the proceedings with new judges. The court decided to exclude two of the co-accused who would not appear at the hearings. The court adjourned the hearing due to the absence of some of the lawyers.
On 12 and 26 March the court held hearings. It heard the co-accused and 13 witnesses. On 8 April 1998 the court adjourned the hearing as the applicant’s lawyer and other co-accused did not appear.
On 30 April 1998 the applicant was released under police supervision.
On 22 October 2002 the court gave a judgment by which the applicant was convicted as charged and sentenced to three years’ imprisonment.
On 17 September 2004 the Law of 17 June 2004 on complaints about a breach of the right to a trial within a reasonable time (Ustawa o skardze na naruszenie prawa strony do rozpoznania sprawy w postępowaniu sądowym bez nieuzasadnionej zwłoki) (“the 2004 Act”) entered into force. It lays down various legal means designed to counteract and/or redress the undue length of judicial proceedings.
Article 2 of the 2004 Act reads, in so far as relevant:
“1. Parties
Article 5 reads, in so far as relevant:
“1. A complaint about the unreasonable length of proceedings shall be lodged while the proceedings are pending. ...”
Article 12 provides for measures that may be applied by the court dealing with the complaint. It reads, in so far as relevant:
“1. The court shall dismiss a complaint which is unjustified.
2. If the court considers that the complaint is justified, it shall find that there was an unreasonable delay in the impugned proceedings.
3. At the request of the complainant, the court may instruct the court examining the merits of the case to take certain measures within a fixed time-limit. Such instructions shall not concern the factual and legal assessment of the case.
4. If the complaint is justified the court may, at the request of the complainant, grant ... just satisfaction in an amount not exceeding PLN 10,000 to be paid by the State Treasury. If such just satisfaction is granted it shall be paid out of the budget of the court which conducted the delayed proceedings.”
Article 18 lays down transitional rules in relation to the applications already pending before the Court. It reads, in so far as relevant:
“1. Within six months after the date of entry into force of this law persons who, before that date, had lodged a complaint with the European Court of Human Rights ... complaining of a breach of the right to a trial within a reasonable time guaranteed by Article 6 (1) of the Convention for the Protection of Human Rights and Fundamental Freedoms ..., may lodge a complaint about the unreasonable length of the proceedings on the basis of the provisions of this law if their complaint to the Court had been lodged in the course of the impugned proceedings and if the Court has not adopted a decision concerning the admissibility of their case.
...”
On 18 January 2005 Supreme Court (Sąd Najwyższy) adopted a resolution (no. III SPP 113/04) in which it ruled that while the 2004 Act produced legal effects as from the date of its date of entry into force (17 September 2004), its provisions applied retroactively to all proceedings in which delays had occurred before that date and had not yet been remedied.