ITEMID: 001-57716
LANGUAGEISOCODE: ENG
RESPONDENT: AUT
BRANCH: CHAMBER
DATE: 1991
DOCNAME: CASE OF OBERSCHLICK v. AUSTRIA
IMPORTANCE: 2
CONCLUSION: Preliminary objection rejected (six month period);Violation of Art. 6-1;Violation of Art. 10;Pecuniary damage - financial award;Non-pecuniary damage - finding of violation sufficient;Costs and expenses award - domestic proceedings;Costs and expenses award - Convention proceedings
JUDGES: C. Russo;N. Valticos
TEXT: 10. Mr Oberschlick, an Austrian journalist residing in Vienna, was at the relevant time the editor of the review Forum.
11. On 29 March 1983 - during the parliamentary election campaign - it was reported in a television programme that Mr Walter Grabher-Meyer, then Secretary General of one of the political parties which participated in the governing coalition, the Austrian Liberal Party (FPÖ), had suggested that the family allowances for Austrian women should be increased by 50% in order to obviate their seeking abortions for financial reasons, whilst those paid to immigrant mothers should be reduced to 50% of their current levels. He had justified his statement by saying that immigrant families were placed in a discriminatory position in other European countries as well.
12. On 20 April 1983 the applicant and several other persons laid a criminal information (Strafanzeige) against Mr Grabher-Meyer. However, the Vienna public prosecutor’s office decided on 1 June 1983 not to prosecute him.
13. On the day it was laid, the full text of the criminal information was published by the applicant in Forum. The cover page of the relevant issue contained a summary of its contents, including the title : "Criminal information against the Liberal Party Secretary General (Strafanzeige gegen FPÖ-Generalsekretär)". The following text appeared at page 9:
(Translation)
"CRIMINAL INFORMATION against WALTER GRABHER-MEYER
Date of birth unknown, occupation: Secretary General, c/o FPÖ (Liberal Party), Federal Central Office, Kärntnerstrasse 28, 1010 Vienna
ON SUSPICION OF
1. the misdemeanour (Vergehen) of incitement to hatred, contrary to Article 283 of the Criminal Code,
2. the misdemeanour (Vergehen) of incitement to commit criminal offences and expressing approval of criminal offences, contrary to Article 282 of the Criminal Code, and
3. the offence (Verbrechen) of activities within the meaning of sections 3 and 3d of the Constitutional Law of 8 May 1945 (StGBl. no. 13) on the prohibition of the National Socialist Party (NSDAP) ("Prohibition Act").
THE FACTS
‘The Secretary General of the Liberal Party, Mr Walter Grabher-Meyer today proposed raising family allowances for Austrian women by 50%, the aim of this measure being to deter Austrian women from having abortions for financial reasons. At the same time Walter Grabher-Meyer demanded that family allowances from the Austrian State for mothers of migrant workers’ families (Gastarbeitermütter) should be reduced to half the present level. Grabher-Meyer stated that migrant worker families are placed in a less favourable position in other European countries too.’
ORF (Austrian Broadcasting Corporation), Television programmes 1 + 2 Late News 29.3.1983
Count 1:
Walter Grabher-Meyer’s public statement was made in a way which offends human dignity and is directed against a group of persons defined by their membership of a people, ethnic group or State; in the present case, by the fact that they do not have Austrian citizenship.
The contrasting treatment of Austrian women, who are to be spared the need for abortions by being placed in a better financial position, and mothers of migrant workers’ families who are not only not to be treated in the same way, but who are moreover, according to Walter Grabher-Meyer’s suggestion, to have their family allowances halved (allowances which in his opinion are too low to prevent abortion for financial reasons), gives the impression, which must in all likelihood have been intended by him, that mothers of migrant workers’ families and their unborn children are an inferior, worthless or less valuable sector of the population as a whole, and that it is in the interests of the Austrian people for such mothers to have abortions.
Walter Grabher-Meyer has thereby presented migrant workers as being undeserving or unworthy of the respect of their fellow human beings; the authors of this information regard this as a tendentious incitement to hatred of and contempt for migrant workers in Austria, object thereto and lay this information.
Count 2:
Walter Grabher-Meyer is publicly proposing - and thereby calling in particular on the Austrian Parliament and the Federal Government to introduce - measures which constitute the substance of the offence of activities within the meaning of sections 3 and 3d of the Prohibition Act (see below).
Count 3:
Under section 3 of the Prohibition Act, activities of any sort on behalf of the NSDAP or its aims are prohibited, even if such activities are carried out outside that organisation.
Section 3d of the Prohibition Act says that "A person who in public or in the presence of several persons ... instigates, incites or seeks to induce conduct prohibited by section 1 or section 3, in particular any person who for this purpose glorifies or extols the aims, organs or actions of the NSDAP, shall, unless a more serious offence appears therein, be punished by a term of imprisonment of from 10 to 20 years and confiscation of his entire property".
The authors of this information refer in this connection to the 25 points of the NSDAP Manifesto of 24.2.1920. They note that, until the passing of the NSDAP Prohibition Act of 8 May 1945 by the Provisional Government, this manifesto remained the party’s sole programme and that it therefore contains in authentic and complete form the aims of the NSDAP’s programme. It says inter alia that:
‘5. A person who does not have German nationality is to be able to live in Germany only as a visitor and must be subject to aliens legislation.
7. We demand that the State undertake, first and foremost, to provide opportunities for employment and the subsistence of its citizens. If it is not possible to feed the entire population of the State, citizens of foreign nations (non-citizens) must be expelled from the Reich.
8. All further immigration of non-Germans is to be prevented. We demand that all non-Germans who have immigrated to Germany since 2 August 1914 be compelled to leave the Reich immediately.’
Creating a hostile attitude to citizens of foreign nations (non-citizens), and placing them in a less favourable position, to such an extent that it became difficult for them to live in the Reich and they were forced to leave, were essential aims of the NSDAP and its policy.
Walter Grabher-Meyer’s proposal to increase family allowances for Austrian women by 50% in order to stop them having abortions for financial reasons, and at the same time to reduce family allowances for mothers of migrant workers’ families to half the present level, represents a cynical means of driving citizens of foreign nations out of the Republic of Austria and indeed forcing those who stay in the Republic of Austria to have abortions; being entirely consistent with and corresponding to the philosophy and aims of the NSDAP that ‘the State must first and foremost provide opportunities for employment and the subsistence of its citizens’, these proposals are aimed, amongst other things, at improving the living conditions of citizens (Austrian mothers) by worsening those of migrant workers and, at the same time, at preventing all further immigration of non-Austrians (see above, NSDAP points 7 and 8).
From this it is apparent that Walter Grabher-Meyer has undertaken activities which correspond to the aims of the NSDAP, or at the very least has extolled its measures against citizens of foreign nations by proposing that such measures be applied in Austria.
As to the accuracy of these allegations, the authors of this information rely on their own statements, the ORF newsreaders’ scripts for the Late News on television programmes 1 and 2 on 29.3.1983 and the NSDAP manifesto of 24.2.1920.
This criminal information is therefore laid against Walter Grabher-Meyer etc.
(Signed):..., Gerhard Oberschlick"
14. On 22 April 1983 Mr Grabher-Meyer brought a private prosecution for defamation (üble Nachrede, Article 111 of the Criminal Code - see paragraph 25 below) against the applicant and the other signatories of the criminal information. He also sought the immediate seizure of the relevant issue of Forum (sections 33 and 36 of the Media Act - Mediengesetz) and compensation from its owners (section 6 of the Media Act - see paragraph 26 below).
15. The Review Chamber (Ratskammer) of the Vienna Regional Criminal Court (Landesgericht für Strafsachen - "the Regional Court") decided on the same day to order the discontinuance of the proceedings under Article 485 para. 1 (4) of the Code of Criminal Procedure (see paragraph 28 below). It found that the publication did not constitute the criminal offence defined in Article 111 of the Criminal Code, since the case did not concern the wrongful attribution of a certain (dishonest) behaviour, but only value-judgments (Bewertung) on behaviour which, as such, had been correctly described.
16. On appeal by Mr Grabher-Meyer the Vienna Court of Appeal (Oberlandesgericht), composed of Mr Cortella, as President, and Mr Schmidt and Mr Hagen, quashed the above decision on 31 May 1983. It held that for the average reader the publication must have created the impression that a contemptible attitude (verächtliche Gesinnung) was ascribed to Mr Grabher-Meyer. The authors had disregarded the standards of fair journalism by going beyond a comparative and critical analysis of his statements and insinuating motives which he had not himself expressed, in particular by alleging that he had been guided by National Socialist attitudes. Accordingly, the case was referred back to the Regional Court.
17. On 20 July 1983 the defamation proceedings against the signatories of the criminal information other than Mr Oberschlick were severed from the main proceedings by the Regional Court and referred for decision to the Vienna District Court for Criminal Matters (Strafbezirksgericht), on the ground that those persons had not been associated with the publication in Forum. On 9 April 1984 the former proceedings were discontinued.
18. On 25 July 1983 the Regional Court ordered the publication in Forum of information about the defamation proceedings against the applicant (section 37 of the Media Act - see paragraph 26 below). This decision was confirmed by the Court of Appeal on 7 September 1983.
19. The Regional Court held a hearing on 11 May 1984, during which it heard evidence from Mr Grabher-Meyer and the applicant.
The latter offered evidence that what he had written was true (Wahrheitsbeweis), claiming that in this respect it was sufficient to establish that a criminal information had actually been laid in the terms published in Forum. He argued that by reporting his suspicions he had been fulfilling a legal duty and that he was therefore exculpated under Article 114 of the Criminal Code (see paragraph 25 below). The fact that the legal qualification of Mr Grabher-Meyer’s statements might have been erroneous could not be held against him because he was not a lawyer.
20. On the same day the applicant was convicted of defamation (Article 111 paras.1 and 2) and sentenced to a fine of 4,000 Austrian schillings or, in default, to 25 days’ imprisonment. The Regional Court also made the following orders against the owners (Medieninhaber) of Forum - the Association of Editors and Employees of Forum (Verein der Redakteure und Angestellten des Forum): the seizure of the relevant issue of Forum, the publication of its judgment (sections 33 and 34 of the Media Act), and the award to Mr Grabher-Meyer of compensation of 5,000 schillings (section 6 of the Media Act). In addition, they were declared to be jointly and severally liable for the payment of the fine (section 35 para. 1 of the Media Act - see paragraph 26 below).
In its judgment of 11 May 1984, the Regional Court held that it was bound by the opinion expressed by the Court of Appeal in its decision of 31 May 1983 (see paragraph 16 above). Therefore the objective conditions for the offence of defamation were satisfied.
Mr Oberschlick also fulfilled the subjective requirements because he had acknowledged that he had intended to draw attention to what, in his opinion, was the National Socialist way of thinking of Mr Grabher-Meyer. Mr Oberschlick had, however, not established the truth of his allegations nor justified them. In the Regional Court’s view, it was not sufficient that this politician had made the criticised statements and that a criminal information regarding it had been laid in the terms published in Forum. The statements in question did not necessarily show the intentions Mr Oberschlick had inferred therefrom. It could also be understood as a proposal to reallocate the notoriously limited resources of the Family Compensation Fund in favour of Austrians in order to stem the influx of migrant workers. This admittedly revealed a xenophobic way of thinking, but did not yet amount to a National Socialist attitude or to a criminal offence.
The fact that the publication involved only a reprint of the criminal information did not exculpate the applicant. Whilst everyone was free to report to the police facts which he considered constituted a criminal offence, it went far beyond the mere reporting of a criminal suspicion to publish the text of the information in a periodical and thus to make it accessible to the general public. There was no justification for doing so. In this respect, the applicant could not invoke a legal duty under Article 114 of the Criminal Code, namely to draw the public’s attention to the (allegedly) Nazi mentality of a high-ranking official of a governing party. That allegation came under the general rule that a person who had made an attack of this kind through the media had to prove that it was true.
21. Mr Oberschlick subsequently requested on several occasions to be supplied with a copy of the record of the hearing, but without success. It seems that it was not until after the communication of the written judgment on 24 August 1984 that the record reached the applicant. On 6 September he applied for a rectification of the trial record which, according to him, failed to mention certain statements by Mr Grabher-Meyer which were of importance for assessing the evidence concerning the truth of the applicant’s allegations. He had allegedly stated at the trial, inter alia, that he was opposed to excessive immigration of foreigners (Überfremdung) and that for tactical reasons he approved the "stop foreigners" campaign ("Ausländer Halt") which had been conducted by a right-wing political party and had subsequently been prohibited. He had also allegedly admitted having considered social-policy measures directed against the children of foreign workers in Austrian schools.
On 4 October 1984 the Regional Court rejected this application, after having consulted the transcriber, on the ground that after five months the judge had no recollection of the detailed statements. It nevertheless pointed out that although the latter did not appear in the transcriber’s notes, similar statements did.
22. On 17 December 1984 the Vienna Court of Appeal, composed of the same judges and again presided over by Mr Cortella (see paragraph 16 above), dismissed the applicant’s appeal (Berufung).
In relation to a complaint concerning the Regional Court’s decision of 4 October 1984 (see paragraph 21 above), the Court of Appeal observed that this decision was final. Furthermore, it did not appear that the Regional Court had failed to determine any requests made during the trial concerning the record. In any event, the statements in question were irrelevant for the judgment on the merits of the matter.
23. The Court of Appeal then dealt with the substantive issues. In its view, the Regional Court had not been legally bound by the Court of Appeal’s earlier decision concerning the qualification of the offence. The Court of Appeal, however, saw no reason to depart from that decision. What was decisive was that Mr Grabher-Meyer was alleged to have had motives which he himself had not expressed. The case therefore did not concern the (possibly incorrect) legal qualification of his statements, but allegations putting a stain on his character which objectively could not be inferred from those statements.
According to the Court of Appeal, the Regional Court had rightly held that what had to be proved was the truth of the critical inferences as to Mr Grabher-Meyer’s character made in the article and had rightly found that the applicant had failed to bring this proof. The fact that a short report on the criminal information against this politician would not have been punishable did not justify the conclusion that a full reprint of it was not punishable either. The publication in the form of a criminal information was intended to ensure that the accusation as to his character made therein would have a particularly telling effect on the average reader. Neither the right to report a criminal suspicion (Article 86 para. 1 of the Code of Criminal Procedure - see paragraph 27 below) nor the exception provided for in Article 114 para. 2 of the Criminal Code (see paragraph 25 below) justified the publication because it was not appropriate (mangels Anlassadäquanz): it had been insinuated, without a sufficient basis in the facts, that Mr Grabher-Meyer held National Socialist attitudes.
24. The written text of the judgment was served upon the applicant on 7 January 1985.
On 25 September 1985 he requested the Attorney-General (Generalprokurator) to file a plea of nullity for the preservation of the law (Nichtigkeitsbeschwerde zur Wahrung des Gesetzes), but he was informed on 9 January 1986 that the Attorney-General did not intend to take any action.
25. Article 111 of the Criminal Code provides:
"1. Anyone who in such a way that it may be perceived by a third person accuses another of possessing a contemptible character or attitude or of behaviour contrary to honour or morality and of such a nature as to make him contemptible or otherwise lower him in public esteem shall be liable to imprisonment not exceeding six months or a fine ...
2. Anyone who commits this offence in a printed document, by broadcasting or otherwise in such a way as to make the defamation accessible to a broad section of the public shall be liable to imprisonment not exceeding one year or a fine ...
3. The person making the statement shall not be punished if it is proved to be true. As regards the offence defined in paragraph 1, he shall also not be liable if circumstances are established which gave him sufficient reason to assume that the statement was true."
Under Article 112, "evidence of the truth and of good faith shall not be admissible unless the person making the statement pleads the correctness of the statement or his good faith ...".
Under Article 114 para. 1 "conduct of the kind mentioned in Article 111 ... is justified if it constitutes the fulfilment of a legal duty or the exercise of a right". Under paragraph 2 of the same provision "a person who is forced for special reasons to make an allegation within the meaning of Article 111 ... in the particular form and manner in which it was made, is not to be punished, unless that allegation is untrue and the offender could have been aware thereof if he had acted with the necessary care".
26. Section 6 of the Media Act provides for the strict liability of the publisher in cases of defamation; the victim can thus claim compensation from him. Furthermore, the publisher may be declared to be liable jointly and severally with the person convicted of a media offence for the fines imposed and for the costs of the proceedings (section 35).
The person defamed may request the forfeiture of the publication by which a media offence has been committed (section 33). Under section 36 he may also request the immediate seizure of such a publication if section 33 is likely to be applied subsequently, unless the adverse consequences of seizure would be disproportionate to the legal interest to be protected by this measure. Seizure shall not be ordered if that interest can instead be protected by the publication of information that criminal proceedings have been instituted (section 37). Finally, the victim may request the publication of the judgment in so far as this appears necessary for the information of the public (section 34).
27. The first sentence of Article 86 para. 1 of the Code of Criminal Procedure reads as follows:
"Anybody who acquires knowledge of criminal conduct such as automatically attracts public prosecution shall have the right to report it."
Furthermore, section 3 (g) para. 2 of the Prohibition Act imposes a duty to denounce offences under this Act in certain circumstances. Failure to fulfil this duty may be punished by imprisonment for between five and ten years.
28. Under the special simplified procedure - which was followed in this instance -, if a single judge of the Regional Court is of the opinion that the facts of the case do not constitute a criminal offence, he shall seek a decision by the Review Chamber of the Regional Court (Article 485 para. 1 (4) of the Code of Criminal Procedure), which shall order the discontinuance of the proceedings if it shares his view (Article 486 para. 3). The prosecution may appeal against such an order (Article 486 para. 4). If the Court of Appeal upholds the appeal and refers the case back to the Regional Court, the following special rules apply:
"The trial court shall not be bound by decisions of the Review Chamber or of the court of second instance which confirm ... that the facts constitute a criminal offence ..."
"Those members of the court of second instance who participated at a previous stage in the decision of the Review Chamber to discontinue the proceedings or in the determination of an appeal against such a decision (Article 486) shall be disqualified from hearing or determining an appeal."
29. Disqualification of a judge (Ausschliessung) is governed by the following provisions of the Code of Criminal Procedure:
"A judge is obliged to bring circumstances which disqualify him to the immediate attention of the president of the court of which he is a member ..."
"From the moment when grounds for his disqualification come to his knowledge, every judicial officer (Gerichtsperson) shall refrain from any judicial acts, on pain of nullity. The judicial officer concerned may carry out judicial acts which are urgent, but only where there is danger in delay and if another judge or registrar cannot be appointed immediately. ..."
30. Furthermore, under Article 72 the parties to the proceedings may challenge (ablehnen) a judge if they can show that there are reasons for doubting his complete impartiality. Although Article 72 refers expressly to grounds "other than disqualification", it is the practice of the courts to apply Article 72 also in cases where a party raises an issue relating to a judge’s disqualification. In fact, the disqualification of a first-instance judge cannot subsequently be pleaded in nullity proceedings unless he was challenged before or at the trial or immediately after the ground for disqualification became known to the party (Article 281 para. 1 (1) of the Code of Criminal Procedure). The procedure applicable in this respect is the following:
"Where a party seeks to challenge a judge, he may make an application in writing to the court of which the judge is a member or make an oral declaration to this effect before the registrar. He may do this at any time, except that, where the challenge concerns a member of the trial court, it must be made not later than 24 hours before the beginning of the hearing and, where it is directed against the whole court, not later than three days after service of the summons to attend the hearing. The application must specify and, as far as possible, justify the reasons for the challenge."
"(1) As a rule it is for the president of the court of which the challenged judicial officer is a member to decide on the admissibility of the challenge.
(2) ...
(3) No appeal lies against such a decision ..."
31. Records of hearings before criminal courts in Austria are usually drawn up in summary form unless, for special reasons, the court orders the preparation of a shorthand transcript. A shorthand transcript must be prepared if this is requested by a party who advances the costs thereof (Article 271 para. 4).
In other cases the record is limited to a note of all essential formalities of the proceedings. The parties are free to request the recording of specific points in order to preserve their rights (Article 271 para. 1, applicable to single-judge proceedings by virtue of Article 488).
32. Where the establishment of a verbatim version is important, the judge shall, upon the request of a party, order that particular passages be read out at once (Article 271 para. 2).
The answers of the defendant and the depositions of the witnesses and experts shall be mentioned only if they contain deviations from, alterations of or additions to the statements recorded in the files or if the witnesses or experts are heard for the first time at the trial (Article 271 para. 3).
33. The parties are free to inspect the completed record and its appendices and to make copies thereof (Article 271 para. 5). Case-law has established that they are entitled to request additions or corrections to the record at the trial or afterwards, as long as an appeal is pending (Evidenzblatt, "EvBl", 1948, p. 32 and Sammlungstrafsachen, 32/108). The court’s decision on such a request is final and is not open to appeal (Richterzeitung, 1967, p. 88, EvBl. 1948/243).
It is only total failure to prepare a trial record that is a ground of nullity (Article 281 para. 1 (3)). Other deficiencies in the record cannot be pleaded in nullity proceedings, except failure to decide on motions concerning the record which were made during the trial (Article 281 para. 1 (4)).
VIOLATED_ARTICLES: 10
6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-98128
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: CHAMBER
DATE: 2010
DOCNAME: CASE OF SINICHKIN v. RUSSIA
IMPORTANCE: 3
CONCLUSION: Remainder inadmissible;Violation of Art. 6-1+6-3-c
JUDGES: Anatoly Kovler;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;George Nicolaou;Giorgio Malinverni;Sverre Erik Jebens
TEXT: 5. The applicant was born in 1970 and is serving a prison sentence in correctional colony YuK-25/8 in the Orenburg Region.
6. On 24 June 2002 the applicant was arrested on suspicion of aggravated concerted robbery and taken to the Leninskiy District police station of the Orsk town police department. He refused legal assistance, signed a record confirming his refusal and denied the accusations made. He was released on the same day.
7. On 22 July 2002 the applicant was again remanded in custody. He was charged with aggravated robbery and questioned after he had refused legal assistance. Police officers allegedly threatened and humiliated him with a view to extracting a confession from him. The applicant did not confess. Two days later he was released on a written undertaking not to leave the town.
8. On 23 July 2002 the local bar association appointed counsel M. to represent the applicant in the criminal proceedings. It appears that M. was appointed to represent the applicant as legal-aid counsel.
9. On 31 October 2002 the Leninskiy District Court of Orsk started examining the applicant's criminal case. On the same day the applicant lodged a written request with the trial court, by which he declined the services of M. and sought leave to represent himself. He explained that it was a voluntary decision and had not been caused by financial difficulties. M. submitted to the court that he agreed with the applicant's request. Having discussed the issue, the court allowed the applicant's request and granted him leave to represent himself.
10. By a judgment of 10 November 2002, the District Court found the applicant guilty as charged and sentenced him to thirteen years' imprisonment. It established that the applicant, together with his two co-defendants, had attacked, robbed and severely beaten up the victim. The applicant's role, previously agreed upon by the co-defendants, consisted, among other things, in threatening the victim with a knife. The court based its findings on partial confessions by the applicant's co-defendants, statements by victims and witnesses and material evidence. It was finally stated in the judgment that it could be appealed against to the Orenburg Regional Court within ten days of its pronouncement or, for the detained defendants, within the same period after receipt of its copy. It was also stated that if the remanded convicts were submitting an appeal statement, they had a “right to request to participate in the examination of the criminal case by the appellate court”.
11. On 21 November 2002 the applicant appealed against his conviction to the Orenburg Regional Court (“the Regional Court”). He did not dispute that he had taken the money from the victim but disagreed with the way the trial court had established the relevant facts, the distribution of roles between him and his co-defendants and the classification of his own acts. He submitted, in particular, that the trial court had disregarded his testimony and statements by witnesses which supported it, in particular, regarding the trial court's findings about the distribution of responsibility between him and his co-defendants and the classification of his acts as a premeditated robbery. In his appeal statement the applicant neither requested the Regional Court to secure his presence at the appeal hearing nor sought legal representation. According to the Government, the applicant's co-defendants who also appealed against the conviction expressly requested the appellate court to secure their presence at the appeal hearing.
12. According to the Government, on 25 November 2002 a notification about the appeal hearing was sent to the remand centre where the applicant was being held.
13. On 19 December 2002 the Regional Court examined the appeals lodged by the applicant and his co-defendants and upheld the judgment. The applicant was absent from the appeal hearing and was not represented before it, while his co-defendants, as well as the prosecutor, attended the hearing and made submissions.
14. By a judgment of 19 December 2002, the Regional Court dismissed the applicant's appeal and upheld the conviction.
15. Under Article 360 of the Code of Criminal Procedure, which entered into force on 1 July 2002 (“the CCP”), the appeal court verifies the legality, validity and fairness of the judgment of the trial court only to the extent to which it has been complained against and only in respect of those convicted who are concerned by the appeal. The appeal court is empowered to reduce the sentence imposed on the convicted person or to apply the law of a lesser offence. It has no power to impose a more severe penalty, apply a law on a more serious offence or quash an acquittal, unless it considers that the conviction was unfair or that the interests of the parties to the proceedings were violated.
16. A conviction is deemed unfair if the sentence imposed is inconsistent with the seriousness of the offence, the personality of the convicted person, or if that sentence, although within the limits of the relevant Article of the Criminal Code, is unfair in its chosen type or extent, being either disproportionately lenient or disproportionately severe A conviction may be reversed when it is necessary to impose a more severe penalty where the penalty imposed by the trial court is deemed unfair as being disproportionately lenient - only when it is requested by the pubic prosecutor, the victim or the private prosecution (Article 383).
17. Under Article 377 §§ 4 and 5 of the CCP, the appeal instance may directly examine evidence, including additional material submitted by parties.
18. Under Article 375 § 2, if a convicted person wishes to participate in an appeal hearing he or she should indicate that wish in the statement of appeal.
19. Article 376 of the Code provides that upon receipt of the criminal case and the statements of appeal, the judge fixes the date, time and place for a hearing. The parties shall be notified of the date, time and place of the hearing no later than fourteen days before the scheduled hearing. The court determines whether the remanded convict should be summoned to the hearing. If the remanded convict has expressed the wish to be present at the examination of his appeal, he has the right to participate in person or to state his case via video link. The manner of his participation in the hearing is to be determined by the court. A defendant who has appeared before the court shall always be entitled to take part in the hearing. The failure of persons timely notified about the date, time and venue of the hearing to appear does not preclude the court from taking on the examination of the case.
20. Under Article 377, the presiding judge opens the hearing by announcing which criminal case is to be examined and on whose appeal. He then announces the composition of the court, the names of persons who are parties to the proceedings and are present at the hearing and hears the statements of those who had lodged the appeals and of the opposing parties. The appeal court is entitled, at the party's request, to directly examine evidence and additional materials provided by the parties to support or disprove the arguments cited in the statement of appeal or in the statements of the opposing party.
21. The CCP provides as follows:
“1. Participation of legal counsel in the criminal proceedings is mandatory if:
1) the suspect or the accused has not waived legal representation in accordance with Article 52 of this Code;
2) the suspect or the accused is a minor;
3) the suspect or the accused cannot exercise his right of defence by himself owing to a physical or mental handicap;
3.1) the court proceedings are to be conducted [in the absence of the accused] in accordance with Article 247 § 5 of this Code;
4) the suspect or the accused does not speak the language in which the proceedings are conducted;
5) the suspect or the accused faces serious charges carrying a term of imprisonment exceeding fifteen years, life imprisonment or the death penalty;
6) the criminal case falls to be examined by a jury trial;
7) the accused has filed a request for the proceedings to be conducted [without a hearing] under Chapter 40 of this Code;
2. ...
3. In the circumstances provided for by paragraph 1 above, unless counsel is retained by the suspect or the accused, or his lawful representative, or other persons on request, or with consent, of the suspect or the accused, it is incumbent on the investigator, prosecutor or the court to ensure participation of legal counsel in the proceedings.”
“1. The suspect or the accused may refuse legal assistance at any stage of criminal proceedings. Such a waiver may only be accepted if made on the own initiative of the suspect or the accused. The waiver must be filed in writing and must be recorded in the official minutes of the relevant procedural act.
...”
22. Examining the compatibility of Article 51 of the Code of Criminal Procedure with the Constitution, the Constitutional Court ruled as follows (decision no. 497-O of 18 December 2003):
“Article 51 § 1 of the Code of Criminal Procedure, which describes the circumstances in which the participation of defence counsel is mandatory, does not contain any indication that its requirements are not applicable in appeal proceedings or that the convict's right to legal assistance in such proceedings may be restricted.”
23. That position was subsequently confirmed and developed in seven decisions delivered by the Constitutional Court on 8 February 2007. It found that free legal assistance for the purpose of appellate proceedings should be provided on the same conditions as during the earlier stages in the proceedings and is mandatory in situations listed in Article 51. It further underlined the obligation of courts to secure participation of defence counsel in appeal proceedings.
24. In a number of cases (decisions of 13 October 2004 and 26 January, 6 April, 15 June and 21 December 2005) the Presidium of the Supreme Court of the Russian Federation quashed judgments of appeal courts and remitted cases for fresh consideration on the ground that the courts had failed to secure the presence of defence counsel in the appeal proceedings, although it was obligatory for the accused to be legally represented.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1
6-3
VIOLATED_BULLETPOINTS: 6-3-c


ITEMID: 001-92525
LANGUAGEISOCODE: ENG
RESPONDENT: CHE
BRANCH: CHAMBER
DATE: 2009
DOCNAME: CASE OF GLOR v. SWITZERLAND
IMPORTANCE: 1
CONCLUSION: Remainder inadmissible;Violation of Art. 14+8
JUDGES: Anatoly Kovler;Elisabeth Steiner;George Nicolaou;Giorgio Malinverni;Khanlar Hajiyev;Sverre Erik Jebens
TEXT: 10. The applicant was born in 1978 and lives in Dällikon (Canton of Zürich). By his own account, he is a lorry driver.
11. On 14 March 1997 a military doctor declared him unfit for military service as he was suffering from type 1 diabetes (diabetes mellitus).
12. On 22 February 1999 the applicant was also exempted from the civil protection service.
13. On 8 September 2000 that exemption was lifted and in October that year the applicant was assigned to the Dübendorf Civil Protection Reserve in the Canton of Zürich. According to the Government, it is unclear from the file whether the applicant was given any tasks to carry out in a civil protection capacity. The applicant alleges that he volunteered on several occasions, but because of staff cutbacks in the Canton of Zürich he was never called to do any civil protection duty.
14. On 9 August 2001 the Zürich cantonal authorities responsible for the military-service exemption tax sent him an order to pay the tax for 2000, in the amount of 716 Swiss francs (CHF) (approximately 477 euros (EUR)), based on his taxable income that year (CHF 35,800 – approximately EUR 23,866).
15. In a letter of 11 September 2001, the applicant challenged the tax demand, considering that he was being discriminated against. He pointed out that he had always stated his readiness to do military service.
16. On 20 September 2001 the federal tax authorities informed the applicant that all Swiss men who did not suffer from a “major” disability were required to pay a tax in order to be exempted from military service. They explained that a disability was considered “major” if the degree of physical or mental disability was at least 40%. They considered that further examinations were needed in order to determine whether the applicant’s disability met that requirement.
17. When he examined the applicant on 14 May 2002, a doctor from the Zürich University Hospital found that in most cases the type of diabetes the applicant suffered from did not make people unfit for work.
18. In another expert medical examination on 5 May 2003, a military doctor found the applicant’s physical disability to be less than 40%.
19. By a decision of 15 July 2003, the Zürich cantonal authorities responsible for the military-service exemption tax decided, based on the findings of the medical examination and the expert examination of 14 May 2002, that the applicant did not qualify for exemption from the tax as his degree of invalidity was less than 40%. The applicant challenged that decision and the authorities confirmed it on 5 August 2003.
20. The Federal Tax Appeals Board for the Canton of Zürich upheld that decision on 7 November 2003. It considered that in adopting the criteria set out in section 4(1)(a) of the Federal Military-Service Exemption Tax Act of 12 June 1959 (see “Relevant domestic law and practice”, paragraph 30 below) Parliament’s intention had not been to generally exempt all people with disabilities from the obligation to pay the tax in question. In the applicant’s case the medical examination of 14 May 2002 had shown that his disability was not a major one and that his condition was highly unlikely to be an obstacle in his future career. Thanks to medical progress, patients with the applicant’s type of diabetes could live quite normal lives these days and practise almost any line of work. That being so, the people concerned were not considered to have disabilities for the purposes of section 4(1)(a) of the Federal Military-Service Exemption Tax Act. The Board further found that the applicant had failed to demonstrate that his condition, and in particular the need to administer himself four insulin injections a day, prevented him from working. Lastly, the Board did not consider that the distinction between major disabilities and other types of disability amounted, as the applicant alleged, to discrimination.
21. On 19 December 2003 the applicant filed an administrative complaint with the Federal Court. He claimed, in particular, that he was a victim of discriminatory treatment in so far as, on the one hand, he had been required to pay the exemption tax and, on the other, he had not been allowed to do his military service even though he had always stated his readiness to do it.
22. On 5 February 2004, when invited by the Federal Court to submit observations on the admissibility and merits of the complaint, the federal tax authorities recommended its rejection.
23. In a judgment of 9 March 2004, the Federal Court rejected the complaint. Based on the findings of the expert examination of 14 May 2002, it held that the applicant did not have a major physical or mental disability within the meaning of section 4(1)(a) of the Federal Military-Service Exemption Tax Act. Accordingly, he did not qualify for exemption from the tax. The Federal Court also pointed out that although the medical examination showed that the type of diabetes the applicant had was unlikely to prevent him from holding a normal job, the particular constraints of military service nevertheless obliged the authorities to declare him unfit.
24. The Federal Court explained that the aim of the law was to provide a system of compensation between those citizens who did their military service and those who were exempted from it for whatever reason. The tax in issue was meant to replace the effort and inconvenience of military service. As to the complaint of discrimination, the court explained that it was for reasons of equality that the law did not provide for a blanket exemption for all people with disabilities.
25. The Federal Court considered that the cantonal authorities had merely correctly applied the law and that it was not the court’s role to change the law.
26. It also held that the fact that the applicant had always declared his willingness to do military service and felt fit to do it as a professional driver did not make any difference, as the law provided for no alternative for someone in his situation but to pay the exemption tax.
27. Article 59 § 1 of the Federal Constitution provides the foundation for compulsory military service in Switzerland. It reads as follows:
Article 59: Military service and substitute service
“1. All men of Swiss nationality shall do military service. The law provides for substitute civilian service.
2. Swiss women may serve in the army on a voluntary basis.
3. All men of Swiss nationality who do not do military service or substitute civilian service shall pay a tax. The tax shall be paid to the Confederation and fixed and levied by the cantons.
...”
28. Conscripts go to a training school for 18 to 21 weeks at the age of 19 or 20, followed by six or seven 19-day refresher courses staggered over several years. It is also possible to do the full 300 days’ service in one uninterrupted stretch. Under section 42 of the Federal Army and Military Administration Act of 3 February 1995, ordinary servicemen must do 330 days’ training. For ordinary servicemen and non-commissioned officers, military-service obligations end at the end of the year of their 30th birthday or, if they have not completed their full training time, at the end of the year during which they reach the age of 34 (section 13(2)(a) of the same Act).
29. The Federal Military-Service Exemption Tax Act of 12 June 1959 imposes a tax on those who do not do all or part of their military service. Section 2 of the Act identifies the persons subject to the tax:
Section 2: Persons subject to the tax
“The persons subject to the tax are men, resident in Switzerland or abroad, who are eligible for service and who, in the course of a calendar year (the year in which the tax is applicable):
(a) for more than six months are not incorporated into an army corps or called upon to do civilian service;
...
(c) do not do the military or civilian service required of them as men eligible for service.
The tax shall not be levied on any man who, in the course of the year in which the tax is applicable, effectively did military service, even though he was not conscripted for the whole year ...”
30. Section 4 of the same Act lists the categories of people who are exonerated from paying the tax:
Section 4: Exoneration from the tax
“Shall be exonerated from the tax those persons who, in the course of the year in which the tax is applicable:
(a) because of a major physical or mental disability, have a taxable income which, after deduction of the insurance benefits mentioned in section 12(1)(c), and of the cost of support made necessary by the disability, does not exceed by more than 100% the minimum subsistence income for the purposes of debt recovery law;
(a) bis are considered unfit for military service because of a major disability and receive a disability benefit or allowance from the federal disability insurance or accident insurance scheme;
(a) ter are considered unfit for military service because of a major disability and do not receive a disability benefit or allowance, but meet one of the two minimum requirements to qualify for such an allowance;
...
(d) have reached the age-limit at which ordinary servicemen and non-commissioned officers, except higher-ranking non-commissioned officers, are released from their military obligations;
...”
31. This last provision indicates that the obligation to pay the tax lasts until the year in which the person concerned reaches the age-limit at which ordinary servicemen and certain non-commissioned officers are freed from military obligations, that is to say from the age of 19 or 20 to the end of the year of their 30th birthday (according to the applicant, under section 13 of the Federal Army and Military Administration Act he would be subject to the tax until the age of 34; see paragraph 28 above).
32. Under the legislation governing direct federal taxes, the military-service exemption tax is levied on the person’s total net income. As a result, for a bachelor the income on which the exemption tax is based is the taxable income under the law governing direct federal taxes. The exemption tax is 2% of that income (but no less than CHF 200). According to the Government that method of calculating the tax has the advantage of sparing the person concerned the trouble of filling in an additional tax declaration for the exemption tax.
33. In its earlier wording the criterion adopted in section 1(1) of the order of 30 August 1995 on the military-service exemption tax to determine whether a disability should be considered “major” for the purposes of the Federal Military-Service Exemption Tax Act was the degree of disability used for disability insurance. However, in a judgment of 27 February 1998 (ATF 124 II 241), the Federal Court explained that the notion of “major” physical or mental of disability within the meaning of section 4(1)(a) of the Federal Military-Service Exemption Tax Act should be understood in the medical sense, not the disability insurance sense. Ruling on the merits of the case, it held that the disability caused by amputation of the leg at the knee was a “major” disability, corresponding to 40% on the disability scale (Appendix 3 to the order of 20 December 1982 on accident insurance).
34. In a judgment of 22 June 2000 (Archiv für Schweizerisches Abgaberecht 69, p. 668), the Federal Court decided that in order to determine whether a disability was “major” for the purposes of exemption from the tax, what should be taken into consideration were the tables used by the Swiss National Insurance Fund in the event of an accident to calculate compensation for bodily harm in accordance with the federal law on accident insurance. The court also considered that the authorities could base their decision on the federal tax authorities’ “Instructions concerning exoneration from the tax because of a major physical, mental or psychological disability”, which were based on those tables and could be considered to have the value of a presumption of law in so far as they were sufficiently relevant to the particular case.
35. According to the parties there is no “alternative” to military service under Swiss law.
36. Civilian service is a substitute service for people eligible for military service who cannot reconcile the obligation to do military service with their conscience. It is regulated by the Federal Civilian Service Act of 6 October 1995. The formal condition for eligibility for civilian service is fitness for military service.
37. Article 61 of the Federal Constitution provides separate regulations governing civil protection. The obligation to do civil protection service is unrelated to the obligation to serve in the army, so military service cannot be replaced by time spent in the civil protection service. Nor is there any possibility of choosing between military service and civil protection. On the other hand, all the training and work done in civil protection can be taken into account in the calculation of the exemption tax.
38. The Office of the United Nations High Commissioner for Human Rights presented a report to the United Nations Economic and Social Council on best practices in relation to conscientious objection to military service, which described the wide range of substitute services available (ECOSOC, Commission on Human Rights, Civil and Political Rights, Including the Question of Conscientious Objection to Military Service, Doc. E/CN.4/2006/51, 27 February 2006, available on the Internet). In this report the Office of the High Commissioner addressed the question of paying a tax instead of doing military service:
“53. An issue related to conscientious objector status, or more broadly exemption from or a reduction of compulsory military service for any reason, is the payment of a special tax. Although this is not widespread, it has been reported to occur in a number of countries. Switzerland, for example, levies a tax on earned income for all male citizens who cannot perform their compulsory military service for whatever reason. Other types of taxes relating to exemption or reduction in the period of military service have been reported to occur or to have occurred in countries such as Albania, Ecuador, Georgia, Turkey and Uzbekistan.”
39. The non-governmental organisation Conscience and Peace Tax International, which has special consultative status with the United Nations, submitted observations to the former Commission on Human Rights of the United Nations Economic and Social Council (ECOSOC, Commission on Human Rights, Written Statement submitted by Conscience and Peace Tax International, Doc. E/CN.4/2006/NGO/108, 18 February 2006), in which it stated (p. 2):
“... a surprising number of States continue to accept financial contributions in lieu of military service. In Colombia, Ecuador, Bolivia and Switzerland all or most of those excused military service for whatever reason – including those who are willing but physically incapable – are required to pay a special military tax. In other countries there is legal provision that exemption (Albania, Georgia, Mongolia) or (Iran, Uzbekistan) the commutation of military service to a brief period of training may be purchased for cash ...”
40. Staff reductions in the army, in particular on the occasion of the “Army 95” and “Army XXI” reforms, went hand in hand with a decrease in the length of military service. When the “Army 95” reform was introduced the age by which compulsory military service had to be completed was lowered from 50 to 42 years for most people, and that age was further lowered by the “Army XXI” reform to 30 or 34 years.
41. For the years 2001 and 2002 79.8% of the population eligible for conscription (56,380 out of 70,634 people) were found fit for military service. During the subsequent training school approximately 22% of those dropped out for medical reasons, so about 58% of the eligible population completed the training.
42. In 2004 there were 27,766 conscripts, 17,445 (62.8%) of whom were found fit for service; in 2005 conscripts numbered 33,036, of whom 20,155 (61%) were found fit for service; and in 2006 24,134 out of 37,377 conscripts (64.6%) were found fit for service. In 2004, 4,457 people (that is to say 16% of the people actually conscripted that year and 10% of those found fit for military service) were released from the obligation to do military service while in training school for medical reasons (the corresponding figures for 2005 were 3,071 people or 9.3% and 5.7% respectively; and for 2006, 2,668 people or 9.3% and 6% respectively). According to statements made to the press on 6 January 2008 by Major General Lupi, Surgeon General of the Swiss Army, 34% of conscripts were declared unfit for military service during the 2007 recruitment campaign and another 6% would very probably be declared unfit for military service during or after training school (figures taken from the Neue Zürcher Zeitung of 7 January 2008, p. 8).
43. According to the Government, these figures show that in recent years between 52% and 58% of conscripts completed training school.
VIOLATED_ARTICLES: 14
8


ITEMID: 001-72771
LANGUAGEISOCODE: ENG
RESPONDENT: FIN
BRANCH: ADMISSIBILITY
DATE: 2006
DOCNAME: VIROLAINEN v. FINLAND
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Nicolas Bratza
TEXT: The applicant, Mr Pertti Virolainen, is a Finnish national, who was born in 1939 and lives in Espoo. He is represented before the Court by Mr Jyrki Virolainen, a law professor at the University of Lapland. The respondent Government are represented by their Agent, Mr Arto Kosonen, Director in the Ministry for Foreign Affairs.
The facts of the case, as submitted by the parties and as they appear from the documents, may be summarised as follows.
On 4 April 1996 lawyer K. submitted to the District Court (käräjäoikeus, tingsrätten) of Joensuu an application for a summons against ten persons, including the applicant (also a lawyer), requesting their punishment for alleged false denunciation “despite better knowledge” (vastoin parempaa tietoa tehty perätön ilmianto, osann angivelse emot bättre vetande) and defamation “despite better knowledge” (vastoin parempaa tietoa tehty herjaus, smädelse emot bättre vetande) on several counts, and demanding damages. K. alleged that the applicant had participated in a campaign of false accusations against him, allegedly caused by the fact that K. had tried to recover unpaid fees from his former clients.
In an appended indictment (including charge no. 1.2) K. demanded the punishment of the applicant on three counts of alleged false denunciation and three counts of alleged defamation committed “despite better knowledge”. K. alleged that, on 1 June 1995, while representing H. the applicant had reported an offence against K. alleging aggravated fraud, aggravated extortion (kiristys, utpressning), misuse of a position of trust (luottamusaseman väärinkäyttö, missbruk av förtroendeställning) and forgery. According to K., the applicant, in his report of offences, had claimed that K. had overcharged one of his clients, intentionally lost his clients’ cases and caused them damage, and forged the signatures of his clients to several powers of attorney. A public prosecutor had on 26 February 1996 waived charges against K.
In another appended indictment (including charge no. 2.2) K. demanded the punishment of the applicant on five counts of alleged false denunciation and five counts of alleged defamation “despite better knowledge”. K. alleged that, on 14 February 1995, while representing several of his clients the applicant had reported an offence against K. and accused K. of several offences, namely forgery, misuse of a position of trust, breach of consumer credit regulations (kulutusluottorikos, konsumentkreditbrott), slander and profanation of the memory of a deceased person (kuolleen miehen muiston häpäiseminen, skymfande av död mans minne). K. also accused the applicant of having given false information and putting forward false allegations against K. in the pre-trial investigations following the applicant’s report to the police. A public prosecutor had on 19 February 1996 waived part of the charges against K.. Based on the remaining issues in the reports of offences submitted by the applicant, a public prosecutor had lodged charges of embezzlement and attempted fraud against K.
On 24 April 1996 the District Court served a writ of summons on the applicant. It noted that it had transferred the examination of the indictments against two co-defendants to separate criminal proceedings which were pending at the same time. The applicant received the summons on 3 May 1996.
On 12 June 1996 the District Court held the first hearing, in which K.’s indictment was considered. A public prosecutor, present at the hearing, did not support the charges. The applicant was not present due to a holiday trip abroad, of which he had informed the District Court in advance. The case was adjourned at K.’s request. The court imposed a conditional fine on the applicant in order to obtain his attendance. The second hearing took place on 12 September 1996. The case was adjourned as one of the two presiding judges had become disqualified.
On 17 December 1996 the third hearing was held. The applicant contested the charges disputing the alleged facts and requested that these proceedings should follow the pending criminal proceedings against K. concerning the embezzlement and fraud in order for the facts to be better established. The applicant maintained that he had reported the offences against K. on his clients’, i.e. the co-defendants’, instructions, after verifying the facts with his clients and becoming convinced of the probable existence of reasons to suspect the offences. K. requested an adjournment, to which the applicant did not object.
The fourth hearing took place on 29 January 1997. The case was adjourned at K.’s request.
The fifth hearing was held on 12 February 1997, when the case was adjourned with the agreement of all parties in anticipation of the outcome of the criminal proceedings against K., which were now pending before the same District Court.
On 14 March 1997 the District Court dismissed the charges of alleged embezzlement and fraud against K.. Upon appeal, the Court of Appeal (hovioikeus, hovrätten) of Eastern Finland upheld the judgment on 9 April 1998, and finally, on 19 November 1999, the Supreme Court (korkein oikeus, högsta domstolen) refused leave to appeal.
On 20 January 2000 the applicant submitted his observations to the District Court in reply to K.’s written statements of 3 and 5 January 2000. According to the applicant, in his letter of 3 January 2000 K. “renewed his requests and the description of the alleged offences in broad outline.”
According to the applicant, on 16 February 2000 the District Court sent a memorandum to the parties, which included K.’s indictment, corresponding to his application for a summons on 4 April 1996.
A preparatory hearing was held on 25 February 2000, in which the applicant was not present. At that hearing the District Court prepared the examination of the criminal proceedings instigated by K., as well as another set of criminal proceedings instigated at some point by one of the applicant’s co-defendants against K.. K. repeated his indictment as regards the allegedly unlawful reports of offences submitted by the applicant on 14 February 1995 and 1 June 1995. The applicant’s written observations, contesting these charges (see above), were included in the minutes of the preparatory hearing.
On page 2 of the minutes of the preparatory hearing it was stated:
“K. specified that his indictment was based on those acts that the defendants had committed prior to the public prosecutor’s decision not to lodge charges.”
The District Court’s main hearing was held on five days on 5-7 April and 10-11 April 2000. The applicant was present on 5-7 April, partially present on 10 April (with the court’s consent), and again present during the entire hearing of 11 April 2000.
According to the minutes of the main hearing (on pp. 6 and 11), K. presented alternative charges of defamation “without better knowledge” (ei vastoin parempaa tietoa tehty herjaus, smädelse dock icke emot bättre vetande) i.e. negligent defamation, to be distinguished from defamation “despite better knowledge”, that is to say, intentionally imputing an offence to K. whilst knowing that he had not committed it (rather than voicing a mere suspicion that he had).
On page 5 of the minutes of the main hearing the charge no. 1.2 was particularised, insofar as relevant, as follows:
“[A co-defendant H.] represented/advised/urged by [the applicant] and [the applicant], have in a report of an offence drawn up by [the applicant] on 1 June 1995, which report was received by the Police of Joensuu on 29 June 1995, and in the subsequent pre-trial investigations, despite without better knowledge ... .”
On page 6 of the minutes of the main hearing, it was further noted in connection with charge no. 1.2 that:
“K. has based his indictment on all those acts that the defendants have committed in connection with the reports of offences prior to the public prosecutor’s decision not to lodge charges.”
On 25 April 2000 the District Court delivered its judgment. It dismissed all charges concerning false denunciation. According to the District Court, the applicant had not deliberately given false information to the police. It convicted the applicant of defamation committed “without better knowledge”. As to the first set charges (charge 1.2) the court found that the applicant’s allegations presented in his final statement of 11 January 1996 to the police had been harmful to K. and not been proven to be correct. The District Court further ruled that the applicant had in the final statement demanded that K. be charged with those offences reported by his clients, and that at that point he had at his disposal the entire pre-trial investigation report, and could therefore not rely entirely on his clients’ assertions. As regards the second set of charges of defamation (charge no. 2.2) the District Court found, inter alia, that the applicant had submitted to the police final statements of 31 August 1995 and 13 December 1995 in which he had alleged that K. was guilty of the offences reported on 14 February 1995. The District Court noted that at that point the applicant had at his disposal the entire pre-trial investigation report. It also took into account a report of an offence drawn up by the applicant on 22 May 1995 on his clients’ behalf. It found that the applicant, as a lawyer, should have been aware of the groundlessness of the allegations of forgery and misuse of a position of trust, and had, thus, committed defamation “without better knowledge”.
The District Court sentenced the applicant to 80 day-fines, amounting to 18,000 Finnish Marks (FIM; corresponding to 3,027 euros (EUR)) and ordered him to pay, separately and jointly with a co-defendant, damages of FIM 20,000 (EUR 3,364) and legal expenses of FIM 40,000 (EUR 6,728) plus interest, and, separately, damages of FIM 20,000 plus interest.
On 8 June 2000 the applicant appealed against the entire judgment to the Court of Appeal of Eastern Finland, complaining under Article 6 § 3 (a) of the Convention that the District Court had convicted him of offences with which he had not been charged and requesting, inter alia, an oral hearing. According to the applicant, K.’s indictment was insufficiently specified and had demanded punishment for defamation “despite better knowledge” whereas the District Court had convicted him of defamation “without better knowledge”, thus depriving him of a chance to defend himself. The applicant maintained that, despite the District Court’s minutes, K. had not presented alternative charges of “without better knowledge” during the principal hearing, and that had this occurred while he was absent on 10 April 2000, it was in any case prohibited.
Further, the applicant complained that the final statements submitted by him to the police on 11 January 1996 (charge no. 1.2) and on 13 December 1996 (charge no. 2.2) were not mentioned in the indictments and that he had, thus, not been charged with defamation in those regards. According to the applicant, the District Court’s conviction was entirely based on these final statements, which deprived him of a chance to defend himself. The applicant emphasised that K.’s indictment relied only on his reports of offences of 14 February 1995, 22 May 1995 and 1 June 1995.
The applicant put forward that he had submitted the final statements to the police following the normal proceedings pursuant to section 42 of the Act on Pre-Trial Investigation (esitutkintalaki, förundersökninglag; 449/1987) and not with the intent of offending K. He maintained, inter alia, that he had not alleged K.’s guilt beyond what K. had himself admitted in the pre-trial investigations, and that he was entitled to rely on his clients’ instructions and assertions. He had in fact in both cases requested the police to continue their investigations. He maintained that as the police had conducted four further witness interrogations and other investigative measures after his final statements, he did not have at his disposal the entire pre-trial investigation reports as the District Court had, according to the applicant, wrongly held. He also complained that punishing legal counsel for pursuing their clients’ cases would impede the lawyers’ actions.
The applicant further maintained that the presiding judge had allowed K. to insult him during the trial several times which disclosed bias and rendered the trial unfair.
On 12 December 2000 the Court of Appeal, without having held an oral hearing, upheld the District Court’s judgment, accepting its reasons and upholding the applicant’s conviction and sentence. It however reduced his overall damage liabilities to FIM 20,000 (EUR 3,364) and ordered him to reimburse K’s legal expenses in the District Court jointly and separately with a co-defendant by FIM 25,000 (EUR 4,205). It ordered the parties to bear their own legal expenses in the Court of Appeal.
On 18 January 2001 the Finnish Bar Association (Suomen asianajajaliitto, Finlands Advokatförbund) informed the applicant that it had commenced disciplinary proceedings against him.
On 7 February 2001 the applicant sought leave to appeal and appealed to the Supreme Court expressing his dissatisfaction with the outcome and reasoning of the appellate court’s judgment.
On 29 January 2002 the Supreme Court refused the applicant leave to appeal.
Section 12 of the Finnish Constitution (perustuslaki, grundagen; 731/1999) provides that everyone has the freedom of expression. Freedom of expression entails the right to express, disseminate and receive information, opinions and other communications without prior prevention by anyone. More detailed provisions on the exercise of the freedom of expression are laid down by an Act.
Chapter 14, section 3 of the Code of Judicial Procedure (oikeudenkäymiskaari, rättegångsbalk; 362/1960), as in force at the relevant time, provided that a public prosecutor was to present his/her requests and their grounds at the beginning of the trial. Unless there were pressing reasons, the same applied to the victim.
Chapter 5, section 17 of the Code on Criminal Procedure (laki oikeudenkäynnistä rikosasioissa, lag om rättegång i brottmål; 689/1997), as subsequently in force, provides that a served indictment may not be changed. A public prosecutor may, however, expand the indictment to include another alleged offence, provided that the court finds it appropriate. Subsection 2 of the section provides that to restrict the charges or to rely on another legal provision or a new fact is not regarded as expanding the charge.
Section 42 of the Act on Pre-Trial Investigation (esitutkintalaki, förundersökningslagen; 449/1987) provides that the police must give the parties an opportunity to submit their final statements concerning the material gathered in the pre-trial investigations, if such a statement is liable to expedite or facilitate the examination of the case in a court. The final statement must be attached to the minutes of the pre-trial investigations.
Chapter 27, section 1 of the Penal Code (rikoslaki, strafflagen) as in force at the relevant time, provided that a person alleging, albeit contrary to his or her better knowledge, that someone had committed an offence was to be convicted of defamation, unless he or she could show probable cause in support of the allegation.
According to Chapter 27 section 2 of the Penal Code, as in force at the relevant time, a person alleging, albeit not contrary to his or her better knowledge, that someone had committed an offence was to be convicted of defamation, unless he or she could show probable cause in support of the allegation.


ITEMID: 001-107251
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: CHAMBER
DATE: 2011
DOCNAME: CASE OF DİNÇER AND OTHERS v. TURKEY
IMPORTANCE: 4
CONCLUSION: Violation of Art. 6-1;Violation of P1-1
JUDGES: András Sajó;David Thór Björgvinsson;Françoise Tulkens;Guido Raimondi;Paulo Pinto De Albuquerque
TEXT: 4. The applicants were born in 1921, 1941, 1946, 1948 and 1946 respectively and lived in Bursa.
5. In 2004 the General Directorate of Highways seized a plot of land belonging to the applicants without any formal expropriation, for the construction of a highway. The applicants brought an action before the Karacabey Civil Court to obtain compensation for the de facto expropriation of their property. They requested 5,500 Turkish liras (TRY) as compensation from the court and reserved their right to increase this claim in due course.
6. On 15 June 2006 the Karacabey Civil Court awarded the applicants TRY 5,500 as compensation for the de facto expropriation of their land, as requested, plus interest. The applicants initiated execution proceedings before the Bursa Execution Office to obtain that amount (file no. 2009/2819).
7. On 13 March 2007 the Court of Cassation upheld the judgment of the first-instance court.
8. The applicants subsequently brought an additional action (“ek dava”) before the Karacabey Civil Court to obtain further compensation for their land in the light of the expert report obtained during the previous proceedings, which had valued the land at a rate higher than that initially requested by them.
9. On 24 May 2007 the Karacabey Civil Court awarded the applicants TRY 372,445.25, plus interest. The applicants initiated another set of execution proceedings before the Bursa Execution Office to obtain the amount awarded (file no. 2007/6190).
10. On 16 October 2007 the Court of Cassation upheld the judgment of the Karacabey Civil Court, however reduced the amount awarded to the applicants to TRY 340,949.81.
11. On 26 March and 13 November 2009 the administration paid TRY 8,925 and 485,173 respectively to the files before the Bursa Execution Office. According to the information provided by the applicants, there has been no debt outstanding in the execution files.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-66732
LANGUAGEISOCODE: ENG
RESPONDENT: HUN
BRANCH: CHAMBER
DATE: 2004
DOCNAME: CASE OF MATYAS v. HUNGARY
IMPORTANCE: 4
CONCLUSION: Violation of Art. 6-1 with regard to the length of the proceedings;Inadmissible under Art. 6-1 with regard to the fairness of the proceedings;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award
TEXT: 4. The applicants were born in 1935 and 1939 respectively and live in Szabadbattyán, Hungary.
5. In 1991 the applicants bought a flat from A.B. In the contract of sale A.B. agreed that the sum of 1,000,000 Hungarian forints (HUF) would be paid by the purchasers at a later date. However, the applicants refused to pay the amount, claiming that the house had turned out to be in a worse condition than they had thought at the time of the purchase and, therefore, its value was less than that agreed in the contract.
6. Consequently, on 13 December 1992 A.B. brought an action against the applicants before the Székesfehérvár District Court for the payment of the outstanding amount, plus interest.
7. On 22 June 1993 the District Court heard the plaintiff, whereas the applicants' lawyer failed to appear.
8. At the hearing on 16 December 1993 the plaintiff refused to give statements in the absence of her counsel. The District Court therefore ordered the lawyer to justify his absence. On 24 January 1994 the plaintiff appointed a new legal representative.
9. At the hearing on 8 March 1994 the plaintiff and her legal representative failed to appear. Consequently, the court stayed the proceedings. On 8 September 1994 the plaintiff requested that the case be continued.
10. In the resumed proceedings, on 5 December 1994 and 29 March 1995 the District Court requested further documents from the plaintiff. The plaintiff submitted them on 27 March and 4 May 1995, respectively.
11. A hearing scheduled for 22 June 1995 was postponed on the parties' request.
12. On 10 October and 5 December 1995 the court heard the parties and, on the latter date, witnesses as well.
13. As the parties failed to appear at the hearing on 20 February 1996, while trying to settle the case, the District Court stayed the proceedings.
14. Having failed to settle the case, the parties requested that the proceedings be continued. In the resumed proceedings, the District Court postponed the hearing that had been scheduled for 27 June 1996, as a witness failed to appear. At the hearing on 29 October 1996 the witness, who had repeatedly failed to be present, was fined. The applicants requested that a real-estate expert be appointed in the case. They deposited the expert's costs on 3 December 1996. Consequently, on 16 December 1996 the District Court appointed an expert.
15. Following an on-site inspection of 1 March 1997, on 28 March 1997 the expert submitted his opinion.
16. In a judgment on 22 October 1997, the District Court ordered the applicants to pay the plaintiff HUF 850,000, plus interest. The court relied on the expert's opinion and testimonies given by the parties and several witnesses.
17. On the applicants' appeal, on 8 December 1997 the Fejér County Regional Court partially modified the first-instance judgment and reduced the court fees.
18. The applicants' petition for review of 21 September 1998 was dismissed by the Supreme Court on 18 May 2000, the final judgment having been delivered in accordance with the law.
19. The applicants were represented by a lawyer of their choice throughout the proceedings.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-90148
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: CHAMBER
DATE: 2008
DOCNAME: CASE OF PEHLİVAN v. TURKEY
IMPORTANCE: 4
CONCLUSION: Violation of Article 5 - Right to liberty and security;Violation of Article 6 - Right to a fair trial
JUDGES: András Sajó;Françoise Tulkens;Ireneu Cabral Barreto;Nona Tsotsoria;Vladimiro Zagrebelsky
TEXT: 4. The applicant was born in 1963 and lives in Istanbul.
5. On 5 April 1996 the Diyarbakır provincial gendarmerie command issued an arrest warrant in respect of the applicant, on the basis of which he was arrested and taken into custody on 12 April 1996 by police officers from the Anti-Terrorist Branch of the Istanbul Police Headquarters. Upon his arrest, the applicant signed an arrest report acknowledging the warrant and the authorities’ intention to transfer him to the Diyarbakır provincial gendarmerie command.
6. On 12 April 1996 a house search report was drafted by police officers from the Anti-Terrorist Branch of the Istanbul Police Headquarters which indicated that the applicant had been arrested on suspicion of affiliation to the PKK (the Kurdistan Workers’ Party), an illegal organisation, and of having committed homicide. The report was signed by three police officers and the applicant.
7. After being held for two days in the Istanbul police headquarters, the applicant was transferred to Diyarbakır, where he was held in the custody of the gendarmerie until 25 April 1996.
8. On 22 April 1996 the applicant was questioned by officers from the Diyarbakır provincial gendarmerie command, where he was requested to provide information regarding his affiliation to the PKK and his involvement in the killing of a certain B.C. The applicant stated that he was a member of the PKK and that he had killed B.C. in compliance with orders he had received from that organisation.
9. On 25 April 1996 the applicant was brought before the Diyarbakır public prosecutor, where he alleged that he was not involved in the activities of the PKK. The applicant further contended that in 1992 he had killed B.C. in his village as he had suspected that his partner had had a relationship with him. The applicant stated that the murder was not linked to any terrorist activity. The statements that he had made at the gendarmerie command were read to him. The applicant denied having made them. Furthermore the statements of three other suspects, Ş.B., Ş.C. and S.B., who maintained that the applicant was a member of the PKK, were also read to him. The applicant rejected these statements, claiming that these persons were relatives of B.C.
10. On the same day, the applicant was brought before a single judge at the Diyarbakır State Security Court. He reiterated the statements which he had made before the public prosecutor. Following his questioning, the judge remanded the applicant in custody, holding that there were strong indications that he had committed the offence defined in Article 125 of the former Criminal Code, namely carrying out activities for the purpose of bringing about the secession of part of the national territory.
11. On 10 May 1996 the public prosecutor at the Diyarbakır State Security Court filed a bill of indictment against the applicant and six other persons. The applicant was charged under Article 125 of the former Criminal Code, and with killing B.C.
12. On 14 May 1996 the First Division of the Diyarbakır State Security Court held a hearing and ordered the applicant’s continued detention on remand in view of the nature of the offence, the state of evidence and the content of the case file.
13. On 19 August 1996 the applicant made statements before the firstinstance court, denying the charges against him.
14. Between 19 August 1996 and 29 December 1997, the first-instance court postponed the hearings as it was awaiting information and documents from the Lice public prosecutor’s office.
15. On 29 December 1997 the State Security Court requested the Lice gendarmerie command to provide information concerning the killing of B.C. The court subsequently postponed the hearings until 24 December 1998 on account of the failure of the gendarmerie command to submit the relevant information.
16. On 22 November 1999 the First Division of the Diyarbakır State Security Court requested the Third Division of the same court to submit a copy of the file in the case brought against Ş.B., Ş.C. and S.B. Between 22 November 1999 and 4 September 2001, the trial court postponed the hearings as the Third Division failed to submit a copy of the case file.
17. During the trial, the Diyarbakır State Security Court held forty-five hearings. At the end of every hearing the first-instance court considered the applicant’s detention during judicial proceedings, either of its own motion or at the applicant’s request. It ordered the applicant’s continued detention pending trial, having regard to the nature of the offence and the state of the evidence.
18. On 26 March 2002 the Diyarbakır State Security Court convicted the applicant under Article 448 of the Criminal Code of homicide and sentenced him to fifteen years’ imprisonment. The court found no convincing evidence that the offence committed by the applicant was linked to terrorist activities. The court ordered the applicant’s release from prison in view of the length of his detention during judicial proceedings.
19. On 4 July 2002 the Court of Cassation quashed the judgment of 26 March 2002 because the applicant had been unable to examine three witnesses against him during the trial. The case was subsequently remitted to the First Division of the Diyarbakır State Security Court.
20. On 12 August 2002 the first-instance court requested the Istanbul State Security Court to obtain submissions from the applicant on the statements of the witnesses. Between 12 August 2002 and 14 July 2003, the State Security Court held six more hearings whilst awaiting the applicant’s submissions.
21. On 14 July 2003 the first-instance court convicted the applicant once more of homicide and sentenced him to fifteen years’ imprisonment.
22. On 8 April 2004 the Court of Cassation upheld this judgment.
23. Article 104 of the Code of Criminal Procedure in force at the material time provided that a person could be remanded in custody where there was a fear that the accused would abscond, or where there were attempts by the accused to remove evidence or interfere with witnesses. When the offence was a felony, it was presumed that the suspect was planning to escape. The last paragraph of Article 104 provided that detention on remand could not be imposed if another measure was adequate.
Articles 117-122 of the Code of Criminal Procedure in force at the material time set out the conditions for release on bail.
VIOLATED_ARTICLES: 5
6