ITEMID: 001-89893
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: GRANDCHAMBER
DATE: 2008
DOCNAME: CASE OF SALDUZ v. TURKEY
IMPORTANCE: 1
CONCLUSION: Violation of Art. 6-3-c+6-1;Violation of Art. 6-1;Non-pecuniary damage - award
JUDGES: Alvina Gyulumyan;Antonella Mularoni;Christos Rozakis;Dean Spielmann;Elisabet Fura;Françoise Tulkens;Ineta Ziemele;Ireneu Cabral Barreto;Ján Šikuta;Jean-Paul Costa;Josep Casadevall;Luis López Guerra;Mark Villiger;Mindia Ugrekhelidze;Mirjana Lazarova Trajkovska;Nicolas Bratza;Rait Maruste;Renate Jaeger;Stanislav Pavlovschi;Vladimiro Zagrebelsky
TEXT: 11. The applicant was born on 2 February 1984 and lives in İzmir.
12. On 29 May 2001 at about 10.15 p.m., the applicant was taken into custody by police officers from the anti-terrorism branch of the İzmir Security Directorate on suspicion of having participated in an unlawful demonstration in support of an illegal organisation, namely the PKK (the Workers’ Party of Kurdistan). The applicant was also accused of hanging an illegal banner from a bridge in Bornova on 26 April 2001.
13. At about 12.30 a.m. on 30 May 2001 the applicant was taken to the Atatürk Teaching and Research Hospital, where he was examined by a doctor. The medical report stated that there was no trace of ill-treatment on his body.
14. Subsequently, at about 1 a.m., the applicant was interrogated at the anti-terrorism branch in the absence of a lawyer. According to a form explaining arrested persons’ rights which the applicant had signed, he had been reminded of the charges against him and of his right to remain silent. In his statement, the applicant admitted his involvement in the youth branch of HADEP (Halkın Demokrasi Partisi – the People’s Democracy Party). He gave the names of several persons who worked for the youth branch of the Bornova District Office. He explained that he was the assistant youth press and publications officer and was also responsible for the Osmangazi neighbourhood. He further stated that it had been part of his job to assign duties to other members of the youth branch. He admitted that he had participated in the demonstration on 29 May 2001 organised by HADEP in support of the imprisoned leader of the PKK. He said that there had been about sixty demonstrators present and that the group had shouted slogans in support of Öcalan and the PKK. He had been arrested on the spot. He also admitted that he had written “Long live leader Apo” on a banner which had been hung from a bridge on 26 April 2001. The police took samples of the applicant’s handwriting and sent it to the police laboratory for examination.
15. On 1 June 2001 the İzmir Criminal Police Laboratory issued a report after comparing the applicant’s handwriting to that on the banner. It concluded that although certain characteristics of the applicant’s handwriting bore similarities to the handwriting on the banner, it could not be established whether or not the writing on the banner was in fact his.
16. At 11.45 p.m. on 1 June 2001 the applicant was again examined by a doctor, who stated that there were no traces of ill-treatment on his body.
17. On the same day, the applicant was brought before the public prosecutor and subsequently the investigating judge. Before the public prosecutor, he explained that he was not a member of any political party, but had taken part in certain activities of HADEP. He denied fabricating an illegal banner or participating in the demonstration on 29 May 2001. He stated that he was in the Doğanlar neighbourhood to visit a friend when he was arrested by the police. The applicant also made a statement to the investigating judge, in which he retracted his statement to the police, alleging that it had been extracted under duress. He claimed that he had been beaten and insulted while in police custody. He again denied engaging in any illegal activity and explained that on 29 May 2001 he had gone to the Doğanlar neighbourhood to visit a friend and had not been part of the group shouting slogans. After the questioning was over, the investigating judge remanded the applicant in custody, having regard to the nature of the offence of which he was accused and the state of the evidence. The applicant was then allowed to have access to a lawyer.
18. On 11 July 2001 the public prosecutor at the İzmir State Security Court filed an indictment with that court accusing the applicant and eight other accused of aiding and abetting the PKK, an offence under Article 169 of the Criminal Code and section 5 of the Prevention of Terrorism Act (Law no. 3713).
19. On 16 July 2001 the State Security Court held a preparatory hearing. It decided that the applicant’s detention on remand should be continued and that the accused be invited to prepare their defence submissions.
20. On 28 August 2001 the State Security Court held its first hearing, in the presence of the applicant and his lawyer. It heard evidence from the applicant in person, who denied the charges against him. The applicant also rejected the police statement, alleging that it had been extracted from him under duress. He explained that while he was in custody, police officers had ordered him to copy the words from a banner. He also stated that he had witnessed the events that had taken place on 29 May 2001; however, he had not taken part in the demonstration as alleged. Instead, he had been in the neighbourhood to visit a friend named Özcan. He also denied hanging an illegal banner from a bridge on 26 April 2001.
21. At the next hearing, which was held on 25 October 2001, the applicant and his lawyer were both present. The court also heard from other accused persons, all of whom denied having participated in the illegal demonstration on 29 May 2001 and retracted statements they had made previously. The prosecution then called for the applicant to be sentenced pursuant to Article 169 of the Criminal Code and the applicant’s lawyer requested time to submit the applicant’s defence submissions.
22. On 5 December 2001 the applicant made his defence submissions. He denied the charges against him and requested his release. On the same day, the İzmir State Security Court delivered its judgment. It acquitted five of the accused and convicted the applicant and three other accused as charged. It sentenced the applicant to four years and six months’ imprisonment, which was reduced to two and a half years as the applicant had been a minor at the time of the offence.
23. In convicting the applicant, the State Security Court had regard to the applicant’s statements to the police, the public prosecutor and the investigating judge respectively. It also took into consideration his co-defendants’ evidence before the public prosecutor that the applicant had urged them to participate in the demonstration of 29 May 2001. The court noted that the co-defendants had also given evidence that the applicant had been in charge of organising the demonstration. It further took note of the expert report comparing the applicant’s handwriting to that on the banner and of the fact that, according to the police report on the arrest, the applicant had been among the demonstrators. It concluded:
“... in view of these material facts, the court does not accept the applicant’s denial and finds that his confession to the police is substantiated.”
24. On 2 January 2002 the applicant’s lawyer appealed against the judgment of the İzmir State Security Court. In her notice of appeal, she alleged a breach of Articles 5 and 6 of the Convention, arguing that the proceedings before the first-instance court had been unfair and that the court had failed to assess the evidence properly.
25. On 27 March 2002 the Principal Public Prosecutor at the Court of Cassation lodged a written opinion with the Ninth Division of the Court of Cassation in which he submitted that the Division should uphold the judgment of the İzmir State Security Court. This opinion was not served on the applicant or his representative.
26. On 10 June 2002 the Ninth Division of the Court of Cassation, upholding the İzmir State Security Court’s reasoning and assessment of the evidence, dismissed the applicant’s appeal.
27. The relevant provisions of the former Code of Criminal Procedure (Law no. 1412), namely Articles 135, 136 and 138, provided that anyone suspected or accused of a criminal offence had a right of access to a lawyer from the moment they were taken into police custody. Article 138 clearly stipulated that for juveniles, legal assistance was obligatory.
28. According to section 31 of Law no. 3842 of 18 November 1992, which amended the legislation on criminal procedure, the above-mentioned provisions were not applicable to persons accused of offences falling within the jurisdiction of the State Security Courts.
29. On 15 July 2003, by Law no. 4928, the restriction on an accused’s right of access to a lawyer in proceedings before the State Security Courts was lifted.
30. On 1 July 2005 a new Code of Criminal Procedure entered into force. According to the relevant provisions of the new Code (Articles 149 and 150), all detained persons have the right of access to a lawyer from the moment they are taken into police custody. The appointment of a lawyer is obligatory if the person concerned is a minor or if he or she is accused of an offence punishable by a maximum of at least five years’ imprisonment.
31. Finally, section 10 of the Prevention of Terrorism Act (Law no. 3713), as amended on 29 June 2006, provides that for terrorist-related offences, the right of access to a lawyer may be delayed for twenty-four hours on the order of a public prosecutor. However, the accused cannot be interrogated during this period.
32. The Recommendation of the Committee of Ministers to member States of the Council of Europe concerning new ways of dealing with juvenile delinquency and the role of juvenile justice (Rec(2003)20), adopted on 24 September 2003 at the 853rd meeting of the Ministers’ Deputies, in so far as relevant, reads as follows:
“15. Where juveniles are detained in police custody, account should be taken of their status as a minor, their age and their vulnerability and level of maturity. They should be promptly informed of their rights and safeguards in a manner that ensures their full understanding. While being questioned by the police they should, in principle, be accompanied by their parent/legal guardian or other appropriate adult. They should also have the right of access to a lawyer and a doctor ...”
33. The Recommendation of the Committee of Ministers to member States of the Council of Europe on social reactions to juvenile delinquency (Recommendation No. R (87) 20), adopted on 17 September 1987 at the 410th meeting of the Ministers’ Deputies, in so far as relevant, reads as follows:
“Recommends the governments of member States to review, if necessary, their legislation and practice with a view:
8. to reinforcing the legal position of minors throughout the proceedings, including the police interrogation, by recognising, inter alia:
– the right to the assistance of a counsel who may, if necessary, be officially appointed and paid by the State.”
34. Article 37 of the Convention on the Rights of the Child (CRC), in so far as relevant, reads as follows:
“States Parties shall ensure that: ...
(d) every child deprived of his or her liberty shall have the right to prompt access to legal and other appropriate assistance, as well as the right to challenge the legality of the deprivation of his or her liberty before a court or other competent, independent and impartial authority, and to a prompt decision on any such action.”
35. The relevant part of this text concerning legal assistance to minors in police custody provides as follows:
“49. The child must be guaranteed legal or other appropriate assistance in the preparation and presentation of his/her defence. CRC does require that the child be provided with assistance, which is not necessarily under all circumstances legal but it must be appropriate. It is left to the discretion of the States Parties to determine how this assistance is provided but it should be free of charge ...
...
52. The Committee recommends that the States Parties set and implement timelimits for the period between the communication of the offence and the completion of the police investigation, the decision of the prosecutor (or other competent body) to bring charges against the child, and the final adjudication and decision by the court or other competent judicial body. These time-limits should be much shorter than those set for adults. But at the same time, decisions without delay should be the result of a process in which the human rights of the child and legal safeguards are fully respected. In this decision-making process without delay, the legal or other appropriate assistance must be present. This presence should not be limited to the trial before the court or other judicial body, but also applies to all other stages of the process, beginning with the interviewing (interrogation) of the child by the police.”
36. The relevant part of this text provides as follows:
“66. The Committee recommends that the State Party continue reviewing the law and practices regarding the juvenile justice system in order to bring it into full compliance with the Convention [on the Rights of the Child], in particular Articles 37, 40 and 39, as well as with other relevant international standards in this area, such as the United Nations Standard Minimum Rules for the Administration of Juvenile Justice (the Beijing Rules) and the United Nations Guidelines for the Prevention of Juvenile Delinquency (the Riyadh Guidelines), with a view to raising the minimum legal age for criminal responsibility, extending the protection guaranteed by the Juvenile Law Court to all children up to the age of 18 and enforcing this law effectively by establishing juvenile courts in every province. In particular, it reminds the State Party that juvenile offenders should be dealt with without delay, in order to avoid periods of incommunicado detention, and that pre-trial detention should be used only as a measure of last resort, should be as short as possible and should be no longer than the period prescribed by law. Alternative measures to pre-trial detention should be used whenever possible.”
37. Rule 93 of the Standard Minimum Rules for the Treatment of Prisoners (Resolution (73) 5 of the Committee of Ministers of the Council of Europe) provides:
“An untried prisoner shall be entitled, as soon as he is imprisoned, to choose his legal representation ... and to receive visits from his legal adviser with a view to his defence and to prepare and hand to him and to receive, confidential instructions. At his request, he shall be given all necessary facilities for this purpose. ... Interviews between the prisoner and his legal adviser may be within sight but not within hearing, either direct or indirect, of a police or institution official.”
38. Furthermore, the Recommendation of the Committee of Ministers to member States of the Council of Europe on the European Prison Rules (Rec(2006)2), adopted on 11 January 2006 at the 952nd meeting of the Ministers’ Deputies, in so far as relevant, reads as follows:
“Legal advice
23.1 All prisoners are entitled to legal advice, and the prison authorities shall provide them with reasonable facilities for gaining access to such advice.
23.2 Prisoners may consult on any legal matter with a legal adviser of their own choice and at their own expense.
...
23.5 A judicial authority may in exceptional circumstances authorise restrictions on such confidentiality to prevent serious crime or major breaches of prison safety and security.”
39. Following its visit to Turkey in July 2000, the CPT published its report dated 8 November 2001 (CPT/Inf(2001)25). It stated:
“61. Despite the many changes to legislation in recent years, certain weaknesses remain as regards formal safeguards against ill-treatment. Perhaps the most important shortcoming is that persons detained on suspicion of collective offences falling under the jurisdiction of the State Security Courts are still not entitled to access to a lawyer during the first four days of their custody. Further, despite earlier affirmations to the contrary, the Turkish authorities made clear in their response to the report on the February/March 1999 visit that such persons are being denied during the first four days of their custody the possibility to inform a relative of their situation. Such incommunicado detention can only facilitate the infliction of ill-treatment.
The CPT must therefore reiterate once again the recommendation that all persons deprived of their liberty by the law enforcement agencies, including persons suspected of offences falling under the jurisdiction of the State Security Courts, be granted as from the outset of their custody the right of access to a lawyer. The CPT recognises that in order to protect the legitimate interests of the police investigation, it may exceptionally be necessary to delay for a certain period a detained person’s access to a lawyer of his choice; however, in such cases, access to another independent lawyer should be arranged.
The implementation of the above recommendation will require legislative measures. However, in the meantime, immediate steps should be taken to ensure that existing legal provisions are complied with. Indeed, the information gathered during the July 2000 ad hoc visit clearly indicates that even after the first four days of police custody, access to a lawyer for persons suspected of State Security Court offences is in practice the exception rather than the rule. The CPT recommends that the officials responsible for carrying out checks and inspections under the previously-mentioned compliance monitoring procedure be instructed to pay particular attention to whether persons suspected of collective offences falling under the jurisdiction of the State Security Courts are being informed of their right to have access to a lawyer after the first four days of their custody and are being placed in a position effectively to exercise that right.”
40. The CPT visited Turkey again in September 2001 and in its report dated 24 April 2002 (CPT/Inf(2002)8) stated:
“12. The amendments made to Article 16 of the Law on the Organisation and Trial Procedures of State Security Courts have also introduced an improvement as regards access to a lawyer for persons detained on suspicion of collective offences falling under the jurisdiction of State Security Courts. For such persons, the right of access to a lawyer becomes operative after the prosecutor has issued a written order for the extension of police custody beyond forty-eight hours; in other words, they are now denied access to a lawyer only for two days as compared to four days under the previous law.
Whilst welcoming this step forward, the CPT regrets that the opportunity was not taken to guarantee to persons detained for collective State Security Court offences a right of access to a lawyer as from the very outset of their custody (and hence align their rights in this respect with those of ordinary criminal suspects). The CPT trusts that the Turkish authorities will in the near future implement the Committee’s long-standing recommendation that all persons deprived of their liberty by law enforcement agencies, including persons suspected of offences falling under the jurisdiction of the State Security Courts, be granted as from the outset of their custody the right of access to a lawyer.
...
46. Reference has been made earlier to recent positive legislative developments concerning the rights of access to a lawyer and to have one’s custody notified to a relative (cf. paragraphs 12 to 14). They have further improved an already impressive legal and regulatory framework to combat torture and ill-treatment. Nevertheless, the CPT remains very concerned by the fact that persons detained on suspicion of collective offences falling under the jurisdiction of State Security Courts are still denied access to a lawyer during the first two days of their custody; its position on this point has been made clear in paragraph 12.
Further, the actual content of the right of access to a lawyer for persons suspected of State Security Court offences remains less well developed than in the case of ordinary criminal suspects. In particular, as far as the CPT can ascertain, it is still the case that such suspects are not entitled to have the lawyer present when making a statement to the police and that the procedure allowing for the appointment of a lawyer by the Bar Association is not applicable to them. Similarly, the provision making obligatory the appointment of a lawyer for persons under 18 still does not apply to juveniles who are detained on suspicion of State Security Court offences. In this regard, the CPT reiterates the recommendation already made in the report on the October 1997 visit, that the relevant provisions of Articles 135, 136 and 138 of the Code of Criminal Procedure be rendered applicable to persons suspected of offences falling under the jurisdiction of the State Security Courts.”
41. Article 14 § 3 (b) of the International Covenant on Civil and Political Rights provides that everyone charged with a criminal offence is to be entitled “[t]o have adequate time and facilities for the preparation of his defence and to communicate with counsel of his own choosing”.
42. In its Conclusions and Recommendations on Turkey, dated 27 May 2003 (CAT/C/CR/30/5), the Committee stated the following:
“5. The Committee expresses concern about
...
(c) allegations that persons in police custody have been denied prompt and adequate access to legal and medical assistance and that family members have not been promptly notified of their detention;
...
7. The Committee recommends that the State Party
(a) ensure that detainees, including those held for offences under the jurisdiction of State Security Courts, benefit fully in practice from the available safeguards against ill-treatment and torture, particularly by guaranteeing their right to medical and legal assistance and to contact with their families;
...”
43. In its General Comment No. 2, dated 24 January 2008 (CAT/C/GC/2), the Committee stated:
“13. Certain basic guarantees apply to all persons deprived of liberty. Some of these are specified in the Convention, and the Committee consistently calls upon the States Parties to use them. The Committee’s recommendations concerning effective measures aim to clarify the current baseline and are not exhaustive. Such guarantees include, inter alia, ... the right promptly to receive independent legal assistance ...”
44. Article 48 of the Charter of Fundamental Rights states that “[r]espect for the rights of the defence of anyone who has been charged shall be guaranteed”. Article 52 § 3 further states that the meaning and scope of the right guaranteed under Article 48 are the same as the equivalent right laid down by the European Convention on Human Rights.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1
6-3
VIOLATED_BULLETPOINTS: 6-3-c


ITEMID: 001-93088
LANGUAGEISOCODE: ENG
RESPONDENT: POL
BRANCH: CHAMBER
DATE: 2009
DOCNAME: CASE OF WRONSKI v. POLAND
IMPORTANCE: 4
CONCLUSION: Violation of Article 6 - Right to a fair trial
JUDGES: Giovanni Bonello;Lech Garlicki;Ledi Bianku;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä
TEXT: 5. The applicant was born in 1963 and lives in Gdynia.
6. On 30 March 1993 the Chief of the Gdańsk Regional Police Headquarters (Komenda Wojewódzka Policji) dismissed the applicant from the police service (he was held accountable for accepting bribes).
7. On 14 May 1993 the Chief of the Principal Police Headquarters (Komenda Główna Policji) upheld the decision.
8. In November 1992 the Gdynia prosecution authorities charged the applicant, a serving police officer at the time, with numerous counts of fraud.
9. On 30 June 1993 a bill of indictment against the applicant and eleven other suspects was lodged with the Gdynia District Court (Sąd Rejonowy).
10. The applicant did not submit any information concerning the court’s hearings between July 1993 and January 2005.
11. Two hearings, scheduled on 1 February and 8 March 2005, were adjourned as some of the suspects failed to appear.
12. Two hearings, scheduled on 12 April and 10 May 2005, were cancelled due to the judge’s illness.
13. On 7 June 2005 the court severed the charges against the applicant and four other accused.
14. Subsequently, the trial court held hearings on 12 and 26 July, 6 September, 12 October, 17 November and 12 December 2005, and 18 January, 15 February, 15 March, 19 April, 5 and 29 June and 19 July 2006.
15. On 21 July 2006 the Gdynia District Court convicted the applicant as charged and sentenced him to one year and six months’ imprisonment and a fine of 800 Polish zlotys (PLN).
16. On 25 September 2006 the applicant appealed.
17. On 11 December 2006 his appeal was dismissed by the Gdańsk Regional Court (Sąd Okręgowy).
18. On 2 October 2006 the applicant lodged a complaint under section 5 of 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”) and asked for just satisfaction.
19. On 13 November 2006 the Gdańsk Regional Court dismissed his complaint. It limited its examination of the length of proceedings issue to the period after the entry into force of the 2004 Act and stressed that the Act could not be applied to the protracted length of court proceedings occurring before that date. Having analysed the conduct of the District Court during the period after the entry into force of the 2004 Act, the Regional Court found that there were no delays for which the District Court could be held responsible. Pointing to the complexity of the case and the voluminous documentation gathered in the proceedings it held that the proceedings had been conducted with due diligence and within a reasonable time.
20. The relevant domestic law and practice concerning remedies for the excessive length of judicial proceedings, in particular the applicable provisions of the 2004 Act, are stated in the Court’s decisions in the cases of Charzyński v. Poland no. 15212/03 (dec.), §§ 12-23, ECHR 2005-V and Ratajczyk v. Poland no. 11215/02 (dec.), ECHR 2005-VIII and the judgment in the case of Krasuski v. Poland, no. 61444/00, §§ 34-46, ECHR 2005-V.
VIOLATED_ARTICLES: 6


ITEMID: 001-4876
LANGUAGEISOCODE: ENG
RESPONDENT: BGR
BRANCH: ADMISSIBILITY
DATE: 1999
DOCNAME: BOICHINOV v. BULGARIA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Matti Pellonpää
TEXT: The applicant is a Bulgarian national born in 1972 and residing in Biala Slatina, the region of Vratsa.
The facts of the case as submitted by the parties may be summarised as follows.
A.
1. Background

On an unspecified date in 1993, prior to the events in the present case, criminal proceedings were opened against the applicant and three other persons on charges that they had robbed a Ms P. in her presence, taking away 75 fur coats and some other objects. The applicant was detained on remand between 21 October 1993 and 22 February 1994 when he was released on bail. As of 1998 the case was pending for trial, a hearing having been fixed for 2 October 1998.
On 22 April 1995 in the area of the village Gabare three persons were shot and killed in their car in what was seen as an internal war between local criminal groups. According to the indictment the applicant and a Mr G. were in a car which was chased by the victims. At some point the two cars stopped, and the applicant, who had bought an automatic gun three weeks before the events, went out and fired the gun to kill all the victims, one after another. At his trial the applicant stated that he was present during the killings but that it had been Mr G. who had shot the victims.
2. The preliminary investigation
The applicant did not return home after the above events. On 25 April 1995 he voluntarily appeared at the police in Sofia where he was arrested and transferred to Vratsa.
On 27 or 28 April 1995 an investigator (следовател) officially charged the applicant on three counts of murder and ordered his detention on remand. On 27 or 28 April 1995 this decision was confirmed by a prosecutor.
Between April and June 1995 the investigator in the applicant’s case heard more than 30 witnesses and 8 medical, ballistic and other experts. Some of the witnesses were examined upon the request of the applicant’s lawyer of 19 May 1995. The investigator also made site visits and conducted an experiment, reconstructing the events of 22 April 1995. The investigator heard the applicant on at least four occasions during this period of time. He also collected other documentary evidence.
On 22 June 1995 the investigator requested the competent prosecutor to authorise the continuation of the investigation for another 60 days. By decision of 7 July 1995 the Regional Prosecutor’s Office (окръжна прокуратура) granted the request.
On 10 August 1995 the investigator appointed a psychiatric expert to examine the applicant. An expert in physics and chemistry was appointed on 12 October 1995 to analyse traces of gunpowder.
The investigator examined the applicant again on 21 November 1995. The applicant requested the collection of additional evidence. On 22 November 1995 the investigator appointed an expert in graphology. On 24 November 1995 the Chief Public Prosecutor’s Office (главна прокуратура) authorised the continuation of the preliminary investigation. On 8 December 1995 the investigator dealt with the applicant’s requests in relation to the collection of evidence in his case.
On 13 December 1995 the investigator completed his work on the case and sent it to the Regional Prosecutor’s Office. On 5 January 1996 the Prosecutor’s Office returned the case for further investigation with instructions to charge the applicant also with unlawful possession of arms.
On 22 January 1996 the investigator wrote a letter to the Regional Prosecutor’s Office in Vratsa explaining that the applicant insisted on the presence of his lawyer during the investigation and that the lawyer, who was from Sofia, had declined to come to Vratsa on several proposed dates. Finally the lawyer had agreed to come on 4 or 5 February 1996.
The additional preliminary investigation was concluded on 12 February 1996. On 22 February 1996 the Regional Prosecutor’s Office submitted an indictment to the Regional Court in Vratsa.
By decision of 10 April 1996 the Regional Court fixed a hearing for 28 May 1996. At the hearing on 28 May 1996 the applicant claimed that there had been breaches of procedure and requested that the case be referred for further preliminary investigation. The Court found that there had been procedural violations which necessitated the referral of the case back to the prosecutor. On 5 June 1996 the prosecutor returned the case to the investigator.
On 9 August 1996 the Prosecutor’s Office refused the applicant’s request for the replacement of the investigator.
On 16 August 1996 the investigator examined one witness. On 18 August 1996 the investigator allowed eight civil plaintiffs to consult the case-file.
On 7 October 1996 the applicant was examined by the investigator. On 14 October 1996 the investigator completed his work on the case and sent it to the Regional Prosecutor’s Office. On 23 October 1996 a new indictment was submitted to the Vratsa Regional Court.
During the preliminary investigation stage of the proceedings the applicant, who was legally represented, submitted to the investigator and to the prosecution authorities numerous complaints and requests. He complained of the behaviour of the investigator, about the visit arrangements in prison, about the delays in the examination of his case, requested his release and raised other matters.
3. The trial
By decision of 15 November 1996 the Court fixed a hearing for 29, 30 and 31 January 1997. On 28 November 1996 the Court inquired with the competent administrative authorities about the address of a witness.
On 29 and 30 January 1997, at the hearing, the Court admitted for joint examination six civil claims submitted by relatives of the victims, heard the applicant and 27 witnesses. Some of the witnesses refused to answer certain questions. Counsel for the applicant requested the collection of additional evidence.
The hearing was adjourned until 10 March 1997 when the court heard 6 witnesses and 2 experts. The Court again adjourned the hearing because of the failure of certain witnesses to appear and also in view of the request supported by the applicant’s lawyer for the appointment ballistic experts. This was apparently related to the divergence in the testimonies given by the applicant and Mr G. The applicant claimed inter alia that Mr G. had shot one of the victims during the chase, at a moment when the cars had still been in motion, whereas Mr G. claimed that the applicant had shot all the victims from a static position.
The hearing resumed on 13 May 1997 when the Court heard the applicant, the experts and 5 witnesses. The Court adjourned the hearing as two witnesses had not appeared. A warrant for the arrest of one of them had been issued, but his whereabouts had remained unknown.
On 27 June 1997, acting in camera, the Court ordered the admission in evidence of several objects.
The hearing resumed on 9 September 1997. At that hearing Mr G. partially altered his testimony. The Court adjourned the hearing until 6 November 1997.
By letter of 23 September 1997 the applicant requested the examination of two additional witnesses. On 6 October 1997 he requested to be examined with the use of a “lie-detector”. This request was refused.
On 6 November 1997, at the resumed hearing, the Court heard a police officer who participated at the applicant’s questioning during the first days after his detention and a shepherd, who was an eye-witness of the events. The applicant also gave additional testimony. Two other witnesses did not appear, the efforts to locate one of them having been fruitless.
The Court decided that the questioning of one of the witnesses which had not appeared was essential and listed the case for a hearing on 4 March 1998. The Court also accepted the request of the prosecution for the questioning of an anonymous witness.
On 4 March 1998 the hearing was adjourned until 6 and 7 May 1998 as the prosecutor had fallen ill and also because he had been unable to secure the attendance of the anonymous witness requested by him.
In April 1998 Mr G, the witness who had been with the applicant during the shooting on 22 April 1995, was murdered. According to the applicant, in whose submission Mr G. was the person who had shot the three victims on 22 April 1995, Mr G. found his death when he visited another witness with the intention to threaten him. The Government have not commented.
On 6 May 1998 the Court heard one anonymous witness and another witness. The anonymous witness stated, inter alia, that he feared for his life and declined to name certain persons in his testimony. The applicant submits he has discovered the identity of the anonymous witness.
The other witness who testified on 6 May 1998 altered his testimony given at the preliminary investigation, explaining that his previous version of the facts had been dictated to him by Mr G. who had threatened him and beaten him on two occasions in 1995.

At the close of the hearing the applicant’s lawyer and the civil plaintiffs requested the examination of additional witnesses. The Court granted these requests and adjourned the hearing until 29 and 30 June 1998, when it was again adjourned. The parties have not substantiated whether the Court examined any evidence at the hearing on 29 and 30 June 1998.
The hearing resumed on 28 October 1998. On that date the trial re-commenced as one of the lay judges had passed away and no reserve lay judge had been appointed. On 28 and 29 October 1998 the new composition of the Vratsa Regional Court examined several witnesses and adjourned the hearing.
4. Decisions on the continuation of the applicant’s detention
Following the applicant’s detention on remand on 27 April 1995 and until the first indictment his detention was confirmed by the Regional Prosecutor’s Office and by the Chief Public Prosecutor’s Office by decisions dated 7 July 1995, 14 November 1995, 20 November 1995 and 5 January 1996. The decisions of 27 April 1995 and 14 November 1995 stated that there was a danger of absconding, obstructing justice and re-offending. The decision of 20 November 1995 stated that there were no grounds justifying release. The parties have not substantiated the reasoning of the remaining decisions.
On 10 April 1996 a judge at the Vratsa Regional Court confirmed the applicant’s detention. Following the referral of the case back to the prosecution authorities, the detention was confirmed by their decisions of 5 June 1996, 8 July 1996 and 6 October 1996. The decision of 5 June 1996 did not contain any reasoning. The decision of 8 July 1996 stated that the applicant’s request to be released for lack of sufficient proof against him was unfounded as his detention was in conformity with the Code of Criminal Procedure. The reasoning of the decisions of 10 April and 6 October 1996 has not been substantiated.
During the applicant’s trial his detention on remand was confirmed by the Vratsa Regional Court on 15 November 1996, 21 January 1997, 30 January 1997, 10 March 1997, 13 May 1997, and 9 September 1997. The decision of 21 January 1997 was in the form of a letter which informed the applicant that his detention was lawful as he was detained by decision of the Regional Prosecutor’s Office, which had been subject to appeal. The decision of 30 January 1997 stated that the applicant could not be released in view of the charges against him. The decision of 9 September 1997 stated that the new legislation referred to by the applicant concerned only time-limits on pre-trial detention and was therefore inapplicable. The Court further stated that in the case before it the accusation concerned a serious wilful crime and that therefore there were no grounds for release on bail. The reasoning of the remaining decisions confirming the applicant’s detention has not been substantiated.
Some of the above decisions were taken ex officio whereas others were in response to the applicant’s requests for release. During the preliminary-investigation stage of the proceedings he applied for release at least in October 1995, and in July, October and November 1996. Following the commencement of the trial in November 1996 the applicant requested his release in December 1996, in January, March, May, September and December 1997 and in October 1998. The parties have not substantiated the decisions taken on the latter two requests.
The minutes of the hearing of 6 May 1998 record the following words of the applicant’s lawyer:
“In this respect I would request that ... Mr P. ... be summoned as a witness. I would ask for his summoning through the district police. I would ask for leave to submit later the exact address of this witness. I make all these requests after consultation with my client. With a view to avoid any suspicion about manipulation on his part, he wishes to underline that he does not insist on [release] and for that reason asks that the witnesses be summoned [by the court].”
B. Relevant domestic law and practice
Provisions of the Code of Criminal Procedure (Наказателно процесуален кодекс), as in force at the relevant time:
Section 152 §§ 1 and 2, as in force until 4 June 1995, provided as follows:
"(1) Detention on remand shall be imposed [in cases where the charges concern] crimes punishable by ten or more years’ imprisonment or capital punishment.
(2) In the cases under the preceding paragraph [detention on remand] shall not be imposed if there is no danger of the accused evading justice or of committing another crime ..."
Section 152 §§ 1 and 2, as in force after 4 June 1995, provide as follows:
"(1) Detention on remand shall be imposed [in cases where the charges concern] a serious wilful crime.
(2) In the cases referred to in paragraph 1 [detention on remand] may not be imposed if there is no danger of the accused evading justice, obstructing the investigation, or committing another crime.”
According to Section 93 § 7 of the Penal Code (Наказателен кодекс) "serious" is a crime punishable by more than five years’ imprisonment.
The relevant part of Section 152 §§ 3 and 5, as in force between 4 June 1995 and August 1997, provided as follows:
“(3) Paragraph 2 shall not apply where other criminal proceedings for [a publicly prosecuted] crime are pending against the accused person, or where [the accused is a recidivist] ...
...
(5) The detained person shall immediately be provided with the opportunity to file an appeal to the competent court against his [detention on remand]..."
In August 1997 the text of paragraph 3 of Section 152 was replaced by a provision limiting the length of pre-trial detention. These limits do not apply in respect of detention after the commencement of the trial.


ITEMID: 001-57629
LANGUAGEISOCODE: ENG
RESPONDENT: CHE
BRANCH: CHAMBER
DATE: 1990
DOCNAME: CASE OF WEBER v. SWITZERLAND
IMPORTANCE: 2
CONCLUSION: Violation of Art. 6-1;Violation of Art. 10;Non-pecuniary damage - financial award;Costs and expenses award - domestic proceedings;Costs and expenses award - Convention proceedings
JUDGES: C. Russo
TEXT: 7. Mr Franz Weber, a Swiss journalist, lives at Clarens, in the Canton of Vaud.
8. On 2 April 1980 the applicant and one of the associations he runs, Helvetia Nostra, lodged a complaint alleging defamation against R.M., who had written a letter published in the letters column of the newspaper L’Est vaudois under the headline "Franz Weber is fooling you". The letter contained the following passages:
"Like all your readers, no doubt, I recently found in my letter-box another of the begging letters sent out by unscrupulous people when they want to cadge money.
Everyone is getting really sick of it and I think Franz Weber would do better to go and knock down the factory chimneys which crowd the skyline of Basle and protect his beloved captive seals in the zoo than to pester us with his initiatives, which he lives on at our expense - in case you didn’t know.
If Mr Weber had the courage to show us his tax returns, you would be amazed. But the list of municipal taxpayers is not published and it is easy to hide behind that sort of censorship and live by devious means, sponging off decent people who still believe that these drop-outs have their uses and in so doing demonstrate their distrust of the whole country’s democratically - and how democratically! - elected authorities.
May everyone have the courage to tell Helvetia Nostra (there’s a fine name to fleece you with!) that we have had enough of playing into the hands of people who sponge off us and whose behaviour borders on the criminal.
..."
9. Interviewed by the investigating judge (juge informateur) of the Vevey-Lavaux district, R.M. acknowledged the virulence of these accusations and attributed it to a nervous breakdown he had suffered at the time. Mr Weber refused all conciliation. In order to establish the truth of his allegations, R.M. then requested Mr Weber to produce a number of documents relating to his and his associations’ financial position.
10. On 4 November 1980 the investigating judge ordered disclosure of the Helvetia Nostra association’s and the Franz Weber Foundation’s articles and their accounts for the previous two financial years. On 22 January 1981, having still not received them, he ordered their sequestration, but on 13 April 1981 he had to renew the order, as the applicant had not complied.
In May 1981 Mr Weber forwarded Helvetia Nostra’s accounts in a sealed envelope but not those of the Foundation. Two subsequent sequestration orders were not executed.
11. The applicant was dissatisfied with the way in which the investigating judge was proceeding and on 1 March 1982 he lodged a criminal complaint alleging misuse of official authority and coercion, but the investigating judge of the Canton of Vaud refused to take any action, whereupon Mr Weber challenged the Cantonal Court en bloc.
12. R.M. was charged with defamation (Article 173 of the Criminal Code) and on 1 March 1982 was committed for trial at the Vevey district police court. He appealed against the order committing him for trial, but the Indictment Division (tribunal d’accusation) dismissed the appeal on 25 May 1982.
13. On 2 March 1982 at a press conference in Lausanne the applicant informed the public that defamation proceedings had been taken against R.M., that orders had been made for the production and then for the sequestration of the associations’ accounts and that these had been handed over under seal. He also stated that he had lodged a challenge and a complaint against the investigating judge. Mr Weber had already divulged the first three items of information at a press conference in Berne on 11 May 1981, during which he denounced "the plot hatched against him by the Vaud authorities in order to intimidate him".
14. On 3 March 1982 the daily newspapers Gazette de Lausanne, 24 heures and Tribune/Le Matin reported what the applicant had said.
15. Under Article 185 § 3 of the Vaud Code of Criminal Procedure, the President of the Criminal Cassation Division of the Vaud Cantonal Court commenced of his own motion a summary investigation for breach of the confidentiality of a judicial investigation. In a letter of 10 March 1982 he ordered Mr Weber to provide information within ten days about what exactly he said on 2 March 1982.
The applicant replied on 22 March 1982. He denied having given any "information about the investigation proceedings" and relied on Articles 6 and 10 (art. 6, art. 10) of the Convention.
16. On 27 April 1982 the President of the Cassation Division imposed a fine of 300 Swiss francs on him, together with a probationary period of a year for the purposes of deletion of the fine from the cantonal register. He based his decision on the following grounds:
"II. 1. Mr Weber relied on Article 6 (art. 6) of the European Convention on Human Rights (ECHR) and impugned the procedure provided for in Article 185 § 3 of the Code of Criminal Procedure (CCP), which is the same as the one provided for in Articles 384 § 2, 386 § 2 and 336 CCP. This complaint is irrelevant, as Article 6 (art. 6) ECHR does not apply to the summary investigation proceedings provided for in respect of these breaches of procedure under cantonal law, reserved by Article 335 § 1, second sub-paragraph, of the Criminal Code (CC), because it is not a question of a ‘criminal charge’.
...
Mr Weber also submitted that he did not disclose any confidential matters on 2 March 1982, since the matters in question had already become public knowledge as a result of his press conference of 11 May 1981.
Since no judicial investigation was commenced following the press conference of 11 May 1981 and as Mr Weber did not have any occasion to avail himself of his right to a hearing, there is no need to deal with it in the present proceedings. Furthermore, criminal proceedings will shortly be time-barred (s. 12 of the Vaud Criminal Justice Act, s. 4 of the Minor Offences Act, s. 109 CC).
It is true that as a result of the press conference of 11 May 1981 the matters dealt with at the press conference of 2 March 1982 were public knowledge, but that is of no importance as breaching the confidentiality of an investigation means ‘disclosing’ a matter which ought to be kept confidential. It is therefore of little importance that the matter which was to be kept confidential was known to a limited or indefinite number of people because confidentiality had already been breached by a third party or by the same person.
The actus reus of the offence punishable under Article 185 CC is therefore made out. This offence is punishable even if it has been committed inadvertently (s. 4 of the Vaud Criminal Justice Act, s. 6 of the Minor Offences Act). In the instant case it is plain that Mr Weber acted deliberately.
3. By disclosing that he had challenged the investigating judge, Mr Weber revealed that there was an investigation, but it may be doubted whether that was ‘information about the investigation’.
4. Disclosing that a criminal complaint has been lodged - which may amount to a different offence - is not caught by Article 185 CC, more particularly where it has been decided to take no action on the complaint.
5. Mr Weber himself admits that the breach of the confidentiality of the investigation was intentional. His submission based on a kind of necessity is devoid of merit since it was open to him to appeal to the Indictment Division against the orders for the sequestration of the Franz Weber Foundation’s and the Helvetia Nostra association’s accounts, as he in fact did two days later.
..."
17. On 15 October 1982 an appeal that Mr Weber brought against this decision was unanimously dismissed by the Criminal Cassation Division sitting in private (under Article 431 §§ 2 and 3 of the Vaud Code of Criminal Procedure), on the following grounds:
"...
In the instant case the disclosure that criminal complaints had been lodged - on 2 April 1980 against [R.M.] and on 1 March 1982 against the investigating judge - is not information about an investigation except in so far as it implies - and discloses - that an investigation has been commenced ..., but it may indeed amount to an offence (defamation, calumny, on the part of the complainant). Article 185 of the Code of Criminal Procedure (CCP) is therefore not applicable to the disclosure that the first complaint had been lodged, because this was punishable as defamation, or to the disclosure that the second complaint had been lodged, because no investigation was commenced. The decision is therefore well-founded on that point.
The disclosure of the challenge is not information about an investigation. The challenge is not the purpose of the investigation, and the disclosure that such a challenge has been made says nothing about the purpose of the investigation, its content or its results. It remains true, on the other hand, that the existence of such an investigation is disclosed; but such a disclosure is not punishable under Article 185 CCP, since it was punishable as defamation.
The disclosure of the orders for production and sequestration of the accounts in the file does amount to information about an investigation.
It remains to be considered whether one can talk of disclosure, given that the matters had already been made public at an earlier press conference.
...
Article 185 CCP, which is designed also - and even primarily - to protect the public interest in ensuring that investigations take place in the best possible conditions, prohibits parties from communicating information from the file; it is therefore sufficient that the matters should be confidential in nature, without necessarily still being confidential; communication of matters of a confidential nature to someone who knows them already as a result of an earlier indiscretion is therefore a punishable offence. Furthermore, the applicant cannot rely on common knowledge when that knowledge is due to an earlier disclosure that he himself has made.
The appellant was therefore rightly convicted.
..."
Finally, the Criminal Cassation Division set aside of its own motion the entry of the fine in the cantonal register. It noted that under Vaud law and notwithstanding that they were convertible into days of imprisonment (arrêts), the fines for "procedural offences", such as breaching the confidentiality of a judicial investigation, were disciplinary in nature, since they were designed to ensure that the investigation proceeded normally. On this point cantonal law differed from federal law.
18. Mr Weber lodged a public-law appeal with the Federal Court. He relied on Articles 10 and 6 (art. 10, art. 6) of the Convention. In his view, Article 6 (art. 6) applied because of the criminal nature of the fine, which under Article 18a of an Order of 23 January 1982 was convertible into a custodial sentence.
19. On 16 November 1983 the Federal Court dismissed the appeal. It noted in particular:
"...
2. The applicant ... maintained that Article 185 of the Vaud Code of Criminal Procedure (Vaud CCP) violates in the abstract, and in the alternative in the specific case, freedom of expression as secured in federal constitutional law and in Article 10 (art. 10) of the European Convention on Human Rights (ECHR). In so doing, he overlooked that it may be legitimate in the public interest to impose certain restrictions on the exercise of that fundamental right ... Article 10 § 2 (art. 10-2) in fine ECHR, moreover, provides expressly that such restrictions are permissible where they are necessary in a democratic society, in particular for maintaining the authority and impartiality of the judiciary. The rule enacted in Article 185 Vaud CCP clearly conforms to these principles. A weighing of the competing interests at stake leads to the same conclusions. While it may indeed be readily appreciated that the applicant had grounds for rebelling against the sometimes unorthodox course taken by the proceedings against him, it must not be forgotten that the usual remedies were open to him; and, indeed, on a number of occasions he successfully availed himself of them. His interest in expressing his views on this matter in public and the public’s interest in being informed by this means cannot outweigh the interest in ensuring that the judicial system can function as smoothly and impartially as possible. The prohibition against communicating information about an investigation until its completion and the penalties attaching to the offence are undoubtedly consistent with the proportionality principle. Consideration of whether the impugned interference was founded on sufficient reasons which rendered it necessary in a democratic society, having regard to all the public-interest aspects of the case (European Court of Human Rights, Sunday Times case, Series A no. 30, paragraphs 65-67) leads inevitably to the conclusion - particularly if the interests at stake in the Sunday Times case previously cited and in the applicant’s case are compared - that there was no violation of freedom of expression.
...
In the instant case the appellant was liable to a fine not exceeding 500 francs (Article 185 § 1 Vaud CCP) and was fined 300 francs. Under Vaud law, such a penalty typically comes within the sphere of rules of conduct to be observed during proceedings. That is not decisive, however, according to the European institutions.
Such rules are generally directed primarily at barristers, and in that instance their disciplinary nature is not in doubt; the parties to criminal proceedings, however, may also be subject to certain disciplinary rules. Admittedly, it has to be recognised that the measure taken against the appellant could have been based on a combination of Article 184 Vaud CCP, which lays down that judicial investigations shall be confidential, and Article 293 of the Criminal Code (CC), which provides that anyone who makes public any proceedings in a judicial investigation or deliberations by an authority which are secret by law shall be punishable with imprisonment or a fine. In that event the application of the Criminal Code would have justified an application of Article 6 § 1 (art. 6-1) ECHR. This was not the case, however, and it was on the basis of a cantonal rule of procedure that the appellant suffered a penalty whose disciplinary or criminal nature can be determined only by assessing the degree of its severity.
The appellant showed, aptly enough, that such a fine was convertible into ten days’ imprisonment under Article 12 of the Vaud Order on the recovery of fines and their conversion into imprisonment. That procedure indeed leaves the authorities only a very limited discretion and at all events does not enable them to comply retrospectively with the requirements of Article 6 (art. 6) ECHR. The appellant overlooks, however, that Article 49 § 3, second sub-paragraph, of the Swiss Criminal Code (SCC) enables the judge to rule out conversion where the person convicted has proved that, through no fault of his own, he is unable to pay the fine. In view of the foregoing, the possibility of a custodial sentence could not make the penalty imposed in the instant case a criminal one.
Ultimately, while the fine imposed in the instant case was not a negligible one, it nonetheless came into the category of penalties which by their nature, duration or manner of execution are deemed not to be appreciably detrimental. The possibility of conversion into a custodial sentence makes no difference, since conversion is possible only in the event of the appellant’s refusing to pay the fine out of sheer unwillingness. The safeguards provided for in Article 6 § 1 (art. 6-1) ECHR were therefore not applicable in the instant case."
The applicant paid the fine in January 1985.
20. The confidentiality of judicial investigations is governed by Articles 184 and 185 of the Vaud Code of Criminal Procedure, which provide:
"All judicial investigations shall remain confidential until they are finally completed.
Judges, other members of the national legal service and civil servants shall not communicate any documents or information about an investigation except to experts, other witnesses or an authority where such communication assists the investigation or is justified on administrative or judicial grounds."
"The parties, their counsel, employees of their counsel and experts and witnesses shall be bound to maintain the confidentiality of an investigation, on pain of a fine of up to five hundred francs, unless the breach is punishable under other provisions.
The punishment provided for in the foregoing paragraph shall be ordered by the President of the Cassation Division, of his own motion or acting on an information.
He shall give his ruling after a summary investigation."
In 1983 the applicant was the sponsor of a constitutional initiative entitled "For a system of criminal justice with a human face", one of whose aims was to secure the repeal of Article 185. This was in line with the approach adopted by those who had drafted the 1977 Geneva Code of Criminal Procedure, which does not attach any penalty to the obligation to maintain the confidentiality of an investigation, an obligation from which it even completely exempts witnesses, complainants, accused persons and their lawyers. In a referendum on 20 May 1984 the people of the Canton of Vaud rejected the Weber initiative by a clear majority.
21. Article 293 § 1 of the Swiss Criminal Code - which was not applied in the instant case (see paragraph 19 above) - provides:
"Anyone who, without being entitled to do so, makes public all or part of the proceedings of an investigation or of the deliberations of any authority which are confidential by law or in virtue of a decision taken by such an authority acting within its powers shall be punished with imprisonment or a fine."
22. The cantonal Order of 23 January 1942, which has been supplemented and amended several times since, provides, inter alia:
"If the person convicted has neither paid nor redeemed the fine and if it appears that recovery proceedings would be fruitless, the Prefect shall convert the fine into a term of imprisonment.
...
The Prefect may, however, decide against conversion at any time if the person convicted proves that, through no fault of his own, he is unable to pay the fine."
"The conversion rate shall be one day’s imprisonment for every thirty francs of fine; fractions of less than thirty francs shall be left out of account; the length of imprisonment shall not exceed three months.
..."
"Within twenty-four hours of receiving them, the Department shall send to the Prefect of the district in which the court that heard the case is situated copies of any judgments and decisions entailing imposition of a fine which have been communicated to it.
It shall order the Prefect to enforce the judgment or decision."
"If the person convicted has neither paid nor redeemed the fine and if it appears that recovery proceedings would be fruitless, the Prefect shall inform the Department accordingly with a view to converting the fine into a term of imprisonment, unless such conversion was excluded at the outset in the judgment or decision concerned."
"The presiding judge of the court shall decide whether to convert the fine into a term of imprisonment pursuant to Article 49 of the Criminal Code and shall proceed in accordance with Articles 459 and 460 of the Code of Criminal Procedure.
..."
"Articles 14 and 15 shall apply to fines imposed for breaches of provisions of criminal or civil procedure.
In the case of Article 15, the Department shall report the matter to the appropriate judicial officer, who shall be able to convert the fine into a term of imprisonment, wholly or in part; he shall inform the Department of his decision.
Articles 8 and 10-13 shall apply to the conversion, save that the judge with jurisdiction to determine the matter shall be:
(a) the President of the Cantonal Court in respect of fines imposed by him or by the court as such;
(b) the presidents of the various sections or divisions of the Cantonal Court in respect of fines imposed by them or by the section or division;
..."
23. When depositing the instrument of ratification of the Convention, the Swiss Government made the following reservation:
"The rule contained in Article 6, paragraph 1 (art. 6-1), of the Convention that hearings shall be in public shall not apply to proceedings relating to the determination ... of any criminal charge which, in accordance with cantonal legislation, are heard before an administrative authority.
The rule that judgment must be pronounced publicly shall not affect the operation of cantonal legislation on civil or criminal procedure providing that judgment shall not be delivered in public but notified to the parties in writing."
24. The Swiss courts have had occasion to give their views on the concept of an "administrative authority". In its judgment of 2 December 1983 in the Schaller case, for instance, the Federal Court stated:
"Moreover, the expression ‘administrative authority’ (autorité administrative) is not to be found in the text of the European Convention on Human Rights (ECHR) but appears in Switzerland’s reservation in respect of the principle laid down in Article 6 (art. 6) of the Convention that hearings must be public and judgments pronounced publicly. It is therefore not a Convention concept which should be construed according to the principle of reasonable expectation, that is to say in the meaning which the other signatory States might and should in good faith give it, or directly under Articles 31 and 32 of the Vienna Convention of 23 May 1969, which Switzerland has not yet ratified. A reservation made when ratifying a treaty is a unilateral declaration which must in general be interpreted by reference to the domestic law of the State which has adopted it, like a provision in a statute or regulation.
In the case of a reservation, an interpretation in accordance with the will of the declaring State makes it possible to take into account the real purpose of the reservation, whose justification lies precisely in the special features of national law ...
That being so, regard should be had to the meaning which the Swiss Government and Parliament intended giving to the expression ‘administrative authority’. While the Federal Parliament accepted the reservation without discussion or comment, the Federal Council gave the following particulars in its 1968 Communication (FF [Federal Gazette] 1968 II p. 1118/1119).
‘... In Switzerland, as was pointed out above, the administrative authorities may have to determine private-law disputes and impose penalties in the way that a criminal court would. Administrative proceedings, however, are not normally public. The same is true of proceedings in the administrative courts, although they are adversarial. It is, moreover, doubtful whether the principle that proceedings must be public is generally applicable to administrative criminal proceedings.’
In its communication of 4 March 1974 (FF 1974 I, p. 1020), on the other hand, the Federal Council merely stated that proceedings before administrative authorities were not public.
It is therefore possible to confirm the precedent of R. and Others of 25 November 1982, referred to above. In the light of the 1968 Communication it is apparent that Switzerland meant to exclude application of the principle that hearings and judgments must be public not only before administrative authorities but also in the administrative courts, notwithstanding that proceedings there are adversarial. It would, moreover, be consistent with the principle of good faith to accept that the reservation applies to such-and-such an authority not because of the way the authority is organised but rather because of the functions it discharges, in the instant case administrative functions.
(cc) The respondent authority was right in considering that it could apply the reservation made in respect of Article 6 (art. 6) ECHR and in accepting that in Switzerland ‘disciplinary regulations come within the domain of administrative law and the authorities which apply them exercise an administrative jurisdiction’."
VIOLATED_ARTICLES: 10
6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-58026
LANGUAGEISOCODE: ENG
RESPONDENT: FRA
BRANCH: CHAMBER
DATE: 1997
DOCNAME: CASE OF NEIGEL v. FRANCE
IMPORTANCE: 2
CONCLUSION: Art. 6-1 inapplicable
JUDGES: John Freeland
TEXT: 7. On 4 July 1978 Miss Florence Neigel started working as an auxiliary shorthand typist for Biarritz Town Council (département of PyrénéesAtlantiques). She was appointed as a trainee on 1 March 1979 and given a permanent post on 1 March 1980.
8. In a decision of 21 February 1983 the mayor of Biarritz ("the mayor") granted a request by the applicant for one year’s leave of absence for personal reasons from 14 March 1983.
9. Miss Neigel applied for reinstatement with effect from 14 March 1984. On 25 November 1983 she was informed that her application had been refused by the mayor.
On 17 December 1983 she sought renewal of her leave of absence for one year. The mayor granted her application in a decision of 21 December 1983.
10. On 7 December 1984 Miss Neigel applied for reinstatement on 14 March 1985. The mayor replied on 11 December 1984 as follows:
"...
As you are aware, reinstatement as of right is by way of appointment to one of the first three posts falling vacant where the leave of absence has not exceeded three years. The essential requirement, however, is that there should be a vacancy. As the posts of shorthand typist provided for in our establishment table are filled by permanent staff, it is not possible to reinstate you at present.
If the situation remains unchanged on 14 March 1985, you will be technically reinstated and will be on leave of absence without pay until another solution is found.
..."
11. On 4 March 1985 Miss Neigel reapplied to the mayor for reinstatement. She argued that the regulations did not authorise him to "technically reinstate" her or to grant her a further year’s leave of absence.
12. On 14 March 1985 the mayor ordered that Miss Neigel be "technically" reinstated and continue to be "on leave of absence without pay".
13. On 14 June 1985 the applicant wrote to the mayor challenging the lawfulness of the measure taken and requesting her reinstatement and payment in full of her salary from 14 March 1985.
The mayor replied on 20 June 1985 that reinstatement as of right was by way of appointment to one of the first three posts falling vacant and that in this instance only two appointments had been made to the same grade as the applicant.
In a letter of 27 June 1985 Miss Neigel disputed the information given by the mayor. On 28 November 1985 she made a further application for reinstatement.
On 3 December 1985 the mayor told the applicant that if she considered her situation (which, he said, was still the same) unlawful, it was open to her to apply to the administrative court.
14. On 4 March 1986 Miss Neigel applied for reinstatement on 14 March 1986. On 5 March 1986 the mayor notified her of his refusal.
15. On 16 June 1986 the applicant sent the mayor the following letter:
"...
Pursuant to your decision of 14 March 1985, you ‘technically’ reinstated me and you are aware that this situation is unlawful.
I therefore request
1. my actual reinstatement; and
2. compensation in an amount corresponding to the salary I should have received since 14 March 1985. If you refuse my request, I shall bring proceedings in the administrative court to have the loss assessed in damages. ..."
On 23 June 1986 the mayor made the following reply:
"...
As there has been no change in the staff of your grade working for the Council, I can only confirm what I said in my previous letters.
I have no objection to your bringing this case before the administrative court.
..."
16. On 22 July 1986 Miss Neigel applied to the Pau Administrative Court to have the mayor’s decision confirming her "technical reinstatement" and her "leave of absence without pay" quashed and to obtain an order that he should pay her the salary she should have received from 14 March 1985 onwards.
17. The mayor filed pleadings on 25 September and 18 November 1986 and on 13 January and 27 February 1987. The applicant did likewise on 3 November and 12 December 1986 and on 5 February 1987.
18. Following a hearing on 31 March, the court delivered the following judgment on 7 April 1987:
"...
With regard to Miss Neigel’s technical reinstatement:
On the conditions laid down by the mayor of Biarritz Miss Neigel’s reinstatement is a purely technical decision; that being so, it is null and void. It is therefore necessary to set aside the decision of 5 March 1986 in so far as it upholds the applicant’s technical reinstatement.
With regard to Miss Neigel’s right to reinstatement:
Under Article L. 415-59 of the Municipalities Code as in force when the impugned decision was taken, ‘A member of staff granted leave of absence at his own request shall be entitled to reinstatement by appointment to one of the first three posts falling vacant where the leave has not exceeded three years’...
...
The applicant claimed that three posts she was suitably qualified for had fallen vacant and been filled during the period when she was requesting reinstatement and that two posts had been created. The mayor of Biarritz asserted that, on the contrary, the posts provided for in the establishment table were filled and that no permanent staff had been recruited since 1 March 1985. That being so, the parties disagreed as to the facts. It is therefore necessary to order that further inquiries into the facts should be made, firstly to enable the mayor of Biarritz to produce all the documents necessary to determine the position since 14 March 1985 regarding vacant posts and staff recruited in Miss Neigel’s grade, and secondly so that the total salary the applicant would have received from 14 March 1985 onwards can be calculated.
..."
19. The applicant filed pleadings on 30 June, 20 August and 5 October 1987. The mayor did likewise on 17 July and 23 September.
20. Through a member of parliament Miss Neigel asked the ombudsman to intervene and expedite the proceedings. The ombudsman replied on 22 October 1987 that judgment had been given on 20 October.
21. This judgment was served on the applicant on 10 November 1987. The court rejected her remaining submissions on the following ground:
"...
It is clear from an examination of the case file, and in particular of the table of posts of shorthand typist produced by the mayor of Biarritz, that eight posts are provided for in the budget, while seven posts are occupied by permanent staff, a number that has not changed since 14 March 1985. All the staff in question were taken on before 7 December 1984, when Miss Neigel applied to be reinstated. The fact that the post Miss Neigel occupied before she was granted leave of absence is vacant has no bearing on the lawfulness of the contested decision. Under these circumstances the applicant is not justified in maintaining that the rights she derived from her priority entitlement to be taken on again following her leave of absence have been infringed. Miss Neigel therefore cannot claim compensation corresponding to her total salary since 14 March 1985.
..."
22. On 18 May 1988 Miss Neigel appealed against the Pau Administrative Court’s two judgments to the Conseil d’Etat. She filed a supplementary pleading on 19 September 1988.
23. In a letter of 23 February 1989 Miss Neigel enquired of the secretary of the Third Section of the Judicial Division of the Conseil d’Etat about the proceedings. The secretary replied on 15 March 1989:
"... the case file ... is currently in the hands of the lawyer for Biarritz Town Council for inspection and has been since the beginning of February, for two months.
As soon as he returns it, it will be sent to your lawyer for your reply, for the same length of time.
As soon as the written proceedings in preparation of the case for trial have been completed, I will submit your case file to the presiding judge. It is nevertheless likely that this case will not be heard until the end of the year at the earliest.
..."
24. Biarritz Town Council filed a pleading on 31 March 1989, to which Miss Neigel replied on 25 October 1989.
25. In a letter of 27 November 1989 the applicant made further enquiries of the secretary about the proceedings. The secretary replied on 4 December 1989 that, as soon as the preparation of the case for trial had been completed, he had submitted the case file to the presiding judge of the Third Section, who had allocated it to a reporting judge in September.
26. Biarritz Town Council filed a pleading on 12 February 1990.
27. On 20 February 1990 Miss Neigel sent the secretary a letter - to which she received no reply - expressing her concern at the time it was taking to deal with her case and asking if she should write to the presiding judge to make him aware that her situation called for an early judgment.
28. The applicant’s mother wrote to the secretary on 10 April 1990. She told him of the conflicting information her daughter had been given on the telephone by the registry
- the case file had apparently not yet been transferred to the Government Commissioner (commissaire du gouvernement)
- and requested details of the proceedings and of what further could be done to speed them up.
The applicant’s mother wrote again as follows on 13 April 1990 after her daughter had received a copy of the latest pleading filed by Biarritz Town Council:
"...
Given that preparation of the case for trial ended in September 1989, [my daughter] cannot understand why the opposing side should produce a further pleading and why this should be admitted to the case file when it had been stated that once the preparation of the case was terminated, no new document could be added.
...
I suppose that if the rules are to be applied, it would be simpler to withdraw this second pleading, which arrived undated more than six months after termination of the preparation of the case, and for only the evidence already in the file to be submitted to the Government Commissioner appointed to study it.
..."
29. The Conseil d’Etat held a hearing on 4 January 1991 and gave judgment on 21 January. It dismissed the appeal as follows:
"...
Firstly, under the ... provisions of Article L. 415-59 of the Municipalities Code, the mayor was not bound to reinstate Miss Neigel until the third vacancy arising after the end of her leave of absence. It appears from the evidence that between 14 March 1985 and 5 March 1986 only two vacancies arose that Miss Neigel was suitably qualified to fill. ... the mayor of Biarritz’s decision of 5 March 1986 whereby he refused Miss Neigel’s application for reinstatement was therefore not in breach of the provisions of Article L. 415-59 of the Municipalities Code.
...
It is clear from all the foregoing that Miss Neigel is not justified in maintaining that the Pau Administrative Court, having ordered in a judgment of 7 April 1987 that further inquiries into the facts should be made (a measure which, contrary to what the applicant maintained, was not obstructive), was wrong in its judgment of 20 October 1987 to refuse her application to quash the decision of 5 March 1986.
..."
30. The provisions of the Municipalities Code that were applicable in the instant case
- they were repealed by Law no. 84-53 of 26 January 1984
- were the following:
"Leave of absence means that a member of staff is released from performing his normal duties and that, for the duration of such leave, his rights relating to promotion and retirement cease to accrue.
..."
"Leave of absence shall be ordered in a decision by the mayor, either of his own motion or at the request of the person concerned."
"Leave of absence may be granted at the request of a member of staff in the following circumstances only:
...
3. For personal reasons; in this case the leave may not exceed one year but shall be renewable for a further year.
..."
"A member of staff granted leave of absence at his own request shall not be entitled to any remuneration.
..."
"A member of staff granted leave of absence at his own request shall be entitled to reinstatement by way of appointment to one of the first three posts falling vacant where the leave has not exceeded three years."
31. A civil servant whose dismissal has been quashed as being unlawful is entitled to receive compensation for pecuniary damage, calculated on the basis of the salary lost (Conseil d’Etat, 7 April 1933, Deberles, Rec. 439).


ITEMID: 001-67765
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: CHAMBER
DATE: 2004
DOCNAME: CASE OF TALAT TEPE v. TURKEY
IMPORTANCE: 3
CONCLUSION: No violation of Art. 3;No violation of Art. 5-1;Violation of Art. 5-3;Violation of Art. 5-4;Not necessary to examine Art. 6-1;Violation of Art. 13;No violation of Art. 14;Pecuniary damage - financial award;Non-pecuniary damage - financial award;Costs and expenses partial award
TEXT: 10. The applicant was born in 1961 and is at present living in Istanbul.
11. On 6 August 1992, based on the statements given by two members of the PKK to the police, the public prosecutor at the Diyarbakır State Security Court ordered the arrest of five people, including the applicant, on suspicion of aiding and abetting an illegal terrorist organisation. Several terrorist acts, including an attack on the Hersan Police Station, carried out by the PKK were mentioned in the order. The public prosecutor further requested to be kept informed every three months about the progress being made in the investigation.
12. On 9 July 1995 at 5.40 a.m., the police eventually arrested the applicant at the Istanbul Atatürk Airport on the basis of an order prohibiting him from leaving the country. At about 10 a.m. he was taken to the Gayrettepe Office for the Enforcement of Judgments in Istanbul.
13. On 11 July 1995 at 2 p.m., the applicant was taken into custody at the Istanbul Security Directorate. On the same day the public prosecutor at the Istanbul State Security Court authorised the Istanbul Security Directorate to extend the applicant's detention for ten days, starting from 9 July 1995.
14. On 17 July 1995 the applicant was examined by a doctor at the Haseki Hospital in Istanbul. The doctor noted in his report that no pathological findings had been found on the applicant's body and that the final medical report would be drafted by the Forensic Medicine Institute.
15. On 18 July 1995, at about 6 a.m., the applicant was taken to the Istanbul Atatürk Airport. The applicant and the police officers who accompanied him took a plane to Bitlis. At 2 p.m. he was handed over to police officers from the Bitlis Security Directorate. On the same day, the Bitlis Public Prosecutor authorised the extension of the applicant's detention for three more days.
16. The applicant alleged that he was subjected to ill-treatment in the Bitlis Security Directorate, which included beatings, electric shock treatment, blindfolding, verbal insults, hosing with cold water, being stripped naked and deprived of food.
17. On 19 July 1995 the applicant was driven to different places around Bitlis in order to locate his different meeting places with terrorists. A sketch map, describing the attack on the Hersan Police Station and how he had assisted the terrorists, was drafted by police officers. In a statement signed by the applicant on 19 July 1995, he confessed that he had aided members of the PKK. He alleged that, after having signed this confession, he was again subjected to ill-treatment.
18. On 20 July 1995 the applicant was seen by a doctor in Bitlis who noted in his report that there were no marks on his body of beatings or injuries consistent with the use of force. The applicant alleged that the doctor neither spoke to him nor examined him.
19. On the same day the applicant was first brought before the Diyarbakır State Security Court Public Prosecutor who decided to join the investigation file on the applicant dated 1992 to the new investigation file dated 1995. The applicant contended that his police statements were taken under duress and refuted the reliability of the medical report. Moreover, he denied all the allegations made against him. Later he was taken before the judge at the Diyarbakır State Security Court. He repeated that his police statements were taken under duress and refuted the allegations against him. Noting that the applicant had a profession and a permanent address, the judge concluded that there was nothing in the case file that required the applicant's detention pending trial and ordered his release.
20. On 23 July 1995 the applicant went on his own to be examined by another doctor. The subsequent medical report dated 15 August 1995 read as follows (translation):
“Report:
Talat Tepe, born 1961 in Mutki Bitlis, was taken into custody in Istanbul on 9 July 1995 and was held in custody for a total of twelve days; ten days in Istanbul and two days in Bitlis. During his detention in Istanbul, he was subjected to duress, such as not having access to means of communication and not being allowed to receive visitors despite his requests.
In Bitlis, he was subjected to physical and psychological torture for almost 40 hours. He was interrogated while he was completely naked. He was held in a cold and dirty cell which had a stone floor. His access to the toilet and sanitary materials were restricted. He was subjected to offensive language and behaviour. He was threatened with death. He endured psychological pressure which led to desperation and destroyed his self-confidence (he was repeatedly told that he would be put on trial and subsequently be sentenced to death; he would be killed even if he was released, etc.). He was beaten up four to five times during this interrogation. As a result of moving cables around his body, he was subjected to electric shocks six times in succession, mainly on his legs and feet. He was hosed down with cold water. His testicles were squeezed. He was basically subjected to a kind of torture which endangers the victim's life and causes extreme pain, but does not always leave marks on the body.
While in Istanbul he had to pay for his food. During the 40 hours of detention in Bitlis, he was unable to eat the food given to him since he was exhausted as a result of the torture. He was not supplied with water and he was told that drinking water after being subjected to torture would be dangerous for his health.
Before being released he was taken to the Bitlis State Hospital, where a medical report was issued, revealing that he was in good health. This report was prepared in the absence of a proper physical examination. On 23 July 1995 the torture victim had pain in his shoulders and back. He was suffering from weariness and violent headaches. He was going through the interrogation all over again in his dreams. During his sleep he needed to go to the toilet frequently, and he was often going through the whole interrogation procedure in his dreams. The weariness and the dizziness of the victim were easily observed during the first examination.
The results of blood and urine tests were normal. As a result of the neurological consultation, his neck movements were observed to be painful, and hypoesthesia and hypoalgesia were found in his left C5 dermatome. In the cervical BT examination no medullar and spinal chord compression was discovered. It was considered that the applicant's complaints were due to the trauma applied to the cervical region. He is provided with an anti-inflammatory treatment and he is under surveillance.
As a result of the psychiatric consultation, traumatic experience related insomnia was discovered. It was stated that he did not need psychotherapy.
Considering his state of health, it would be appropriate for him to rest for 7 (seven) days.
15 August 1995
Dr Emel Gökmen (signature)”
21. On 24 November 1995 the public prosecutor at the Diyarbakır State Security Court filed an indictment with the same court accusing the applicant of aiding and abetting an illegal armed organisation, contrary to Articles 31 and 169 of the Criminal Code and Article 5 of Law no. 3713 on the Prevention of Terrorism.
22. On 6 June 1996 the Diyarbakır State Security Court acquitted the applicant of the charges due to lack of evidence.
23. On 12 July 1995 the applicant's lawyers filed petitions with the Ministry of Justice complaining about the excessive length of the applicant's detention in police custody.
24. On 18 July 1995 the Ministry of Interior requested the Istanbul Public Prosecutor to investigate the complaints made by the applicant's lawyers.
25. On 27 July and 1 August 1995 the Istanbul Public Prosecutor took statements from the applicant's lawyers. They complained about the excessive length of their client's detention and his ill-treatment during his detention in Bitlis Security Directorate.
26. On 17 August 1995 the Istanbul Public Prosecutor took the applicant's statements. The applicant complained about the length of his detention and criticised the public prosecutor at the Istanbul State Security Court who had unlawfully authorised the prolongation of his detention. Moreover, he gave details of the alleged ill-treatment in Bitlis Security Directorate. He gave a description of the two police officers who were allegedly responsible for this treatment and maintained that one of them was the person who drove him from the airport to the Security Directorate. He stated that the doctor who examined him on 20 July 1995 did not ask him any questions and only checked the upper part of his body. However, he contended that the treatment that he had been subjected to was not the type of treatment which would necessarily leave traces on the body. Moreover, he was unable to complain to the doctor because police officers were present in the room. He further maintained that, apart from the documents in the case file before the Diyarbakır State Security Court, he did not have any evidence or witnesses to substantiate his allegations.
27. On 18 August 1995 the Istanbul Public Prosecutor sent a letter to the Bitlis Public Prosecutor requesting him to investigate the applicant's allegations of torture.
28. On 29 August 1995 the Bitlis Public Prosecutor requested information from the Bitlis Security Directorate about the identity of the two police officers who drove the applicant from the airport to the Security Directorate. Moreover, he sent a letter to the Diyarbakır State Security Court requesting a copy of the applicant's case file. He also sent a letter to the Istanbul Public Prosecutor requesting to have the applicant examined by a forensic doctor for traces of torture that allegedly occurred during his detention in Bitlis Security Directorate.
29. On 8 September 1995 the Bitlis Security Directorate informed the Bitlis Public Prosecutor of the names of the police officers who drove the applicant from the airport to the Security Directorate as well as those of the officers who questioned him during his detention. On 14 September 1995 five police officers were summoned before the Bitlis Public Prosecutor. In their statements to the public prosecutor all five police officers refuted the applicant's allegations.
30. On 24 October 1995 the Bitlis Public Prosecutor repeated his requests to the public prosecutor at the Diyarbakır State Security Court and the Istanbul Public Prosecutor.
36. On 18 April 1996 the Provincial Administrative Council in Bitlis decided that charges should not be brought against the five police officers. It noted in its decision that the applicant was interrogated on 19 July 1995 and seen by a doctor in the Bitlis State Hospital on 20 July 1995; a medical report drafted on the same day found no traces of blows to the applicant's body and mentioned that, subsequently, on 20 July 1995, the applicant was released following a decision of the Diyarbakır State Security Court. The Council consequently held that, contrary to what was claimed by the applicant, he had not been subjected to torture.
37. The applicant did not appeal against the decision of the Provincial Administrative Council. The decision was examined ex officio by the Supreme Administrative Court. On 18 March 1998 the court upheld the decision of the administrative council holding that there was no evidence to substantiate the applicant's claim that the police officers had committed the alleged crime.
38. The relevant domestic legislation is outlined in the Court's Tepe v. Turkey judgment (no. 27244/95, §§ 115-122, 9 May 2003).
VIOLATED_ARTICLES: 13
5
VIOLATED_PARAGRAPHS: 5-3
5-4
NON_VIOLATED_ARTICLES: 14
3
5
NON_VIOLATED_PARAGRAPHS: 5-1