ITEMID: 001-113280
LANGUAGEISOCODE: ENG
RESPONDENT: POL
BRANCH: COMMITTEE
DATE: 2012
DOCNAME: CASE OF POTOCKA v. POLAND
IMPORTANCE: 4
CONCLUSION: Violation of Article 6 - Right to a fair trial (Article 6 - Administrative proceedings;Article 6-1 - Reasonable time)
JUDGES: Ledi Bianku;Päivi Hirvelä;Zdravka Kalaydjieva
TEXT: 4. The applicant was born in 1925 and lives in Montresor.
5. The applicant’s predecessor owned property comprising also a park and a manor situated in Przecław. By virtue of the Decree of 6 September 1944 on Agrarian Reform (“the 1944 Decree”) ownership of private agricultural properties exceeding 50 hectares was transferred ex lege to the State. In 1974 the State transferred ownership of the property to a State-owned company Delta-Mielec. In the same year an entry confirming that company’s right of perpetual use in respect of the property was made in the land register. After the collapse of the communist regime the applicant and other legal successors of the former owners instituted proceedings seeking to have the ownership restored to them.
6. On 23 November 2000 the applicant instituted administrative proceedings. She requested the Podkarpackie Governor (Wojewoda Podkarpacki) to give a decision declaring the expropriation null and void. She argued that the expropriation decision was unlawful in that the property concerned had not fallen within the scope of the criteria for nationalisation stipulated by the 1944 Decree.
7. On 3 April 2003 the Podkarpacki Governor held that the property was covered by the Decree and therefore the expropriation decision had been lawful. The applicant appealed.
8. On 19 December 2003 the Minister of Agriculture quashed the first-instance decision and remitted the case.
9. By a decision of 3 August 2004 the Governor held that the park and manor were covered by the 1944 Decree. The applicant appealed.
10. On 8 June 2005 the applicant submitted a complaint under Article 37 of the Code of Administrative Procedure about the Minister’s failure to give a decision in the case within a reasonable time. She reiterated her complaint on 10 January 2007. There was no reply to these complaints.
11. On 5 November 2007 the Minister upheld the first-instance decision. The applicant appealed. On 18 September 2008 the Warsaw Regional Administrative Court quashed both the first- and second-instance decisions, finding that the first-instance authority had failed to inform the parties, including the applicant, about an administrative hearing it had held.
12. On 28 May 2010 the Podkarpacki Governor discontinued the proceedings. It had regard to a decision given by the Constitutional Court on 1 March 2010 (see paragraph 26 below). It held that in the light of that decision the administrative authorities had no jurisdiction to examine issues concerning the lawfulness of expropriation decisions given on the basis of the 1944 Decree.
13. The applicant appealed, referring to the resolution given by the Supreme Administrative Court on 5 June 2006 (I OPS 2/06; see paragraph 25 below). She argued that the authority had failed to provide the legal basis for the proceedings to be discontinued.
14. On 28 December 2010 the Minister upheld the contested decision. The applicant appealed. On 28 January 2011 the Minister noted that he was competent to quash his own decision if he found it to be unlawful. He accordingly quashed the decision of 28 December 2011, having regard to the judgment of the Supreme Administrative Court of 10 January 2011 (see paragraph 27 below). He held that the first-instance administrative authority had jurisdiction to deal with the applicant’s case.
15. On 11 April 2011 the applicant again complained about the Governor’s failure to give a decision. On 20 September 2011 the Minister found that the applicant’s complaint was ill-founded.
16. On 29 July 2011 the Podkarpacki Governor held that the provisions of the 1944 Decree were not applicable to the park and manor and that therefore there were no legal grounds on which the property concerned could be expropriated.
17. On 28 March 2012 the Minister upheld this decision.
18. In 2006 the applicant, having regard to discrepancies in the case-law regarding the procedural situation of former owners and their legal successors, instituted civil proceedings with a view to having the ownership restored to her. She instituted proceedings against the State Treasury and against the Mielec-Delta public company before the Mielec District Court, seeking rectification of the land register so as to make it reflect the actual legal status of the land (powództwo o uzgodnienie księgi wieczystej z rzeczywistym stanem prawnym).
19. On 5 March 2009 the Mielec District Court dismissed her action. It noted, firstly, that under the 1944 Decree properties consisting of parks and manors (zespół parkowo-pałacowy) were not subject to expropriation. However, the applicant had failed to show that the property concerned had ever been formally separated from the agrarian property as a whole so as to constitute a separate subject of ownership. In any event, the applicant had failed to show that she had obtained a final administrative decision declaring the expropriation decision null and void. Such a decision was a necessary prerequisite for a civil court to hold that the ownership of the property had not been transferred to the State and to determine all consequences in the sphere of civil law resulting from such a decision.
20. The applicant appealed. She submitted that the court had erred in refusing to stay the proceedings until an administrative decision was given, because such a decision was a necessary prerequisite for the civil court to rule on the merits of the case. She further submitted that the court had thereby breached the Constitution by encroaching on the exclusive competences of the administrative authorities.
21. On 2 July 2009 the Tarnobrzeg Regional Court dismissed her appeal. It observed that it was obvious that a decision on whether the 1944 Decree was applicable to the property could only be given by the administrative authorities. It referred to a judgment of the Supreme Court of 30 January 2007 (see paragraph 25 below). It emphasised that the case-law of the administrative courts also indicated that only the administrative authorities were competent to determine this issue. In the applicant’s case, as no such decision had ever been given, no other course of action was open to the civil court than to hold that the claim to have the entries in the land register rectified had to fail.
22. By a decision of 30 April 2010, served on the applicant’s representative on 1 June 2010, the Supreme Court refused to entertain her cassation appeal. It noted that the applicant had instituted civil proceedings in the absence of an administrative decision declaring the expropriation unlawful and therefore null and void. In such situation the courts had no choice but to dismiss her claim.
23. Article 1 of the Decree on Agrarian Reform of 6 September 1944 provides that “the agrarian reform in Poland is a State and economic imperative and shall be realised ... pursuant to principles set forth in the manifesto of the Polish Committee of National Liberation”.
Article 2 § 1 of the Decree, in so far as relevant, reads:
“The following agricultural estates shall be designated for the purposes of the agrarian reform: ...
e) being a property or a co-property of natural persons or legal entities, if the entire area of the estate exceeds either 100 hectares in total, or 50 hectares of arable land ...
All real estate, referred to in items ... , e) above shall, with no delay and without compensation, be taken over by the State.”
24. In 2001 the Constitutional Court discontinued proceedings instituted by an individual constitutional complaint concerning the alleged incompatibility of Article 2 of the 1944 Decree with the Constitution. It held that it could only examine the compatibility of binding legal provisions with the Constitution. Article 2 of the 1944 Decree had never been formally abrogated and it was referred to by courts and administrative authorities in their decisions. However, it was not a decisive factor in assessing whether this provision was still in force. The decisive factor was that it could no longer provide the basis for any substantive changes in ownership. The courts, when referring to this provision, did not apply it in the strict sense of that term; the reference to this provision was merely of a secondary nature and was used to decide whether that provision had been applied, during the expropriation proceedings conducted in the past, in a manner which had flagrantly violated the law (in which case an expropriation decision had to be declared null and void). The Constitutional Court concluded that this provision had therefore ceased to have legally binding force (SK 5/01, decision of 28th November 2001).
25. On 30 January 2007 the Supreme Court held that only administrative authorities could examine restitution cases (IV CSK 350/06). An identical resolution was adopted on 5 June 2006 the Supreme Administrative Court (I OPS 2/06).
26. On 1 March 2010 the Constitutional Court discontinued proceedings instituted as a result of a legal question (pytanie prawne) put to it by the Warsaw Regional Administrative Court (P 107/08). It reiterated, referring to its decision given in 2001) that the provisions of the 1944 Decree could not be resorted to any more in order to confer substantive rights on individuals and that it had ceased to be binding law. It further noted discrepancies in judicial and administrative practice as to the jurisdiction to examine restitution cases. It further held that only civil courts had jurisdiction to examine such cases, despite the fact that in practice these cases were dealt with by the administrative authorities and, upon appeal, by the regional administrative courts and, in the last, resort, by the Supreme Administrative Court.
27. On 10 January 2011 the Supreme Administrative Court held in a resolution that that decision of the Constitutional Court was not universally binding, essentially because it was only of a procedural character. The court held that the administrative authorities had jurisdiction to examine restitution cases (I OPS 3/10).
28. The relevant domestic law and practice concerning remedies for the excessive length of administrative proceedings, in particular the applicable provisions of the Code of Administrative Procedure and the 2002 Act on Proceedings before Administrative Courts, are described in the cases of Grabiński v. Poland no. 43702/02, §§ 60-65, 17 October 2006; Koss v. Poland, no. 52495/99, §§ 21-25, 28 March 2006; and Kaniewski v. Poland, no. 8049/02, §§ 22-28, 8 November 2005.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-98010
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: CHAMBER
DATE: 2010
DOCNAME: CASE OF KLEIN v. RUSSIA
IMPORTANCE: 3
CONCLUSION: Remainder inadmissible;Violation of Article 3 (in case of extradition to Colombia);Just satisfaction - finding of violation sufficient
JUDGES: Anatoly Kovler;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;Khanlar Hajiyev;Sverre Erik Jebens
TEXT: 7. The applicant was born in 1943 and lives in Tel-Aviv. He is currently detained in remand prison IZ-77/4 in Moscow.
8. On 23 February 2001 the Criminal Court of the Manizales District, Colombia (“Juzgado Penal del Circuito de Manizales”) convicted the applicant of a crime provided for by Article 15 of Decree no. 180 (1988), acknowledged as permanent law of Colombia by Extraordinary Decree no. 2266 (1991), (“instruction in and teaching of military and terrorist tactics, techniques and methods, committed with mercenaries and accomplices”) and sentenced him to fourteen years' imprisonment.
9. On 22 June 2001 the Superior Court of the Manizales District, Colombia (“Tribunal Superior de Manizales”) reduced the applicant's sentence on appeal to ten years and eight months' imprisonment, combined with a fine.
10. On 28 February 2001 the Criminal Court of the Manizales District issued an arrest warrant against the applicant on the basis of his conviction.
11. On 28 March 2007 Interpol issued Red Notice No. A-666/3-2007 for the applicant's provisional arrest with a view to extradition.
12. At 6.40 p.m. on 27 August 2007 a group of servicemen of the Russian Ministry of the Interior, assisted by Interpol officers, arrested the applicant in Domodedovo Airport, Moscow.
13. On 28 August 2007 the Moscow prosecutor's office with responsibility for supervision of the implementation of laws on marine and air-borne transport ordered the applicant's placement in custody, pursuant to Article 466 of the Russian Code of Criminal Procedure (“CCP”), until his transfer to the country which had requested extradition. The decision gave the following reasons for application of a measure of restraint:
“Gal Klein Yair is a national of a third State, has no permanent place of residence and employment on the territory of the Russian Federation, and his extradition for the purpose of serving the sentence imposed by the judgment of the District Special Criminal Court of Manizales would be impossible without ensuring [his] placement in custody.”
14. On 31 August 2007 Rossiyskaya Gazeta (“Российская газета”), a federal newspaper, published an article on its website entitled “The Mafia's Teacher Awaits Extradition” (“Учитель мафии ждет экстрадиции”), covering the applicant's story. The article read, in particular:
“Having learned of the wanted mercenary's arrest in Moscow, the Vice-President of Colombia Francisco Santos Calderon, stated that 'it should be ensured that this gentleman rots in jail for [his] participation in the training of armed groups'..
The article did not contain any reference to the source of the information on the Vice-President's statement.
15. On 28 September 2007 the Ambassador of the Russian Federation in Bogota informed the Colombian Ministry of Foreign Affairs that the Russian Prosecutor General's Office had been examining the possibility of extraditing the applicant, on condition that they be provided with a copy of the judgment against the applicant and with certain guarantees.
16. On 4 October 2007 the Colombian Ministry of Foreign Affairs informed the Russian Minister of Foreign Affairs of the following:
“Henceforth Colombia, acting on the basis of the reciprocity principle, shall transfer persons wanted by Russian law enforcement agencies to Russia for relevant criminal prosecution or execution of sentences against such persons. Mr Yair Gal Klein shall be provided with an opportunity to appeal against his conviction by the Colombian judicial bodies; Mr Yair Gal Klein shall not be subjected to capital punishment or tortures, inhuman or degrading treatment or punishment; Mr Yair Gal Klein shall be indicted only in respect of the acts mentioned in the [extradition] request.”
17. On 29 January 2008 the Prosecutor General's Office of Russia ordered the applicant's extradition to Colombia. It was mentioned that the acts for which the applicant had been sentenced were punishable under Russian law and corresponded to the crime provided for by Article 205 § 1 of the Russian Criminal Code (“assistance to terrorist activities”). The sanction established for that crime stipulated imprisonment for a term exceeding one year. The statute of limitations for the execution of sentences established by both Russian and Colombian legislation had not expired. The differences in classification of the crime in the two countries could not be a reason for a refusal to extradite. The applicant had not obtained Russian nationality. The Colombian Government guaranteed that the applicant would not be subjected to ill-treatment.
18. On 6 February 2008 the applicant appealed to the Moscow City Court against the order of 29 January 2008. He contended that, once in Colombia, he might be subjected to ill-treatment. In support of this assertion he stated as follows:
“[A]ccording to the UN General Assembly Resolution of 15 March 2006, the human rights situation in Colombia remains extremely tense. As it is stated during the hearing of the UN Human Rights Committee of 20 October 2005, there is a serious escalation of violence directly linked to actions of members of governmental forces. The report contains allegations of those violations by [the] State prosecutor's office”.
He also referred to the unstable internal situation in Colombia, caused by the civil war, and claimed that, as a result, the guarantees given by the Colombian Government were insufficient; that the five-year statute of limitation for the execution of sentences under Colombian law, as well as the ten-year statute of limitations for criminal prosecution established by Russian law, had expired in his case; that the Prosecutor General's Office wrongfully relied on the Russian Criminal Code of 1996, which had not been in force at the time of the crime in question; and that there was no extradition agreement between Russia and Colombia. No copies of the General Assembly's Resolution or minutes of the Human Rights Committee's meeting were enclosed with the appeal submissions.
19. On 11 March 2008 the Moscow City Court dismissed the applicant's complaint and upheld the order of 29 January 2008. The ruling stated that the applicant had not been convicted of political crimes and that the statute of limitation under both Russian and Colombian laws had not expired. It was also stated that the Colombian Government had guaranteed that the applicant would have a right to appeal against his conviction and would not be transferred to a third country without the Russian authorities' consent or subjected to ill-treatment. The in absentia criminal proceedings against the applicant had been carried out respecting the principle of a fair trial. Despite the absence of an extradition agreement between the two States, the applicant could have been transferred to the Colombian authorities on the basis of the reciprocity principle. As to the alleged risk of ill-treatment in Colombia, the ruling stated:
“It follows from the materials submitted by the requesting State that the crime the applicant had been convicted of is not included in the category of political crimes and that he [the applicant] has not been persecuted for political reasons.
Therefore, [the applicant's] allegations that he has been persecuted for political reasons, are unsubstantiated.”
20. On 17 March 2008 the applicant appealed to the Supreme Court of Russia against the first-instance ruling, on the grounds that that the statutes of limitations had expired, that the Russian law had been wrongfully interpreted and that there was no extradition agreement between Russia and Colombia. He also referred to a media statement by the Colombian Vice-President in which he had suggested that the sentence against the applicant had been too mild and thus “shameful”, and that it had to be ensured that the applicant would rot in jail. The applicant further alleged that the civil war in Colombia had been ongoing since 1948 and that it had caused widespread violations of human rights, including those of prisoners. He did not provide any details of the alleged violations. The applicant also claimed that the purpose of his extradition was to have him rot in jail.
21. On 22 May 2008 the Supreme Court of Russia dismissed the appeal for the following reasons. The Colombian Government had given diplomatic assurances that the applicant would not be ill-treated if extradited. They had also stated that conditions of detention in Colombian penitentiary institutions were decent and that Russian officials would have a right to visit those institutions for regular checks. There were no grounds to suspect that the applicant would be ill-treated if extradited. The applicant had not been persecuted on political grounds. According to the Colombian Embassy, officials' media statements could not affect decisions already taken by the judiciary. The Colombian Vice-President was not a hierarchical superior of the judiciary, the Ministry of Justice or the penitentiary service. The applicant's actions were punishable under Russian law in force in 1989-90, which laid down a severer sanction than Article 205 § 1 of the Russian Criminal Code. The appeal ruling read, in particular:
“There are no grounds to believe that in the event of extradition Gal Klein Yair would be subjected to torture in Colombia and that the guarantees established by law, including Article 14 of the ICCPR, would not be respected in respect of him.
It follows from the materials of an extradition inquiry carried out by the Russian Prosecutor General's Office that no facts of application to Gal Klein Yair of cruel, inhuman or degrading treatment in the requesting State have been established. There is no basis to suppose that the person to be extradited would be subjected to such treatment or punishment in Colombia in the future or that he would be subjected to the death penalty.
... The [applicant's] allegations that he was persecuted on political grounds were justifiably considered by [the Moscow City Court] as unsubstantiated.”
22. The appeal ruling of 22 May 2008 became final on the same date.
23. On 26 May 2008 the applicant requested the Court, under Rule 39 of the Rules of Court, to prevent his expulsion to Colombia. He alleged that he would face a serious risk of ill-treatment if he were extradited.
24. On 27 May 2008 the Court indicated to the Russian Government under Rule 39 that the applicant should not be extradited to Colombia until further notice.
25. On 5 June 2008 the Reuters news agency reported that “Colombia [had] attacked as insulting and flippant on Thursday a decision by the European Court of Human Rights to block the extradition of an Israeli ex-army officer convicted of training illegal paramilitaries.”
26. No one may be subjected to torture, violence or any other inhuman or degrading treatment or punishment (Article 21 § 2). The decisions and actions (or inaction) of State authorities, local self-government, non-governmental associations and public officials may be challenged in a court of law (Article 46 § 2). In conformity with the international treaties of the Russian Federation, everyone has the right to turn to inter-State organs concerned with the protection of human rights and liberties after all domestic remedies have been exhausted (Article 46 § 3).
27. The Russian Federation can extradite a foreign national or a stateless person to a foreign State on the basis of either a treaty or the reciprocity principle for standing trial or serving a sentence for a crime punishable under Russian legislation and the laws of the requesting State. An extradition on the basis of the reciprocity principle implies that the requesting State assures the Russian authorities that under similar circumstances they would grant a Russian request for extradition (Article 462 §§ 1 and 2).
28. Extradition can take place where (i) the actions in question are punishable by more than one year's imprisonment or a more severe sentence; (ii) the requested individual has been sentenced to six month' imprisonment or a more severe punishment; and (iii) the requesting State guarantees that the individual in question would be prosecuted only for the crime mentioned in the extradition request, that upon completion of the criminal proceedings and serving a sentence he or she would be able to leave the territory of the requesting State freely and that he or she would not be expelled or extradited to a third State without the permission of the Russian authorities (Article 462 § 3).
29. The Russian Prosecutor General or his or her Deputy decides upon the extradition request (Article 462 § 4). The decision by the Russian Prosecutor General or his or her Deputy may be appealed against before a regional court within ten days of receipt of the notification of that decision (Article 463 § 1).
30. The regional court, sitting in a composition of three judges, verifies the lawfulness and well-foundedness of the extradition decision within one month of the receipt of the appeal, in a public hearing at which the prosecutor, the person whose extradition is sought and his or her counsel (if the latter has participated in the earlier proceedings) may participate (Article 463 § 4). The court does not examine issues of the individual's guilt and is limited to verifying the compatibility of the extradition decision with Russian laws and treaties (Article 463 § 6). The court decides either to declare the extradition decision unlawful and to quash it or to dismiss the appeal (Article 463 § 7). The regional court's decision can be appealed against before the Russian Supreme Court within seven days of its delivery (Article 463 § 9).
31. The Conclusions and Recommendations of the Committee Against Torture with regard to Colombia (CTAS/C/CR/31/1), dated 4 February 2004, read as follows:
“7. The Committee reiterates its concern at the numerous acts of torture and ill-treatment reported widely and systematically committed by the State security forces and organs in the State party both during and outside armed operations. It also expresses its concern at the high number of forced disappearances and arbitrary executions ...
8. The Committee expresses its concerns that measures adopted or being adopted by the State party against terrorism and illegal armed groups could encourage the practice of torture...
9. The Committee also expresses its concern at ... (a) the climate of impunity that surrounds human rights violations by State security forces and organs and, in particular, the absence of prompt, impartial and thorough investigation of the numerous acts of torture or other cruel, inhuman or degrading treatment or punishment and the absence of redress and adequate compensation for the victims; ... (e) the overcrowding and poor conditions in penal establishments, which could be considered inhuman or degrading treatment.”
32. The Concluding Observations of the Human Rights Committee: Colombia (CCPR/CO/80/COL), of 26 May 2004, read as follows:
“11. The Committee is concerned about the fact that a significant number of arbitrary detentions, abductions, forced disappearances, cases of torture, extrajudicial executions and murders continue to occur in the State party... The Committee is also disturbed about the participation of agents of the State party in the commission of such acts, and the apparent impunity enjoyed by their perpetrators.”
33. On 29 November 1996 a mandate for activities of a field office of the UN High Commissioner for Human Rights (OHCHR) in Colombia was established by an agreement between the Government of Colombia and the ONCHR. On 9 September 2007 the parties agreed to extend the mandate, in its entirety, until 30 October 2010. The Report of the UN High Commissioner for Human Rights on the situation of human rights in Colombia (A/HRC/7/39), dated 29 February 2008, reads as follows:
“4. ...[I]t must be recognized that Colombia has made progress in restoring security throughout the country in recent years, and the visibility given to human rights in the public agenda is a solid achievement.
...
31. The office [of the OHCHR] in Colombia has received information on cases of torture, cruel, inhuman and degrading treatment and the excessive use of force by members of the security forces. ... [I]n some extrajudicial executions attributed to Army personnel, the victims had been tortured.
...
34. Complaints were made about illegal or arbitrary detentions in which warrants were exclusively based on the testimony of former guerrillas, which was not properly corroborated by other evidence...
35. Some judicial decisions have questioned the impartiality of witnesses, such as former guerrillas or paramilitaries who receive economic benefits for their testimonies...
36. According to official data, overcrowding in prisons has reached an average of 20.6 per cent, and the situation is much worse in some establishments... The current situation requires additional efforts and measures to meet the basic needs of prisoners, such as health, food, sanitation, legal advice and expert assistance...”
34. The Annual Report of the UN High Commissioner for Human Rights on the situation of human rights in Colombia (A/HRC/10/32), of 9 March 2009, reads as follows:
“The High Commissioner acknowledges the spirit of cooperation existing between the Government and her Office in Colombia. She also notes the openness of the Government to addressing human rights challenges, as demonstrated during the universal periodic review process.
...
2. ...In compliance with [its] mandate, OHCHR Colombia continues to assist the authorities in developing policies and programmes to promote and protect human rights, to advise civil society on human rights issues, to observe the situation of human rights and international humanitarian law in the context of the internal armed conflict, and to submit its reports and analyses to the High Commissioner.
...
3. The High Commissioner visited Colombia from 27 October to 1 November 2008. She met with the President, ministers, and senior public officials in charge of protecting and promoting human rights. She also met with representatives of civil society organizations, including human rights and women's NGOs, victims' associations and trade unions. The High Commissioner travelled to Arauca, where she learnt about the regional human rights challenges, meeting with community leaders and civilian and military authorities. The High Commissioner expressed to all her interlocutors her gratitude for the support that OHCHR Colombia has been receiving. She also highlighted the Government's efforts to promote accountability and respect for human rights within the Armed Forces and to demobilize paramilitary groups. While the High Commissioner noted the increased attention given to victims' right to truth, justice and reparation, she also expressed concern at the persistence of entrenched human rights challenges.
4. The Special Representative of the Secretary-General for Children and Armed Conflict visited Colombia from 12 to 14 May 2008. The Working Group on Arbitrary Detention also visited the country from 1 to 10 October 2008.
5. On 10 December, Colombia was reviewed by the United Nations Human Rights Council, in the context of the universal periodic review.
...
10. ...[T]he President initiated discussions with senior military commanders to address complaints of extrajudicial executions.
11. However, the number of complaints about extrajudicial executions and the number of victims reported showed that institutional policies adopted by the Ministry of Defence and the army High Command to combat this practice have not, as of October 2008, led to a significant decrease in such violations. Renewed efforts are needed to guarantee the effectiveness of and strict compliance with institutional policies to prevent and punish extrajudicial executions.
12. By late November 2008, the Attorney-General's Office had initiated investigations into 112 cases of alleged extrajudicial executions which occurred in 2008. In addition, 473 additional cases, most of which occurred in 2006 and 2007, were referred to the Attorney-General's National Human Rights and International Humanitarian Law Unit in 2008. This Unit is currently investigating nearly 716 cases related to over 1,100 victims. These figures confirm that extrajudicial executions are not isolated events, but a widespread practice committed by a large number of military units throughout the country...
...
18. OHCHR Colombia was informed of cases of cruel, inhuman and degrading treatment or punishment attributed to members of the security forces in Antioquia, Cauca and Chocó...
...
20. In early 2008 OHCHR Colombia noted cases of serious inhuman and degrading treatment of inmates at the prison of Valledupar (Cesar), as well as excessive use of force by prison guards to put down protests.”
35. 2008 Country Reports on Human Rights Practices – Colombia, issued by the United States Department of State on 25 February 2009, reads as follows:
“Colombia is a constitutional, multiparty democracy... In May 2006 independent presidential candidate Alvaro Uribe was reelected in elections that were considered generally free and fair. The 44-year internal armed conflict continued between the government and terrorist organizations, particularly the Revolutionary Armed Forces of Colombia (FARC) and the National Liberation Army (ELN). While civilian authorities generally maintained effective control of the security forces, there were instances in which elements of the security forces acted in violation of state policy.
Although problems remained, the government's respect for human rights continued to improve, which was particularly evidenced by progress in implementing the Justice and Peace Law.
...
Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment
Although the law prohibits such practices, there were reports that the police, military, and prison guards sometimes mistreated and tortured detainees. Members of the military and police accused of torture were tried in civilian rather than military courts. CINEP asserted that, during the first six months of the year, government security forces were involved in 74 incidents of torture, a 46 percent increase compared with the first six months of 2007. CINEP also reported that, during the first six months of the year, there were 66 victims of torture by the armed forces.
...
Prison and Detention Center Conditions
With the exception of new facilities, prison conditions were poor, particularly for prisoners without significant outside support. The National Prison Institute (INPEC) runs the country's 139 national prisons and is responsible for inspecting municipal jails.
Overcrowding, lack of security, corruption, and an insufficient budget remained serious problems in the prison system. As of year's end, more than 69,000 prisoners were held in facilities designed to hold fewer than 50,000; overcrowding rates exceeded 27 percent in 139 installations. Many of INPEC's 13,000 prison guards and administrative staff were poorly trained. The NGO Committee in Solidarity with Political Prisoners noted that improved training, increased supervision, and more accountability for prison guards has helped, but expressed fear that greater privatization of the prisons system may lead to further corruption.
Constrained budgets adversely affected prison conditions. INPEC spent 4,941 pesos ($2.00) per day on each inmate for food. Private sources continued to supplement food rations of many prisoners.
INPEC reported that during the year there were 40 violent deaths among inmates related to fighting and riots. From January to September 30, there were 14 riots at various penal institutions. The Prosecutor General's Office continued to investigate allegations that some prison guards routinely used excessive force and treated inmates brutally. According to the Superior Judicial Council (CSJ), there were four judgments for excessive force made against prison guards during the year.
...
Political Prisoners
The government stated that it did not hold political prisoners. Some human rights advocacy groups characterized as political detainees some detainees held on charges of rebellion or terrorism in what the groups claimed were harassment tactics by the government against human rights advocates. During the year there were 3,336 prisoners accused of rebellion or aiding and abetting insurgence, 2,263 of whom were accused of supporting the FARC. The government provided the ICRC access to these prisoners.”


ITEMID: 001-95788
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: ADMISSIBILITY
DATE: 2009
DOCNAME: MARTYNETS v. RUSSIA
IMPORTANCE: 3
CONCLUSION: Inadmissible
JUDGES: Anatoly Kovler;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;Khanlar Hajiyev;Sverre Erik Jebens
TEXT: The applicant, Valentina Kirillovna Martynets, is a Ukrainian national. She was born in 1937 and lives in Sebastopol.
The applicant sued Ms M. and Ms G. in the Oktyabrskiy District Court of the Kursk Region, contesting their property rights to a house in the village of Repino located in that district. Ms M. brought a counter action, claiming her property rights on certain buildings and a plot of land in the same village.
On 4 February 2008 the court dismissed the applicant's claim and partially granted that of Ms M.
On 10 April 2008 the Kursk Regional Court upheld the judgment on appeal. The judgment thus became binding and enforceable on that date.
Subsequently, the applicant lodged consecutive applications for supervisory review with the Kursk Regional Court, the Civil Chamber of the Supreme Court and the President of the Supreme Court of the Russian Federation. These applications were dismissed on 28 May, 30 July and 7 October 2008 respectively.
Under the Code of Civil Procedure, binding and enforceable judgments are amenable to supervisory review by higher judicial instances at various levels. The supervisory review procedure was repeatedly amended over the past years.
The supervisory review procedure in force up to 1 February 2003 is presented in the Court's judgment in the case of Ryabykh (see Ryabykh v. Russia, no. 52854/99, ECHR 2003IX).
On 1 February 2003 the new Code of Civil Procedure entered into force. The provisions governing the supervisory review procedure between 1 February 2003 and 7 January 2008 are presented in the Court's previous judgments and decisions (see Denisov v. Russia, no. 21823/03, 25 January 2007, and Sobelin and Others v. Russia, nos. 30672/03, 30673/03, 30678/03, 30682/03, 30692/03, 30707/03, 30713/03, 30734/03, 30736/03, 30779/03, 32080/03 and 34952/03, § 34, 3 May 2007). In particular, the new Code provided that supervisory review applications against binding and enforceable judgments could only be lodged by the parties to the proceedings and other persons whose rights and legal interests were affected by the judgments concerned. The Code also set a one-year time-limit for lodging such applications.
In the judgment of 5 February 2007 (No. 2-П) the Constitutional Court of the Russian Federation found that the supervisory review procedure governed by the Code of Civil Procedure gave rise to a number of issues with regard to the principle of legal certainty enshrined in the Convention, as interpreted by the European Court of Human Rights. The Constitutional Court found in particular that binding and enforceable judgments delivered by courts of general jurisdiction could be altered in supervisory review proceedings not only consecutively but also indefinitely. The court explicitly refrained from declaring these and other shortcomings of the supervisory review procedure unconstitutional, in order to avoid a procedural vacuum that would undermine the effective administration of justice. It upheld nonetheless the obligation of the legislator to reform the supervisory review procedure so as to make it compatible with the principle of legal certainty, taking account of the case-law of the European Court of Human Rights and of Resolution ResDH (2006)1 of 8 February 2006 of the Committee of Ministers of the Council of Europe.
The Constitutional Court also stated that the domestic remedies should not be considered exhausted within the meaning of Article 46 § 3 of the Constitution prior to the judgment delivered on supervisory review, as the latter may find a violation of any right and repeal the domestic decision at issue. The Constitutional Court concluded that individuals should be able to complain to the European Court of Human Rights upon completion of the supervisory review procedure, provided the latter is reformed so as to constitute an effective judicial remedy compatible with the constitutional requirements and the present judgment of the Constitutional Court.
On 7 January 2008 the Law of 4 December 2007 (no. 330-ФЗ) entered into force, introducing a number of further amendments to the supervisory review procedure.
Under the new provisions, judicial decisions may be challenged in supervisory review proceedings within six months of the date they become legally binding. Supervisory review proceedings may be entered into by parties to a case and by other persons whose rights or legal interests have been adversely affected by these decisions, and only if other available ways of appeal have been exhausted before the decision becomes legally binding (Article 376). This time-limit may be waived (restored) only in exceptional circumstances which exclude any possibility of lodging a complaint in time (severe illness or incapacity of the plaintiff and so on), if such circumstances occurred within one year after the contested judgment became binding (Article 112 § 4).
There are several levels of supervisory review of legally binding judgments and decisions. First, presidia of regional courts exercise supervisory review of judgments and decisions delivered by lower courts and by regional courts themselves acting as cassation instances (Article 377 § 2(1)). Second, judgments and decisions are amenable to supervisory review by the Civil Chamber of the Supreme Court of the Russian Federation (Article 377 § 2(3)). Third, decisions taken by the Civil Chamber on supervisory review may be challenged before the Presidium of the Supreme Court of the Russian Federation if they disrupt the uniformity of the case-law (Article 377 § 3).
Moreover, the President or Deputy President of the Supreme Court of the Russian Federation may initiate supervisory review of binding judgments by the Supreme Court's Presidium on a limited number of grounds and upon an application by the persons concerned, lodged within six months of the date the judgment became binding (Article 389).
A supervisory review application to a regional court is considered by the president or deputy president of this court or by a judge delegated for this purpose (Article 380.1 § 1). Applications for supervisory review which are lodged with the Supreme Court of the Russian Federation are considered by a judge of this court (Article 380.1 § 2).
An application for supervisory review is considered by any court, except the Supreme Court of the Russian Federation, within one month if the case file has not been requested, and within two months if the case file has been requested from the lower instance, excluding the time elapsing between the request of the case file and its receipt. For supervisory review in the Supreme Court of the Russian Federation these time-limits are two and three months respectively; the latter may be extended by two months by the President or Deputy President of the Supreme Court (Article 382). Once it has been decided to transmit a case to the relevant instance for supervisory review, it must be examined within one month by the court and within two months by the Supreme Court (Article 386 § 1).
The judge considers a supervisory review complaint on the basis of the material appended thereto and, where appropriate, on the basis of the case file requested from the lower instance (Article 381 § 1). The judge makes a decision to transmit the application for supervisory review by the relevant instance or to refuse to do so (Article 381 § 2). The President or Deputy President of the Supreme Court of the Russian Federation may overrule a decision of the judge of this court to refuse to transmit the application for supervisory review (Article 381 § 3). A similar power of the regional courts' presidents in respect of supervisory review applications lodged with presidia of those courts was abolished (former Article 383 § 2).
The grounds for quashing or varying of binding judgments on supervisory review were limited to significant violations of substantive or procedural law which influenced the outcome of the proceedings and must be corrected in order to restore and protect rights, freedoms and lawful interests and to safeguard public interests protected by law (Article 387).
If the supervisory review instance decides to quash the judgment or decision in full or in part, it may take any of the following actions: send the case back to a lower court for a new consideration, discontinue the proceedings, restore one of the lower court decisions, modify the decision or make its own decision without sending the case for new consideration (Article 390 § 1).
The supervisory review is carried out on the basis of the arguments contained in the application. While the court may also invoke its own arguments, the supervisory review must not extend to those parts of the judgment that were not contested in the application (Article 390 § 1.1).
Having noted questions arising in the courts' application of the supervisory review procedure as amended by the Law of 4 December 2007, the Supreme Court of the Russian Federation clarified various points in its ruling of 12 February 2008 (No. 2).
The Supreme Court stated that the six-month time-limit applies to all supervisory review instances; it is not to be renewed after every rejection of a supervisory review complaint and application to a higher instance. On the other hand, the time spent by courts in considering supervisory review complaints should not be taken into account in the calculation of this time-limit. The court reiterated the exceptional nature of circumstances allowing this time-limit to be waived (restored) upon application by a physical or legal person. Courts should not take account of any such circumstance occurring later than one year after the judgment became binding. A decision waiving the time-limit should be duly motivated.
The Supreme Court reiterated the obligation of exhaustion of ordinary ways of appeal prior to application for supervisory review. It also stated that the court examining an application for supervisory review should not take account of any document which has not been examined by the court of first instance and, in certain cases, by the court of second instance.
The Supreme Court finally drew the courts' attention to new limits on the grounds for supervisory review enshrined in Article 387, which should be read in the light of the Convention provisions. Referring to the principle of legal certainty, it stated that courts are not entitled to review a legally binding judgment merely for the purpose of obtaining a rehearing and a new judgment; a different opinion of the supervisory review instance on the way the case should have been decided is not a sufficient reason for altering the lower court's decision.


ITEMID: 001-100506
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: CHAMBER
DATE: 2010
DOCNAME: CASE OF SZYPUSZ v. THE UNITED KINGDOM
IMPORTANCE: 3
CONCLUSION: No violation of Art. 6-1
JUDGES: David Thór Björgvinsson;Ján Šikuta;Lech Garlicki;Mihai Poalelungi;Nicolas Bratza;Päivi Hirvelä
TEXT: 5. The applicant was born in 1985 and is currently detained in HMP Lowdham Grange, Nottingham.
6. On 30 May 2004, at around lunch time, an argument broke out between the applicant and D.M. in a residential street. The applicant had been trying to park a car he was driving and had collided with a parked car which belonged to D.M. Within about half an hour of the dispute, a third man, D.G., arrived at the scene equipped with a loaded shotgun and shot D.M. in the back of the head. D.M. survived but suffered permanent brain damage.
7. The Crown case was that D.G. had been summoned to the scene by the applicant and another co-accused, M.H., using a mobile telephone belonging to M.H. The applicant was charged with attempted murder and making threats to kill. The applicant denied the charges, alleging that he had left the scene at an early stage and gone to a neighbouring house. He disputed allegations that he had played any part in summoning D.G.
8. The Crown's evidence regarding the alleged phone calls came from a number of sources. They pointed to the fact that the applicant was the party involved in the original dispute and that, according to witnesses, he had made threats of violence and of death. An important part of the Crown case involved video recordings from closed circuit television (CCTV) cameras near the scene. From a combination of video recordings and mobile telephone records for M.H.'s telephone, the Crown contended that the applicant could be seen making certain calls. There was also eye witness evidence of him making at least one of the critical calls. In total, the Crown case was that six relevant calls were made from M.H.'s mobile telephone to D.G. or one of his associates.
9. The applicant's case at trial was that he had made no calls on M.H.'s mobile telephone. He accepted that eye witness evidence and CCTV recordings demonstrated that he had used a telephone at certain points. However, he said that he was a drug dealer using his own telephone and that the calls were made for his own criminal purposes and were nothing to do with the summoning of D.G. As regards one part of the CCTV footage, the applicant denied the Crown contention that it showed him making a call at a relevant time.
10. A compilation of the CCTV footage was shown a number of times during the trial. It was played on specialist digital equipment, which was more sophisticated than an ordinary video recorder, specially installed for the trial. It had a number of facilities, including a better capacity to freeze frames, to step forwards and backwards from frame to frame and to coordinate views of different cameras at any particular moment. The machine was operated by a detective constable, Officer M, who had been specially instructed how to use it. Officer M was a member of the investigating team of police officers which had conducted the inquiry into the applicant's case. He was, formally speaking, a witness in the case in the sense that he had made two single paragraph statements recording taking possession of some of the CCTV tapes and had made an uncontroversial statement relating to the taking of a mouth swab sample for DNA analysis from one of the other accused in the applicant's case. Over the period of the trial, which lasted around a month, he had made his services available not only at the trial itself but also to the Crown and the defendants outside the court.
11. There was some early discussion about the possibility that the jury would wish to view the recordings after they retired. Leading counsel for the applicant directed the judge's attention to short notes in Archbold's Criminal Pleading, Evidence and Practice, an authoritative text on Crown Court practice and procedure, on the replaying of various different kinds of recording which may figure in trials. The matter was left that there was no reason why the recordings could not be taken into the jury room and played there by the jury if required.
12. At the conclusion of his summing-up, the judge told the jury that should they wish to view the recordings again, they only had to ask. The following dialogue took place:
“Judge: 'Ladies and gentlemen, it may be that you will want to see the videos again. Have arrangements been made for the jury to see them in their room?'
Counsel for the prosecution: '...It is impossible, as I understand it, in fact, to take this into the jury's room. There are, therefore, either two options: either to watch a VHS video on the normal equipment in their room, or alternatively, there is the higher quality–'
Judge: 'The jury must watch what has been shown in court.'
Counsel for the prosecution: 'In that case, I am afraid the position must be that as and when the jury require it, they will have to come back and see it in court.'
Judge: 'There you are. Any time you want to see the video, you can pass a note ...'”
13. The jury subsequently retired. On the second day of their deliberations, they indicated their wish to start reviewing the video evidence in the afternoon. Counsel were advised of the jury's request and the court convened with junior counsel for the applicant among those attending. The following discussion ensued:
“Counsel for the prosecution: '... the only issue that arises as a result of the CCTV request is who exactly is present in court when they view the material. It is a matter that we have discussed between counsel, and of course, subject to your Lordship's view, I think the general view is that if they are able to watch it on their own, it would be much more constructive – if counsel and your Lordship were not present. In other words, if this was an extension of their jury room–'
Judge: 'And then we would have – what – just the officer working the machine?'
Counsel for the prosecution: My Lord, that is the only outstanding issue, and I am afraid I have not had an opportunity to speak to [Officer M] – who, as your Lordship knows, is the man in charge of the machinery – as to whether it would be possible for the jury to be shown very briefly how to operate the machinery, or whether that is unrealistic.'
Judge: 'I should imagine that it is unrealistic–'
Counsel for the prosecution: 'In which case I understand–'
Judge: 'I mean, you have to go backwards and forwards, and you have to catch particular frames, and I think you will probably need [Officer M] –'
Counsel for the prosecution: 'My Lord, I am inclined to agree, in which case it would be my suggestion, on behalf of the Crown, that he remains, and at their instruction operates the machinery–'
Judge: 'And does nothing else but to operate the machinery–'
Counsel for the prosecution: 'Indeed – and, of course, makes no communication to them or to anyone else –'
Counsel for M.H.: 'Except where they will want to go backwards or forwards –'
Counsel for the prosecution: 'Except, of course, to talk to them about operating the machinery.'
Judge: 'Does anyone have any objections to the court being cleared, along with the defendants and the public gallery, and simply leaving [Officer M] there – and in that case, I do not think I need ask the jury what they want to see.'
Counsel for the prosecution: 'My Lord, no.'
Judge: 'That is probably much better.'
Counsel for the prosecution: 'Indeed. Thank you very much.'
Judge: 'Thank you. Does everybody agree?'
Counsel for the prosecution: 'My Lord, yes.'
Counsel for D.G.: 'My Lord, yes.'
Counsel for M.H.: 'My Lord, yes.'
14. No assent was recorded from junior counsel for the applicant but no objections were raised to the course of action proposed.
15. The judge instructed the jury to return and directed them as follows:
“Ladies and gentlemen, having discussed this matter with counsel, what we are going to do is this: we are going to leave [Officer M] in this court with you, and he will play any part of the video that you have seen, and he will play it as you think fit. Remember that there is more than one camera that operates – that sometimes you are viewing camera no. 1, and I think at other times camera no. 2. [Officer M] cannot do anything other than operate the video machine, and there is to be no other communication with him – or any communication from him – than simply asking him to play you what you want to see – and I think it is probably better, because he was in court – and apart from discussing among yourselves, perhaps, what you want to see, any other discussion is in your jury room ...”
16. The jury was left alone in the court room with Officer M at 2.05 p.m. to begin reviewing the video evidence.
17. As soon as leading counsel for the applicant, who had been engaged elsewhere during the earlier discussions with counsel regarding the viewing of the video recordings as the applicant's trial had overrun, was informed of the course of action adopted, a request was made to reconvene the court at 3.30 p.m. The judge agreed to reconvene at 4 p.m. as he did not wish to interrupt the jury's viewing of the video evidence. The jury spent almost two hours viewing the video recordings in the presence of Officer M.
18. When the court reconvened, leading counsel for the applicant directed the judge's attention to various authorities, including Archbold's Criminal Pleading, Evidence and Practice, and the following discussion took place:
“Counsel for the applicant: 'The court has, for all purposes, during this afternoon, whilst the jury have been reviewing the material, really been an extension of the jury room –'
...
Counsel for the applicant: 'And what has happened, in reality, is that an individual – he happens to be a police officer – an individual has, in fact, been within that jury room –'
Judge: 'There was instructions –'
Counsel for the applicant: 'I know that, but the difficulty with that is that the person who would normally be supervising “the sanctity”, if I can put it that way, of the jury – because, of course, normally there is no problem; they are in their jury retiring room, and there is no individual who can come near them –'
Judge: 'No –'
Counsel for the applicant: 'Because the jury bailiff acts in accordance with their oath, as one expects, to prevent that – by my understanding is that this afternoon there has been no such person present.'
Judge: 'But are you saying that if one of the jury bailiffs had been present, that would be all right? That would have caused other problems.'
Counsel for the applicant: 'My Lord, I am trying to see a way through it. This is a very unusual circumstance.
Judge: 'The unusual circumstance is this ...: we cannot put the equipment in the jury room'.
Counsel for the applicant: 'Yes, I understand that'.
Judge: 'And that is the first problem ... The second problem is that the jury could not work the equipment.'
...
Counsel for the applicant: '...we understand that [Officer M] was able, in fact, to instruct another officer how to use this machine in pretty short order.'
Judge: 'Perhaps, but that is how it was presented to me –'
...
Counsel for the applicant: 'I am merely looking at the peculiar situation that arises here, and the simple fact of the matter, if we boil it down to first principles, is quite simply this: throughout this afternoon, there has, in fact, been an outsider in the jury retiring room. Your Lordship, of course, has given directions, and so be it. In fact, we cannot inquire – certainly from the jury – as to whether that was followed, because we have no right –'
Judge: 'No, I agree –'
Counsel for the applicant: 'And the problem is this: that those who sit behind the dock are essentially put on trust in relation to the police officer's lack of communication, and as soon as one recognises that, that, essentially, cannot be right, because there is no reason why they should, as it were, feel that they can trust the police officer to that extent ...'
19. Counsel for the applicant then suggested that the police officer could continue to operate the equipment but that the presence of a jury bailiff in the jury room would ensure that there was no communication between the parties in light of the oath sworn by the jury bailiff to prevent any communication with the jury. The following exchange took place:
“Counsel for the applicant: 'If the jury bailiff's oath is that they are to stop any approach by any outsider to the jury, then any communication as to which section of tape the jury wish to see should, in fact, go through that conduit, and that can be in the same room, but the jury bailiff can ensure that there is no communication directly between the parties.'
Judge: '... You are suggesting that the police officer could operate the machinery – that is obviously the most convenient way to do it, even if there could possibly be other ways ... – but the jury bailiff has to be present?'
Counsel for the applicant: 'Yes, because the jury bailiff, consistent with his or her oath, is duty bound to stop all communication, and essentially, that communication can only be complained of if it came from the officer. I am not saying for one instant – for one instant – that I have reason to believe that that has happened.'
Judge: 'No.'
Counsel for the applicant: 'I am merely looking at it from a point of principle ... The system ... has a safeguard within it, and normally that is the jury bailiff, who essentially guards the sanctity of the jury once they have retired.”
20. The judge observed that there was a need to protect the privacy of the jury while preserving the integrity of the situation. However, he pointed out that “the die had been cast” and that:
“... either the procedure in the circumstances of this particular case is acceptable, or it is not. I am not sure I would want to change it now. I mean, counsel can consider all of this overnight –”
21. He later continued:
“... I think I ought to state for the record – and I will – precisely what has happened, so that there can be no doubt about it. I will give counsel a chance to consider this matter ... it may be that it is just not sensible to do anything different, and if something has gone wrong, it has gone wrong – but I will give counsel a chance to consider the matter overnight, and if they want to suggest to me anything – alternative procedures – not very different than what we are doing – but any modified procedures, tomorrow I will listen to them.”
22. It was then suggested by counsel for M.H. that either the jury themselves be instructed how to use the equipment or that the video be played in open court in the presence of the judge. The following morning, a solution was agreed which would allow the jury to operate the equipment themselves, with information provided to assist them in locating the part of the recordings that they wished to view. The judge subsequently advised the jury as follows:
“We have reconsidered the procedure for your viewing [the CCTV] footage, and in order to give you complete freedom for discussion amongst yourselves as you view that footage, we propose to give you the opportunity to do so in the absence of any other person.
What we propose is this: that you should be shown in a moment or two in open court, with everybody present, how that equipment works, and you will then be left to it, and you will decide exactly who is to operate it, and what you wish to see.
Can I remind you that the tape is a composite tape containing footage from three cameras. You will be given a sheet of paper – this one – containing an index of counter times, which show where footage from each camera begins, and what each camera is focused on ... If you have any problems in working the equipment, let me know, and I will reconsider the position ...”
23. The jury subsequently viewed the video recordings alone for about an hour. They continued their deliberations for the rest of the day and into the following morning.
24. On 25 February 2005, the jury found the applicant guilty of attempted murder and making threats to kill. He was sentenced to 25 years in prison for attempted murder and three years, to be served concurrently, for making threats to kill. His co-accused, M.H., was found not guilty.
25. The applicant appealed, arguing that the approach taken to the viewing of the video recordings amounted to a fundamental infringement of the integrity of the jury's deliberations.
26. On 20 June 2006, the Court of Appeal dismissed the applicant's appeal. The court summarised the matter before it as follows:
“[Counsel for the applicant] contends now, as foreshadowed in his submissions to the judge on his return to court, that the course taken amounted, however unwittingly, to a fundamental infringement of the integrity of the jury's deliberations. He takes his stand on the point of principle. He contends that when somebody has retired, in effect, with the jury for a substantial period the conviction is, for that reason alone, unsafe. He adds, of course, that in this particular case it was a policeman who was in that position.”
27. Discussing the role of Officer M, the court noted that:
“The officer in question was a serving police officer. He was a member of the investigating team of police officers which had conducted the enquiry into this case. That was a team which had assembled the evidence, taken the statements, and no doubt planned the investigation. He was, formally speaking, a witness in the case, in the sense that he had made two single paragraph statements recording taking possession of some of the close circuit television tapes and he had also made an entirely uncontroversial statement relating to the taking of a mouth swab sample for DNA analysis from one of the other accused ... There was no hint of question about the formal statements that he had made. He had not been called as a witness. His credibility was not in any sense in issue. He was a member of the investigating team, but this was not a case in which there was any challenge to the credibility or propriety of any of the police officers. This was not that kind of a case. There was no challenge whatever to the manner of investigation. The issue at the trial was what the evidence, which the police were accepted properly to have gathered, did or did not prove.”
28. During the proceedings, the Court of Appeal had been invited to receive a witness statement from Officer M which had not been seen by the applicant or his lawyers. However, it concluded on this matter (at paragraph 28) that:
“...we do not think that we should be invited to receive partial evidence of what occurred. We are certainly satisfied that no further enquiry, for example of jurors, would in a case of this kind be proper”.
29. The court examined the trial transcript and, despite the absence of any recorded assent from the applicant's junior counsel to the jury's viewing of the CCTV footage in the presence of Officer M, stated that it had absolutely no doubt that assent to the presence of Officer M while the jury viewed the CCTV footage was given by all counsel concerned, referring to the various, non-verbal manners of expressing assent in such situations.
30. The court agreed that a fair trial required that a jury should not be improperly influenced during its deliberations. The Court observed that this was not a case where any bias, or apparent bias, was in question. The question was whether the conviction was safe, and in particular whether the unusual course taken meant that there was an unacceptable risk that the jury may have come under improper extraneous influence after the close of evidence in the case. The court accepted that this would include an inquiry into whether there was such appearance of that possibility that a fair minded, independent observer would conclude that there was a real danger or a real possibility of the jury's decision being compromised by external influence.
31. The court found (at paragraphs 44-45):
“In the modern era our system proceeds upon the basis that jurors can be trusted to heed the very careful injunctions which are given to them throughout the trial process, to try the case upon the evidence heard in court alone and to be scrupulous in not discussing the case with anybody outside their number. Such directions are conventionally given by judges at the outset of the trial. They will have been foreshadowed before that by the instruction given to jurors on attending court. They are always repeated at later stages of the trial and they are invariably endorsed at time of separation, if that necessity arises. Quite apart from that, some jurors need transport for various reasons; sometimes, but not always, of security. Drivers who are not operating under a bailiff's oath, hotel staff where appropriate, and many others have dealings with jurors who are in retirement. Once again, the system proceeds on the basis that the jurors treat their task conscientiously and can be trusted to obey the oath that they have taken and not to allow any possibility of extraneous influence to compromise the integrity of their discussions as a group of 12. The experience of trial judges up and down the country demonstrates that in all but a tiny handful of cases that trust is well placed. Jurors approach what is a difficult and often anxious task with a remarkable sense of duty.
Now to accept the risk which thus arises of influence from someone unknown and unconnected with the case is not, of course, the same as positively to permit a 13th person to be present with the jury after it has retired and whilst it is reviewing part of the evidence in the case. If, therefore, there were in this case an unacceptable risk of compromise to the integrity of the jury's discussions, the modern practice as to the separation of juries during retirement would not necessarily save it. What the modern practice does, however, is to demonstrate the recognition of the fact that the safeguard of the integrity of the jury system lies in the respect that jurors have for the serious oath that they have taken, reinforced by the directions and warnings that they are given by trial judges, rather than in requiring formal rules attempting to insulate them from contact with the outside world.”
32. The court noted that the approach adopted in the present case occurred with the authority of the judge and with the consent of all parties, although it emphasised that no question arose as to the applicant's right to a fair trial being waived. Such a right could only be waived after a full investigation of the facts, in particular as to whether the applicant was fully apprised of the options available. However, the court considered that the agreement of the judge and counsel to the approach adopted was relevant when assessing whether a fair minded observer would have been of the view that there was, as a result of the decision, an unacceptable risk of the jury's discussions being compromised.
33. The court further referred to the “careful direction” given to the jury that there was to be no communication between them and the officer operating the equipment except for the purposes of finding the correct place on the video. The court noted (at paragraph 50):
“He directed them, as we have recorded, that they were to preserve their own discussions of what they had seen until they were in private. That direction came on top of, we are quite sure, conventional directions to the jury of the kind which we have already mentioned that is to say as to the necessity to try the case on the evidence, and, on many occasions, to be scrupulous to avoid discussing the case with anybody outside their number. For the reasons which we have explained, the modern practice is to trust jurors to obey injunctions of this kind.”
34. The court noted that the suggestion mooted before the trial judge of having a jury bailiff present demonstrated that there could be no absolute prohibition on contact with the jury. It further observed that there was no indication that the jury had been in any way inhibited by the presence of the police officer: they spent considerable time viewing the recordings. In any event, they continued to view the recordings alone the following morning and clearly gave further consideration to them.
35. Finally, the court considered it significant that the jury had convicted the applicant of attempted murder but acquitted of attempted murder his coaccused, M.H., who was also directly affected by the CCTV evidence. The significance was that:
“... the jury arrived, after prolonged deliberation, at discriminating verdicts.”
36. The court concluded (at paragraph 55):
“We are satisfied that on the facts of this case, whether or not what occurred should have happened – and we will come to that in a moment – the hypothetical informed and fair minded observer would be aware of all the factors to which we have called attention and he would, we are satisfied, on the facts of this case not believe that there was a real danger, or a real possibility, that the jury's deliberations had been improperly influenced by an external individual.”
37. As to the approach adopted to the viewing of the video evidence as a matter of principle, the court stated (at paragraphs 56-57) that:
“We add this. Although in this case we are satisfied that no harm was done, we firmly suggest that this is a course which is not followed in future with or without the consent of the parties. We are alive to two considerations which troubled those who were concerned in this case and we understand how it came about that they resulted in the judge doing what he did with the consent of all the parties. We do not, however, think that anybody needed to be concerned that a jury would betray its thinking by identifying a piece of recording that it wanted to see again. Jurors commonly ask questions on all manner of topics. Some of them call for the jury to be reminded of a particular area of evidence. We do not believe that anybody who has any experience of jury trials supposes that anything can be read into the questions which a jury asks. Such a question may come from all jurors or from one. It may come because the evidence is regarded by someone as of great importance or it may come because the jury collectively thinks it is irrelevant but wants to be sure.
The second concern, however, namely that the jury ought to be able to view real evidence of this kind, and discuss it as it views it, is of much greater significance. The breadth of close circuit television coverage in places public and private is nowadays so extensive that juries are more and more presented with evidence of this kind. They also have recorded evidence very often in cases of recorded surveillance. There are other examples, of course, as well. It seems to us that it should be regarded as the plain duty of any party, Crown or defence, which is proposing to rely on such recorded evidence to ensure that there is provided equipment not only to play the recording in court, but also such as the jury can use in its retiring room during its retirement. They must, we are quite satisfied, as jurors be entitled to review precisely the same material as has been put in evidence in court. The judge in this case, we are satisfied, was absolutely right not to permit them to be given a substitute poorer quality VHS recording. If the necessary equipment can be provided in any particular court by agreement as to compatibility of machinery between parties and the court, then so much the better. The ultimate responsibility, however, for the presentation of evidence lies not with the court, but with the parties seeking to adduce it. It is not desirable that equipment should be provided which can only be used in open court, because although it may turn out to be possible to proceed as was done here on the second day of viewing, that will often not be possible, and in many courts the courtroom will by then be in use in the next trial. If in the last resort it really is the case that the recorded material simply is incapable of being played on any machinery which the jury can take into the retiring room -- and we take leave to doubt that that will ever be so with a little forethought -- then we think that the normal course should be followed and in that exceptional case any replaying for the jury during retirement ought to take place in open court.”
38. On 22 August 2008, the applicant was denied leave to appeal to the House of Lords.
39. In a judgment of the House of Lords in Magill v Porter [2001] UKHL 67, Lord Hope of Craighead endorsed a judgment of the Court of Appeal, which took into consideration the jurisprudence of this Court, on the question of apparent bias and concluded that:
“The question is whether the fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that the tribunal was biased.”
40. In Helow v Secretary of State for the Home Department and Another (Scotland) [2008] UKHL 62, the House of Lords gave further guidance as to the attributes of the “fair-minded and informed observer”. Lord Hope of Craighead explained (at paragraphs 2-3) that:
“The observer who is fair-minded is the sort of person who always reserves judgment on every point until she has seen and fully understood both sides of the argument. She is not unduly sensitive or suspicious ... Her approach must not be confused with that of the person who has brought the complaint. The 'real possibility' test ensures that there is this measure of detachment. The assumptions that the complainer makes are not to be attributed to the observer unless they can be justified objectively. But she is not complacent either. She knows that fairness requires that a judge must be, and must be seen to be, unbiased. She knows that judges, like anybody else, have their weaknesses. She will not shrink from the conclusion, if it can be justified objectively, that things that they have said or done or associations that they have formed may make it difficult for them to judge the case before them impartially.
Then there is the attribute that the observer is 'informed'. It makes the point that, before she takes a balanced approach to any information she is given, she will take the trouble to inform herself on all matters that are relevant. She is the sort of person who takes the trouble to read the text of an article as well as the headlines. She is able to put whatever she has read or seen into its overall social, political or geographical context. She is fair-minded, so she will appreciate that the context forms an important part of the material which she must consider before passing judgment.”
41. In Goby v Wetherill [1915] 2 KB 674, a civil case, the town sergeant, acting as an usher in the county court, had, through what was described as an excess of zeal, retired into the retiring room with the jury and remained there for about 20 minutes whilst they were considering their verdict. The High Court held that the action vitiated the verdict, which could not stand.
42. In R v McNeil [1967] Crim LR 540, a criminal case, two uniformed police officers acting as jury bailiffs had retired with the jury and remained there throughout the time when the verdict was being arrived at, apparently in ignorance of the fact that it was something that they ought not to do. The Court of Appeal allowed an appeal against conviction, holding that the retirement of strangers with the jury during their deliberations was an irregularity which was difficult to cure, even if, as in that case, an assurance had been received from the foreman that the bailiffs had taken no part in the deliberations and had not influenced the members of the jury in their decision.
43. In R v Furlong (1950) Cr App R 79, the Court of Appeal upheld a conviction where the clerk of court had been instructed to go to the jury room and ask them to put a question in writing. The court concluded that it was satisfied that the clerk had not, himself, entered the jury room but:
“Even if he had, we do not think that that would have been in itself an irregularity, because the court always has power to allow somebody to make a communication to the jury, if it is a communication proper to be made, and if it is made by the direction of the court. Everybody knows that the oath that is given to a jury bailiff is that he 'shall suffer no person to speak to them nor speak to them [himself] unless it be to ask whether they are agreed upon a verdict, without leave of the court'.”
44. In the subsequent case of R v Dempster (1980) 71 Cr App R 302, an important part of the evidence was in the form of audio recordings. With the authority of the judge and by consent of counsel, a scheme was devised to enable the jury to hear the tapes in their jury room. The jury were supplied with a loudspeaker in their room which was connected to the recording and transmitting equipment in the courtroom. Anyone from the defence or prosecution could sit in the courtroom and observe the proceedings. The technician in the courtroom who was in charge of the equipment had been sworn as a jury bailiff and when the jury required some part of the tapes to be played, the foreman of the jury would instruct the technician by two-way radio. The court, dismissing the appeal against conviction, concluded that:
“... in the special circumstances of this case what was done was done by order of the court and with the consent of the parties. As matters exist at the moment we do not see what other method could easily, properly and practically have been adopted to overcome the difficulties which obviously existed.”
45. Upon responding to a summons, jury members are sent a leaflet called “Your Guide to Jury Service”. The leaflet explains that jurors' discussions are private and that jurors should not discuss any aspects of the trial with anyone other than fellow jurors. It sets out that the verdict must be that of the jurors alone and reminds jurors that their role is to reach a verdict on the evidence presented in the court room at trial. The leaflet also notes that it is an offence for anyone outside the jury to try and influence them.
46. Once selected for jury duty, jurors must swear an oath or affirmation that they will:
“faithfully try the defendant and give a true verdict according to the evidence.”
47. At the outset of the trial, the jury are conventionally given a direction to the effect that they must try the case on the evidence alone, which is what they hear in court. They are instructed that they must not discuss the case with family, friends or anyone else or conduct their own research into the case.
48. Section 13 of the Juries Act 1974 provides that a trial judge may allow a jury to separate at any time during a trial. Upon allowing the jury to separate the judge will normally re-emphasise that they must not talk about the case to anyone who is not one of their number.
49. Practice Direction (Crown Court: Guidance to Jurors) was issued on 23 February 2004. The practice direction contained the following extract:
“IV.42.6 Trial judges should ensure that the jury is alerted to the need to bring any concerns about fellow jurors to the attention of the judge at the time, and not wait until the case is concluded. At the same time, it is undesirable to encourage inappropriate criticism of fellow jurors, or to threaten jurors with contempt of court.
IV.42.7 Judges should therefore take the opportunity, when warning the jury of the importance of not discussing the case with anyone outside the jury, to add a further warning. It is for the trial judge to tailor the further warning to the case, and to the phraseology used in the usual warning. The effect of the further warning should be that it is the duty of jurors to bring to the judge's attention, promptly, any behaviour among the jurors or by others affecting the jurors, that causes concern. The point should be made that, unless that is done while the case is continuing, it may be impossible to put matters right.”
50. Section 8(1) of the Contempt of Court Act 1981 states that it is a contempt of court to obtain, disclose or solicit any particulars of any statements made, opinions expressed, arguments advanced or votes cast by members of the jury in the course of their deliberations.
51. In R v. Mirza, R v. Connor and Rollock [2004] UKHL 2, the House of Lords considered the implications of Article 6 § 1 of the Convention on the common law rule that the court will not investigate the content of jury deliberations. Subsequently, Lord Carswell summarised the current position in R v. Smith, R v. Mercieca [2005] UKHL 12 (at paragraph 16):
“The principles of the common law relating to inquiry into the verdicts of juries and matters which may affect the propriety of the manner in which they reach their verdicts have been rehearsed in R v Mirza, particularly in paragraphs 94 to 107 of the opinion of Lord Hope of Craighead, and it is unnecessary for me to repeat what their Lordships have said there. It may nevertheless be helpful if I set out in a series of brief propositions how the law stands, prior to considering how a judge should approach a situation such as that encountered in the present case:
(1) The general rule is that the court will not investigate, or receive evidence about, anything said in the course of the jury's deliberations while they are considering their verdict in their retiring room: Ellis v Deheer [1922] 2 KB 113, 117118...; R v Miah [1997] 2 Cr App R 12 at 18...; R v Mirza, paragraph 95...
(2) An exception to the above rule may exist if an allegation is made which tends to show that the jury as a whole declined to deliberate at all, but decided the case by other means such as drawing lots or tossing a coin. Such conduct would be a negation of the function of a jury and a trial whose result was determined in such a manner would not be a trial at all: R v Mirza, paragraph 123...
(3) There is a firm rule that after the verdict has been delivered evidence directed to matters intrinsic to the deliberations of jurors is inadmissible. The House so held in R v Mirza, affirming a line of cases going back to Ellis v Deheer [1922] 2 KB 113 and R v Thompson (1961) 46 Cr App R 72.
(4) The common law has recognised exceptions to the rule, confined to situations where the jury is alleged to have been affected by what are termed extraneous influences, e.g. contact with other persons who may have passed on information which should not have been before the jury: see such cases as R v Blackwell [1995] 2 Cr App R 625 and R v Oke [1997] Crim LR 898.
(5) When complaints have been made during the course of trials of improper behaviour or bias on the part of jurors, judges have on occasion given further instructions to the jury and/or asked them if they feel able to continue with the case and give verdicts in the proper manner. This course should only be taken with the whole jury present and it is an irregularity to question individual jurors in the absence of the others about their ability to bring in a true verdict according to the evidence: R v Orgles [1994] 1 WLR 108.
(6) Section 8(1) of the Contempt of Court Act 1981 is not a bar to the court itself carrying out necessary investigations of such matters as bias or irregularity in the jury's consideration of the case. The members of the House who were in the majority in R v Mirza all expressed the view that if matters of that nature were raised by credible evidence the judge can investigate them and deal with the allegations as the situation may require: see the opinions of Lord Slynn at paragraphs 50-51; Lord Hope of Craighead at paragraphs 92, 112 and 126; Lord Hobhouse of Woodborough at paragraphs 141 and 148; and Lord Rodger of Earlsferry at paragraph 156.”
52. A trial judge has a discretionary power to discharge a jury, before the jury has given its verdict, if he considers it necessary to do so in order to ensure a fair trial (R v. Azam and Others [2006] EWCA Crim 161, at paragraphs 48 and 50).
53. A trial judge also has discretion under section 16 of the Juries Act 1974 to discharge an individual juror for any reason, provided that the discharge of the juror does not result in the total number of jurors falling below nine.
54. Rule 708 of the Code of Conduct for the Bar of England and Wales provides, in so far as relevant, that:
“A barrister when conducting proceedings in Court:
...
j) must not suggest that a victim, witness or other person is guilty of crime, fraud or misconduct or make any defamatory aspersion on the conduct of any other person or attribute to another person the crime or conduct of which his lay client is accused unless such allegations go to a matter in issue (including the credibility of the witness) which is material to the lay client's case and appear to him to be supported by reasonable grounds.”
NON_VIOLATED_ARTICLES: 6
NON_VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-57854
LANGUAGEISOCODE: ENG
RESPONDENT: AUT
BRANCH: CHAMBER
DATE: 1993
DOCNAME: CASE OF INFORMATIONSVEREIN LENTIA AND OTHERS v. AUSTRIA
IMPORTANCE: 2
CONCLUSION: Violation of Art. 10;Not necessary to examine Art. 14+10;Pecuniary damage - claim dismissed;Costs and expenses partial award - domestic proceedings;Costs and expenses partial award - Convention proceedings
TEXT: 8. The first applicant, an association of co-proprietors and residents of a housing development in Linz, comprising 458 apartments and 30 businesses, proposed to improve the communication between its members by setting up an internal cable television network. The programmes were to be confined to questions of mutual interest concerning members’ rights.
9. On 9 June 1978 the first applicant applied for an operating licence under the Telecommunications Law (Fernmeldegesetz, see paragraph 17 below). As the Linz Regional Post and Telecommunications Head Office (Post- und Telegraphendirektion) had not replied within the six-month time-limit laid down in Article 73 of the Code of Administrative Procedure (Allgemeines Verwaltungsverfahrensgesetz), the association applied to the National Head Office (Generaldirektion für die Post- und Telegraphenverwaltung), attached to the Federal Ministry of Transport (Bundesministerium für Verkehr).
The National Head Office rejected the application on 23 November 1979. In its view, Article 1 para. 2 of the Constitutional Law guaranteeing the independence of broadcasting (Bundesverfassungsgesetz über die Sicherung der Unabhängigkeit des Rundfunks, "the Constitutional Broadcasting Law", see paragraph 19 below) had vested in the federal legislature exclusive authority to regulate this activity; it had exercised that authority only once, by enacting the Law on the Austrian Broadcasting Corporation (Bundesgesetz über die Aufgaben und die Einrichtung des Österreichischen Rundfunks, see paragraph 20 below). It followed that no other person could apply for such licence as any application would lack a legal basis. Furthermore there had been no violation of Article 10 (art. 10) of the Convention since the legislature - in its capacity as a maker of constitutional laws (Verfassungsgesetzgeber) - had merely availed itself of its power to set up a system of licences in accordance with the third sentence of paragraph 1 (art. 10-1).
10. Thereupon the first applicant complained to the Constitutional Court of a breach of Article 10 (art. 10); the court gave judgment on 16 December 1983.
It took the view that the freedom to set up and operate radio and television broadcasting stations was subject to the powers accorded to the legislature under paragraph 1 in fine and paragraph 2 of Article 10 (art. 10-1, art. 10-2) (Gesetzesvorbehalt). Accordingly, an administrative decision could infringe that provision only if it proved to have no legal basis, or its legal basis was unconstitutional or again had been applied in an arbitrary manner (in denkunmöglicher Weise an[ge]wendet). In addition, the Constitutional Broadcasting Law had instituted a system which made all activity of this type subject to the grant of a licence (Konzession) by the federal legislature. This system was intended to ensure objectivity and diversity of opinions (Meinungsvielfalt), and would be ineffective if it were possible for everybody to obtain the requisite authorisation. As matters stood, the right to broadcast was restricted to the Austrian Broadcasting Corporation (Österreichischer Rundfunk, ORF), as no implementing legislation had been enacted in addition to the law governing that organisation.
Contrary to its assertions, the first applicant had in fact intended to broadcast within the meaning of the constitutional law, because its programmes were to be directed at a general audience of variable composition. The broadcasting law therefore provided a legal basis for the decision in issue.
Consequently, the Constitutional Court rejected the complaint and remitted it to the Administrative Court.
11. On 10 September 1986 the Administrative Court in substance adopted the grounds relied on by the Constitutional Court and in its turn dismissed the first applicant’s claim.
12. From 1987 to 1989 the second applicant elaborated a project for the setting up, with other persons, of a private radio station in Carinthia. He subsequently gave up the idea after a study had shown him that according to the applicable law as interpreted by the Constitutional Court he would not be able to obtain the necessary licence. As a result he never applied for one.
13. The third applicant, an Austrian association and a member of the Fédération européenne des radios libres (FERL - European Federation of Free Radios), plans to establish a radio station in southern Carinthia in order to broadcast, in German and Slovene, non-commercial radio programmes, whose makers already operate an authorised mobile radio station in Italy.
14. In 1988 AGORA applied for a licence. Its application was refused by the Klagenfurt Regional Post and Telecommunications Head Office on 19 December 1989 and by the National Head Office in Vienna on 9 August 1990. On 30 September 1991, on the basis of its own case-law (see paragraph 10 above), the Constitutional Court dismissed an appeal from that decision.
15. The fourth applicant is a shareholder of an Italian company operating a commercial radio which broadcasts to Austria and he wishes to carry out the same activity in that country. However, in view of the legislation in force, he decided not to make any application to the appropriate authorities.
16. The fifth applicant is a private limited company incorporated under Austrian law. On 8 November 1988 it asked the Linz Regional Post and Telecommunications Head Office to allocate it a frequency so that it could operate a local radio station which it hoped to launch in Salzburg. On 28 April 1989 its application was rejected, a decision confirmed on 12 July 1989 by the National Head Office and on 18 June 1990 by the Constitutional Court, which based its decision on its judgment of 16 December 1983 (see paragraph 10 above).
17. According to the Telecommunications Law of 13 July 1949, "the right to set up and operate telecommunications installations (Fernmeldeanlagen) is vested exclusively in the federal authorities (Bund)" (Article 2 para. 1). The latter may however confer on natural or legal persons the power to exercise that right in respect of specific installations (Article 3 para. 1). No licence is required in certain circumstances, including the setting up of an installation within the confines of a private property (Article 5).
18. The Ministerial Ordinance of 18 September 1961 concerning private telecommunications installations lays down inter alia the conditions for setting up and operating private telecommunications installations subject to federal supervision. According to the case-law, it cannot however constitute the legal basis for the grant of licences.
19. According to Article 1 of the Constitutional Law of 10 July 1974 guaranteeing the independence of broadcasting,
"...
2. Broadcasting shall be governed by more detailed rules to be set out in a federal law. Such a law must inter alia contain provisions guaranteeing the objectivity and impartiality of reporting, the diversity of opinions,balanced programming and the independence of persons and bodies responsible for carrying out the duties defined in paragraph 1.
3. Broadcasting within the meaning of paragraph 1 shall be a public service."
20. The Law of 10 July 1974 on the National Broadcasting Corporation established the Austrian Broadcasting Corporation with the status of an autonomous public-law corporation.
It is under a duty to provide comprehensive news coverage of major political, economic, cultural and sporting events; to this end, it has to broadcast, in compliance with the requirements of objectivity and diversity of views, in particular current affairs, news reports, commentaries and critical opinions (Article 2 para. 1 (1)), and to do so via at least two television channels and three radio stations, one of which must be a regional station (Article 3). Broadcasting time must be allocated to the political parties represented in the national parliament and to representative associations (Article 5 para. 1).
A supervisory board (Kommission zur Wahrung des Rundfunkgesetzes) rules on all disputes concerning the application of the above-mentioned law which fall outside the jurisdiction of an administrative authority or court (Articles 25 and 27). It is composed of seventeen independent members, including nine judges, appointed for terms of four years by the President of the Republic on the proposal of the Federal Government.
21. On 8 July 1992 the Administrative Court decided that the Constitutional Law of 10 July 1974 (see paragraph 19 above) did not cover "passive" broadcasting via cable, in other words the broadcasting in their entirety by cable of programmes picked up by an aerial. Consequently, the mere fact that such programmes originated from a foreign station and were directed principally or exclusively at an Austrian audience could not constitute grounds for refusing the licence necessary for this type of operation.
22. On 1 January 1994 a Law on regional radio stations is to enter into force (Regionalradiogesetz, Official Gazette (Bundesgesetzblatt) no. 1993/506). It will allow the authorities under certain conditions to grant private individuals or private corporations licences to set up and operate regional radio stations.
VIOLATED_ARTICLES: 10