ITEMID: 001-59100
LANGUAGEISOCODE: ENG
RESPONDENT: CYP
BRANCH: CHAMBER
DATE: 2000
DOCNAME: CASE OF EGMEZ v. CYPRUS
IMPORTANCE: 1
CONCLUSION: Violation of Art. 3;No violation of Art. 5-1;No violation of Art. 5-2;No violation of Art. 5-3;No violation of Art. 5-4;Violation of Art. 13;No separate issue under Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings
JUDGES: Antonio Pastor Ridruejo
TEXT: 9. The Commission, in order to establish the facts which were disputed by the parties, conducted an investigation pursuant to former Article 28 § 1 (a) of the Convention. To that end, it examined a series of documents and appointed three delegates to take the evidence of witnesses at a hearing in Cyprus between 22 and 26 March 1999, which both parties attended. The Commission made the following findings as to the facts.
10. The applicant lived in the village of Louridjina/Akıncılar in the part of Cyprus that is not controlled by the government of the respondent State (“the northern part”). He owned fields in the buffer-zone that separates the northern part from the area controlled by the government of the respondent State (“the government-controlled area”).
11. Before 7 October 1995 the applicant had several meetings with undercover agents of the security forces of the Republic of Cyprus in the buffer-zone. At these meetings the possibility of trading in drugs was discussed. It was finally agreed that the applicant would deliver a quantity of drugs to two undercover agents, Mr K. Kiriakidis of the Anti-Drug Service (Ipiresia Dioxis Narkotikon – IDIN) and Mr K. Miamiliotis of the Central Intelligence Service (Kendriki Ipiresia Pliroforion – KIP). The delivery was scheduled to take place in the government-controlled area near the Athienou to Kosi road on 7 October 1995. The meeting point was adjacent to the buffer zone.
12. On the evening of 7 October 1995 a number of security agents, including members of the Special Forces (Mihanikiniti Monada Amesis Drasis – MMAD), hid around the meeting point. They had been briefed that the applicant was potentially very dangerous. The aim of the operation, which was organised by IDIN, was to arrest the applicant in flagrante delicto.
13. The meeting took place as planned and the two undercover agents tried to immobilise the applicant while he was delivering the drugs. The applicant hit them and started running towards the buffer-zone. Two of the MMAD officers present, Mr P. Andoniou and Mr Th. Koumas, gave chase. Mr Andoniou was the first to catch up with the applicant. A brief scuffle ensued in the government-controlled area. The applicant kicked Mr Andoniou who kicked him back. Then Mr Andoniou hit the applicant twice on the head with his firearm, once on the right side and once on the left. Mr Koumas threw the applicant to the ground and a third MMAD officer, Mr A. Ioannidis, who had arrived in the meantime, put a pair of handcuffs on him. Then the applicant was surrounded by a number of officers some of whom had participated in his arrest.
14. The head of the operation decided that the applicant should be taken in a car to Larnaka police headquarters. Apart from the driver, there were three officers in the car: Mr Andoniou, Mr Ioannidis and Mr Y. Superman, of IDIN. Mr Ioannidis sat with the applicant in the back of the car.
15. When the car arrived at the police headquarters, the decision was taken to take the applicant to Larnaka General Hospital. A fifth officer, Mr A. Vrionis, boarded the car for the second leg of the journey.
16. When the applicant arrived in the hospital he was fully conscious, and able to communicate in Greek. Mr Vrionis asked him questions concerning his meeting with Mr Kiriakidis and Mr Miamiliotis and the selling of drugs. He noted the answers on a hospital form.
17. The applicant was successively examined by Dr H. Panayiotu, Dr S. Loizou and Dr D. Orphanidou in Larnaka Hospital on the evening of 7 October 1995.
18. On his admission to the hospital, the applicant had bruises on the face, a clean laceration to the ear, a clean laceration to the buttock, parallel injuries to the feet and long, linear, clean, uninterrupted injuries to the back in a quasi-geometrical pattern.
19. On 8 October 1995 officers of the Nicosia police force started an investigation into the case.
20. On the afternoon of the same day, the Nicosia District Court held a hearing in Larnaka Hospital in the presence of the applicant. The judge, relying on the existence of a reasonable suspicion, the risk of absconding, the number of witnesses to be interviewed by the police and the severity of the charges, remanded the applicant in custody for eight days.
21. On 9 October 1995 three police officers requested and obtained Dr Orphanidou's permission to question the applicant. The police officers, one of whom spoke Turkish, informed the applicant that he was suspected of drug trafficking. The applicant signed a statement.
22. On the same day the applicant was examined by Dr H. Hatziharu.
23. On 10 October 1995 the applicant met his lawyers, Mr N. Pelides, who practised in the government-controlled area, and Mr A. Erdag and Mr A. Mentes, who had come from the northern part. The meeting took place in the applicant's room in Larnaka Hospital in the presence of police officers.
24. On the same day the police sought and obtained permission by Dr Hatziharu to examine the applicant. The applicant signed a supplementary statement.
25. On 11 October 1995 the applicant was transported to Nicosia General Hospital.
26. On 13 October 1995 the applicant was visited by two members of the United Nations Force in Cyprus (UNFICYP): the United Nations Senior Medical Officer, Lieutenant-Commander H. Marquez, and Superintendent W. Harrigan of the United Nations Australian Police Force.
27. On 16 October 1995 the Nicosia District Court held a hearing in Nicosia Hospital. The applicant was assisted by an interpreter and was represented by Mr Pelides. The judge, considering that the police had used the first warrant properly and that it was necessary that the detention should be continued for the police to be able to complete their investigation, remanded the applicant in custody for another eight days.
28. On 17 October 1995 the applicant was transferred to Likavitos police station. On the same day he received a visit there by his wife, Dr Marquez, Superintendent Harrigan and Lieutenant-Colonel J. Tereso, Chief Humanitarian Officer of UNFICYP.
29
30. On the same day the applicant appeared before the Nicosia District Court. He was represented by two counsel, Mr Pelides and Mr G. Kadri, the latter practising in the northern part. The charges were read out. The Attorney-General informed the court in writing that, given that there had been a police investigation, no preliminary inquiry was necessary. The police submitted the case file, which had also been sent to the applicant's lawyers. The applicant's lawyers stated that they reserved their position as to the applicant's defence. They also stated for the record that the applicant had been ill-treated during his arrest and transport to Larnaka police headquarters. The court committed the applicant for trial on 4 December 1995. The applicant's lawyers asked for his provisional release. The court ordered his continued detention because of the risk of absconding, the severity of the charges he was facing and the possibility that he would be convicted.
31. The applicant was transferred to Nicosia Prison. On 25 October 1995 he was visited by Dr K. Bekiroglu, a private practitioner from the northern part.
32. On 1 November 1995 Mr Andoniou, Mr Koumas, Mr Miamiliotis, Mr Kiriakidis and Mr S. Georyiu of KIP were rewarded with a promotion for their contribution to the applicant's arrest.
33. On 9 November 1995 Lieutenant-Colonel Tereso informed the Presidential Commissioner for Humanitarian Affairs of the Republic of Cyprus of the following:
“On 13 October 1995, a week after his arrest, the United Nations Senior Medical Officer examined Mr Yusuf [see paragraph 35 below] at the Nicosia General Hospital and made the following observations: His head and face were swollen with many bruises on his cheeks and lips. His forehead was bruised with two recent scars. His eyes were bloodshot, swollen and discoloured. He had a cut on his left ear which was recently stitched. This wound may have been inflicted with a knife or a similar sharp object. He had a superficial wound to his right wrist which was caused by his handcuffs. He had abrasions to his left forearm, right shoulder and both knees which could indicate an involvement in a fight or a struggle. He had two cuts on his right buttock which were 1 cm and 3 cm long and recently stitched. These wounds were probably inflicted with a knife or sharp object. On his back he had many superficial, horizontal marks, particularly in his lower lumbar region. These scars on his back may have been caused by whipping or beating. He complained of a pain in his abdomen but it must have been muscular pain because the abdomen did not show signs of internal injury. Such muscular pain could be consistent with punching or kicking. Yusuf was handcuffed to his hospital bed. It is the considered medical opinion [sic] that his injuries could not have been self-inflicted and that his injuries are consistent with being ill-treated in a fight or severely beaten, the condition of his wounds suggest that they were inflicted during the previous week and his injuries indicated that they may have occurred over a period of time as his wounds were at different stages of healing.”
34. On 1 December 1995 the AttorneyGeneral filed with the Nicosia District Court a nolle prosequi in the applicant's case, in accordance with Article 113 § 2 of the Constitution.
35. The applicant was released on the same day. Before his release he signed the following complaint to the Ombudsman of the Republic of Cyprus:
“I, the undersigned Osman Yusuf (Erkan Egmez), hereby complain that as I was working in my market garden I was arrested by Greek Cypriot policemen and tortured. On arresting me they hit me over the head with a baton or a heavy metal or wooden object. They kicked and punched me in the abdomen. They stabbed me five or six times in the buttocks with a knife. I was also injured. They cut off my ear with a knife. Between eight and twelve men attacked me and beat me. I lost consciousness. When I came to, they were cutting the soles of my feet with a knife or razor blade. I was screaming with pain. They hit me in the face and wounded me under the left eye. Blood started to flow from the wound. I was injured on the forehead, which also began to bleed. Someone (a policeman) thrust his fingers into my eyes as hard as he could. They didn't stop kicking me. One of them hit me with his gun. I had injuries to my shoulders, which also began to bleed. They split my lips. My left eye was swollen up so much that I could no longer see. I was unable to speak and have absolutely no recollection of them taking a statement from me at the hospital. I therefore complain about all of these acts of torture and inhuman acts which they inflicted on me and respectfully request you to open an investigation. PS I am at your disposal for any further information on this subject.”
The complaint was countersigned by a UNFICYP officer.
36. The applicant returned to the northern part immediately. On the same day he was visited by a journalist who photographed his wounds.
37. On 4 December 1995 there was a hearing before the Nicosia District Court. The prosecution did not appear. The applicant, who was not present, was represented by Mr Kadri, who declared that he spoke Greek. The court found that, given the nolle prosequi filed by the Attorney-General, the applicant was discharged.
38. Some time after the applicant's release the Kıbrısli Türkün Sisi magazine published in its 15 December 1995-15 January 1996 issue the following statement by the applicant:
“I grow fruit and vegetables that are irrigated in a market garden to which I hold title. On 2 October 1995, towards 4.30 p.m., I went there to turn off the irrigation system, which is near the greenhouse. As I went past the apparatus, I saw two people coming towards me. When they approached, they said to me in Greek: 'Stay where you are. Police.' I realised that they meant me harm and started to run to the village. As I did so, they began to fire at me with automatic weapons equipped with silencers. I heard a shot fly past my head and immediately dropped to the ground. At that point they set about me. They didn't say anything. They hit me. At some point I looked up and saw that there were ten to twelve of them beating me. They did so for a long time. Then I passed out. At the last minute I received a shock. I don't remember whether they used an electric baton or gas. I was semiconscious. In the meantime, they had dragged me and thrown me into the back of a jeep. When it started up, they continued to hit me. Then they began to torture me somewhere; I didn't know where we were. They said that I was an MİT [the Turkish national intelligence agency] agent, asked me whether there were other agents in the area, from whom I received my orders and all sorts of absurd questions of that kind while continuing to beat me without respite. At some point, a masked man arrived with a cutting instrument, something like a knife. He said that if I didn't speak he would cut my ear off, that if I didn't speak he would drink my blood. I must have blacked out as, when I came to, he was cutting the soles of my feet with a cutting instrument. I couldn't see because I was tied up. I was in such pain that I passed out several times. Each time I came to, the torture would start up again. At some stage they laid me out on my back and pushed something like a bayonet into the upper side of my thigh. I screamed and passed out again. They carried on torturing me like that. I couldn't cry out any more. But they continued to torture me like that. When I came to for the last time, I realised that I was somewhere else. They were no longer hitting or cutting me. I couldn't see out of one eye at all, but with the other, which was injured, I tried to make out where I was.
Later, I was told that after the torture session I was taken to Larnaka Hospital, but the hospital authorities, seeing how serious my condition was, had me transferred to Nicosia Hospital. I have no recollection of that whatsoever. I do not recall being transferred from Larnaka to Nicosia. I have no idea how many days went by in the meantime. They gave me painkilling injections. At some stage they put a table and chairs in my room at the hospital. Two police officers and a judge then came in. When the judge saw the situation he left the room. As he was leaving, I heard him say something about a lawyer. As I was later to learn, it was decided that I was under arrest. Another day the police officers again brought a table and chairs into my room at the hospital. I remember the second time better. I was lying in my bed. I had one hand handcuffed to the bed and an intravenous drip attached to my other arm. My feet were of course also attached to the bed. On this occasion the judge arrived with some lawyers. There were about twenty people in the room, most of them policemen. The judge had ordered that I be held in detention pending trial for eight days so that questioning could continue. As he left the room, the judge turned to me with a look of pity before walking out. ...”
The statement was accompanied by five of the photographs of the applicant's wounds taken on 1 December 1995. At least some of them had been “retouched”.
39. On 5 January 1996 the Ombudsman met the applicant at the Ledra Palace, a hotel situated in the buffer-zone in Nicosia. The applicant was assisted by Mr Kadri.
40. On 17 January 1996 the applicant addressed the following letter to the President of the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT):
“When I was attacked by a team of armed Greek-Cypriot policemen in my field in the buffer-zone, I was first beaten indiscriminately until my senses were numbed and I passed out. When I regained consciousness, I was in a small room surrounded by uniformed men who verbally abused, intimidated and threatened me. There the Greek-Cypriot police asked me to sign a statement to the effect that 'President Rauf Denktaş is intransigent, does not want peace and as a leader is misleading the Turkish-Cypriot people'. In return, I was offered money, a house and a job in what they called 'the free areas', i.e. South Cyprus. I refused without hesitation. They got angry and started hitting and beating me again. I thought I would be beaten to death. I was punched and slapped across my face. Suddenly one policeman held my head tightly and another cut my ear. I totally blacked out. I came to my senses in a hospital. I was on a stretcher, chained and handcuffed. Again several policemen in civilian clothes approached me, their mouths full of profanity and threats, and again started hitting. They also pressed their hands heavily on my eyes, which really hurt. As a result of such pressure my eyes got bloodshot. In the middle of this ordeal a Greek-Cypriot nurse protested. She was shouting: 'This is enough ... do not hit ... he is wounded ... you brought him here for treatment but you are killing him. He is a human being. This is a sin, even if he is a Turk ... do we have the right to treat him this way, a wounded and chained man ...' The police left me and walked towards the nurse. The Greek-Cypriot police were obviously well-trained and professional in torture methods. I don't even recall if and when I gave a statement. But I recall that twice the Greek-Cypriot police made me sign false confession papers accepting Greek-Cypriot accusations. I was branded a 'dangerous smuggler' and a Turkish-Cypriot 'spy'. In the hospital I was in chains, handcuffed to a bed and put on a drip and continuously given painkillers. The pain was excruciating. For a long time my bruised jaw hurt badly. I had difficulty even drinking water, let alone chewing. The Greek-Cypriot court was brought twice to the hospital, once on a Sunday, because they were ashamed to publicly take me to court. ...”
41. On 8 February 1996 the President of the CPT requested the applicant to keep him informed of the Ombudsman's investigation.
42. The Ombudsman, in the course of his investigation, questioned, among others, the police officers involved in the applicant's arrest, the Greek-Cypriot doctors who had examined the applicant and Dr Marquez. On 25 April 1996 he issued his report. In respect of his 5 January 1996 meeting with the applicant he recorded the following:
“At the meeting, Mr Egmez said that late afternoon on 7 October 1995, when he was busy watering his tomatoes in his vegetable garden in the Louridjina region, two strangers in civilian clothes approached him, crossed the 'border' and threw him to the ground without uttering a word. Afterwards, when he next opened his eyes, he found himself in hospital. He said that he had probably received a blow to the head in order to be knocked out. He had not tried to get away. Despite my repeated questions, Mr Egmez has not provided me with details regarding what exactly happened, the circumstances or what had happened to him. He said that he did not remember. He has also said that he has no recollection of having made a deposition on 9 October (two days after his arrest), of being visited by his three lawyers (Mr N. Pelides and two Turkish-Cypriot lawyers) at Larnaka Hospital the following day, 10 October, of making a further deposition that same day or of being transferred to Nicosia Hospital. As I asked him how he had remembered all he had put in the letter [he had addressed to the Ombudsman on 1 December 1995], he replied: 'What I know is that I was in physical pain but when I found myself in hospital and came to I still had blood running down by my eye. That was when I realised I had injuries to my ear, the soles of my feet and elsewhere on my body. The cuts to my feet were so bad that I am still unable to walk.' At the end of our meeting, Mr Egmez handed me some items, including a copy of the magazine entitled Kıbrısli Türkün Sisi, first year, no. 5, 15 December 1995-15 January 1996.”
43. According to the Ombudsman's report, the applicant had been ill-treated on the following two occasions: first, by a group of MMAD officers, amongst whom Mr Andoniou, Mr Koumas and Mr Ioannidis, during his arrest after he had been immobilised and, secondly, in the car that transported him from the place of arrest to Larnaka police headquarters when he was in the company of Mr Andoniou, Mr Ioannidis and Mr Superman. The Ombudsman considered that, on both occasions, the officers involved had acted with unprecedented brutality and without any respect for human life and dignity. The Ombudsman transmitted his report to the Council of Ministers, Parliament and the Attorney-General, in accordance with section 6(9) of the Laws on the Ombudsman.
44. No criminal or other proceedings were instituted against any of the police officers involved in the applicant's arrest.
45. The Government accepted the facts as established by the Commission. They added that it was the AttorneyGeneral who had encouraged the applicant to make the complaint to the Ombudsman and who had then transmitted the complaint, together with Lieutenant-Colonel Tereso's letter of 9 November 1995, to the Ombudsman on 4 December 1995.
46. The applicant questioned the Commission's findings of fact. In his view, the delegates had approached his case with a particular state of mind. He pointed out in this connection that, during the taking of evidence, they treated him as a drug trafficker, as opposed to a person suspected of drug-related offences. The applicant also submitted that the delegates were wrong in admitting vague descriptions of the events by the police officers involved in the incident. Finally, he pointed out that the delegates failed to pursue certain lines of inquiry.
47. The applicant's version was that he was not involved in drug trafficking. He was arrested in the buffer-zone by a large number of police officers in the presence of journalists. The police officers subjected him to physical violence before his admission to hospital in order for him to make a confession. He was under the influence of drugs when questioned. Finally, the decisions remanding him custody did not contain reasons.
48. The applicant further claimed that, as a result of the ill-treatment to which he had been subjected, he was unable to work. He had developed serious psychological problems – for example, he could not submit himself to any external authority –, could not stand and had become bulimic and diabetic. In support of his allegations he submitted two reports by Dr S. Ramadan, a psychiatrist from the northern part, one dated 26 July 1996 to the effect that the applicant suffered from “post-traumatic reaction” and needed lengthy treatment, and another dated 21 December 1998 to the effect that “having considered the treatment applied and the lengthy period that had passed since then, [the doctor was] of the opinion that the applicant's illness had become permanent”.
49. Article 113 § 2 of the Constitution of Cyprus provides:
“The Attorney-General of the Republic shall have power, exercisable at his discretion in the public interest, to institute, conduct, take over and continue or discontinue any proceedings of an offence against any person in the Republic. Such power may be exercised by him in person or by officers subordinate to him acting under him and in accordance with his instructions.”
50. Article 172 of the Constitution provides:
“The Republic shall be liable for any wrongful act or omission causing damage committed in the exercise or purported exercise of the duties of officers or authorities of the Republic. A law shall regulate such liability.”
51. Section 6 of the 1991 to 1995 Laws on the Ombudsman provides:
“(7) If at the end of an inquiry ... the Ombudsman forms the conclusion that prejudice or injustice has been caused to the person concerned, he includes in his report a recommendation to the competent authority for the reparation of the prejudice or the redressing of the injustice ...”
“(9) Any other provisions in this Law notwithstanding, if at the end of the inquiry ... the Ombudsman reaches the conclusion that the action complained of violated the human rights of the person concerned and could constitute a criminal offence, he transmits a copy of [his] report ... to the Council of Ministers, the House of Representatives and the Attorney-General of the Republic.”
52. Section 9(5) of the 1991 to 1995 Laws on the Ombudsman provides:
“No testimony or reply to a question or statement given or made by an official or any other person in the course of an inquiry by the Ombudsman can be used as evidence against another person in court or in another inquiry or procedure.”
53. In most criminal cases the Attorney-General gives his consent for a preliminary inquiry not to take place. In such cases, a copy of the statement of each prosecution witness is served on the accused or his lawyer. The court then decides whether to commit or not without a preliminary inquiry.
VIOLATED_ARTICLES: 13
3
NON_VIOLATED_ARTICLES: 5
NON_VIOLATED_PARAGRAPHS: 5-1
5-2
5-3
5-4


ITEMID: 001-106862
LANGUAGEISOCODE: ENG
RESPONDENT: SVN
BRANCH: ADMISSIBILITY
DATE: 2011
DOCNAME: LALIC AND OTHERS v. SLOVENIA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Angelika Nußberger;Dean Spielmann;Elisabet Fura;Ganna Yudkivska;Karel Jungwiert;Mark Villiger
TEXT: The applicants, Mr Rajko Lalič, Mr Roman Tivadar, Mr Drago Prajner, Mr Albin Božičnik, Mr Sašo Tuksar, Mr Jasmin Kostevc, Mr Zoran Dedić, Mr Jože Kac, Mr Nebojša Šegota, and Mr Damir Glavica, whose birthdates are indicated in the annex, are Slovenian nationals. They were represented before the Court by Odvetniška Družba Matoz O.P. D.O.O., a law firm practising in Koper. The Slovenian Government (“the Government”) were represented by their Agent, Mrs T. Mihelič Žitko, State Attorney.
The facts of the case, as submitted by the parties, may be summarised as follows.
The applicants served, or are currently serving, sentences in the closed section of Dob Prison. This prison, which is the largest in Slovenia, mainly accommodates adult male prisoners who have been sentenced to a term of imprisonment of no less than eighteen months. It has an official capacity of 233 inmates, but held 435 and 412 prisoners in 2009 and 2010 respectively. The closed section of the prison consists of four independent buildings (Blocks 1 to 4). Block 1 contains a reception area for new prisoners, hospital cells and cells subject to a stricter regime. Blocks 2, 3 and 4 contain large and small cells and are very similar in terms of their facilities and regime.
A typical large cell measures slightly less than 60 square metres and contains a bed, a wardrobe and a chair for each of the inmates, as well as a table and radiators. After obtaining prior approval, any inmate may also bring in a television, a cooker or other electronic devices, including a computer. The cells also have shades on the windows and a ceiling fan. It transpires from the prison plan that one wing typically contains two large cells. The cells share a hallway measuring about 40 square metres and a TV room measuring about 26 square metres. A lavatory, measuring about 9 square metres, is attached to each cell. It has a window measuring 140 x 80 centimetres. The lavatory contains two washbasins, a foot washbasin, a urinal and a shower with a partition, as well as a toilet, which is screened off in a separated area, the door to which can be locked. A typical large cell has three windows measuring 170 x 170 centimetres each. The TV room and hallway have the same number and size of windows. Inmates are free to open and close the windows. Smoking is prohibited in the cell but not in the hallway, which contains a smoke extraction machine.
The applicant was held in Dob Prison between 19 September 2007 and 11 February 2011. He was held in Unit 3 of the prison, in cell no. 6, which measured 59.25 square metres and accommodated fifteen prisoners. The personal space available to him was therefore almost 4 square metres.
Other aspects of the conditions in the cell, lavatory and common areas were almost identical to those described above with regard to a typical large cell.
The applicant has been held in Unit 4 of Dob Prison since 5 January 2009. His term of imprisonment ends on 5 July 2012. Until 2 August 2010, the applicant was held in cell no 3, which measured 59.57 square metres and held seventeen inmates (3.5 square metres of personal space available to each inmate). Subsequently, he was transferred to cell no. 6, which measures 59.25 square metres and has accommodated fifteen inmates (3.9 square metres of personal space available to each inmate).
Other aspects of the conditions in the cells, lavatories and common areas are almost identical to those described above with regard to a typical large cell.
The applicant has been held in Block 4 of Dob Prison since 24 July 2007. His term of imprisonment ends on 13 September 2013. He has been held in cell no. 3, which measures 59.57 square metres and has accommodated seventeen inmates (3.5 square metres of personal space available to each inmate).
Other aspects of the conditions in the cell, lavatory and common areas are almost identical to those described above with regard to a typical large cell.
The applicant has been held in Dob Prison since 25 July 2007. His term of imprisonment ends on 4 November 2012. He has been held in Block 2, in cell no. 1, which measures 59.89 square metres and has accommodated sixteen inmates (3.7 square metres of personal space available to each inmate). However, during the period between 1 July and 7 December 2009 the applicant was placed under a stricter regime in Block 1 in cell no. 34, which measured 32.22 square metres and held four inmates (8 square metres of personal space available to each inmate).
As regards cell no. 1 in Block 2, other aspects of the conditions in the cell, lavatory and common areas are almost identical to those described with regard to a typical large cell. As regards cell no. 34 in Block 1, it had four windows measuring 170 x 130 centimetres each and access to a hallway of about 50 square metres. A lavatory, measuring about 6.5 square metres, was attached to the cell. It had a window of the same size as that of the cell and contained two wash basins and a shower with a partition, as well as a toilet in a separate closed area. As with all cells in Block 1, the inmates could upon prior approval bring in a television, a cooker or other electronic devices, including a computer.
The applicant was held in Block 4 of Dob Prison between 13 May 2009 and 7 September 2011. He was held in cell no. 8, which measured 58.94 square metres and held seventeen inmates (3.5 square metres of personal space available to each inmate).
Other aspects of the conditions in the cell, lavatory and common areas were almost identical to those described with regard to a typical large cell.
The applicant was held in Block 2 of Dob Prison in the period between 23 July 2008 and 23 December 2009. Until 23 June 2009, he was held in cell no. 5, which measured 59.25 square metres and held sixteen inmates (3.7 square metres of personal space available to each inmate). Subsequently, he was transferred to cell no. 7/1, which measured 20.67 square metres and held four inmates (5.2 square metres of personal space available to each inmate).
As regards cell no. 5, other aspects of the conditions in the cell, lavatory and common areas were almost identical to those described with regard to a typical large cell. Cell no. 7/1 differed in that the inmates shared a lavatory, measuring about 9 square metres, with inmates from two smaller cells situated in the same wing, which also contained a common area of about 10 square metres to which all three cells had access. The cell had one window measuring 170 x 170 centimetres. There was no TV room available to inmates held in cell no. 7/1.
The applicant was held in Block 2 of Dob Prison between 9 June 2009 and 31 December 2010. Until 8 June 2010 he was held in cell no. 1, which measured 59.89 square metres and held sixteen inmates (3.7 square metres of personal space available to each inmate). Subsequently, he was transferred to cell no. 8/3, which was designated a special drug-free cell and which measured 20.67 square metres and accommodated four inmates (5.2 square metres of personal space for each inmate).
As regards cell no. 1, other aspects of the conditions in the cell, lavatory and common areas were almost identical to those described with regard to a typical large cell. Cell no. 8/3 differed in that the inmates shared the lavatory with inmates from four smaller cells situated in the same wing, which also contained a common area of about 10 square metres to which all five cells had access. The cell had one window measuring 170 x 170 centimetres. There was no TV room available to inmates held in cell no 8/3.
The applicant was held in Block 3 of Dob Prison in the period between 3 May 2006 and 3 August 2010. Until 7 August 2009 he was held in cell no. 2, which measured 59.89 square metres and held fourteen inmates (4.3 square metres of personal space for each inmate). Subsequently, the applicant was transferred to cell no. 7, which was designated a special drug-free cell and which measured 59.25 square metres and accommodated eleven inmates (5.4 square metres of personal space for each inmate).
Other aspects of the conditions in the cells, lavatories and common areas were almost identical as those described with regard to a typical large cell.
The applicant has been held in Block 3 of Dob Prison since 3 July 2008. His term of imprisonment ends on 15 November 2015. Until 2 June 2010 he was held in cell no. 3, which measured 59.89 square metres and held sixteen inmates (3.7 square metres of personal space for each inmate). Subsequently, the applicant was transferred to cell no. 9, which measures 33.23 square metres and has accommodated four inmates (8.3 square metres of personal space available to each inmate).
As regards cell no. 3, other aspects of the conditions in the cells, lavatories and common areas were almost identical to those described with regard to a typical large cell. As regards cell no. 9, it is situated in the non-smoking wing, in which smoking is also prohibited in the hallway. It has three windows measuring 160 x 100 centimetres each, access to a hallway of 54 square metres, a lavatory measuring 4.68 square metres and containing a toilet in an area separated by a door, two washbasins and a shower with a partition. The lavatory also has a window measuring 140 x 80 square metres.
The applicant has been held in Dob Prison since 23 August 2004. His term of imprisonment ends on 30 January 2013. Until 2 November 2005 he was held in Block 4 in cell no. 7, which measured 58.94 square metres and accommodated fifteen inmates (3.9 square metres of personal space for each inmate). In the period between 3 November and 1 December 2005, he was held in Block 1 in cell no. 20, where he was undergoing detoxification as part of a programme of treatment to which he had agreed. The cell, in which he was detained by himself, measured 7.39 square metres. Subsequently, the applicant was transferred to cell no. 6 in Block 4, which measures 59.25 square metres and has accommodated fifteen inmates (3.9 square metres of personal space for each inmate).
As regards cells nos. 6 and 7, other aspects of the conditions in the cells, lavatories and common areas were almost identical to those described with regard to a typical large cell. As regards cell no. 20 in Block 1, it had one window measuring 100 x 130 centimetres and contained a bed, wardrobe, table and a chair, as well as a toilet and a basin. The applicant had access to a shower room measuring about 7 square metres, which he shared with thirteen inmates held in other single-occupancy cells.
According to the Prison Rules, detainees are woken at 6 a.m. and lights out is at 9.45 p.m. However, according to the Government, cells are only locked at 11 p.m., remaining so until 6 a.m. in all blocks with the exception of Block 1, where cells are locked all the time. Moreover, the cells in Blocks 2, 3, and 4 remain open longer during the weekend in order to allow inmates to continue watching TV late in the evening. When the cells are unlocked, inmates can freely move around all areas to which they have access, namely the hallway, TV room, lavatory and other cells in the same wing.
The inmates in Blocks 2, 3, and 4 may spend two hours per day during the week and three hours per day during weekends in the outdoor yard, which, prior to 10 November 2009, measured 8,000 square metres. Afterwards, due to construction work on new prison facilities, the outdoor area available to inmates has been reduced to 1,880 square metres. However, the prisoners have been, since the aforementioned date, using the yard in shifts. The yard includes, inter alia, football and basketball courts, benches, shower facilities with warm water and a small roof measuring 12 square metres.
In Block 1 the cells are locked throughout the day. The inmates are allowed to leave their cells for only two hours a day for outdoor exercise and three hours a week for indoor exercise. The outdoor yard measures 1,379 square metres and is divided into four areas, each of which may be used by two inmates simultaneously. 66 square metres of the yard is covered by a roof. The yard includes a small basketball court, benches and tables.
Each block of the prison also has a gym, measuring about 60 square metres. In Block 1 every prisoner may, in principle, use the gym for three hours a week. In other blocks prisoners may use the gym every day upon their request.
The prison provides courses for, inter alia, primary education and secondary education, such as food preparation and catering classes. Prisoners also have the opportunity to work at the Pohorje Public Institute (agricultural activities and metal work) or within the prison. If unfit for work, prisoners may attend work therapy sessions. In 2008 and 2009 about 180 prisoners worked in the aforementioned institute and about fifty worked within the prison. About forty and fifty prisoners, respectively, participated in work therapy.
According to the information submitted by the Government, the applicants Mr Lalić and Mr Tivadar worked at the Pohorje Public Institute for eight hours per day since 19 November 2007 and 12 January 2009 respectively. Mr Lalić attended food preparation and catering courses since February 2008. Mr Tuksar worked for the aforementioned institute for four hours per day since 5 October 2009 and had taken yoga classes in the prison. Mr Božičnik took part in leisure activities (playing the accordion) every day. Mr Dedić attended primary education classes in the prison for two hours per day since October 2009. Mr Kac worked in the prison bakery for eight hours per day in the period between 13 June 2006 and 3 August 2010. Mr Šegota participated in leisure activities (clay modelling) in the period between 26 November 2008 and 12 January 2009 once a week for three hours. Since the latter date, he has worked for eight hours per day at the Pohorje Public Institute. Mr Glavica has attended work therapy sessions for five hours daily.
Prisoners who work or who attend work therapy also earn personal leave, which they are able to spend in special apartments in the prison which include a kitchen and a television. During their personal leave, they are subject to a more lenient regime as regards waking hours and have broader access to leisure activities.
Inmates in all blocks, except Block 1, eat their meals in the prison canteen.
An infirmary operates in the prison and is subject to the general regime of the national health-care system. It operates four days a week. A dental surgery operates two days a week. A psychiatric clinic operates two days a week. During the relevant time, there had been no waiting period for an appointment at the infirmary or the psychiatric clinic, but there had been, except for urgent cases, a waiting period of two to three months for an appointment with the dentist.
All prisoners undergo a medical examination upon their arrival. On the basis of this examination, prisoners may be referred to a hospital to undergo a test to ascertain whether they have been infected with hepatitis B and C and/or HIV.
The prison also provides for psychological assistance. Consultations are carried out during the first week upon the arrival of a new prisoner and later depending on need. The waiting period for a consultation is three to four days, except for urgent cases. Drug users are offered medical (including methadone substitution) treatment and therapeutic help in accordance with a specialised drug treatment programme. Prisoners who successfully undergo methadone substitution treatment are able to undergo detoxification, which normally takes three to four weeks. Further rehabilitation of previous drug users is provided in the drug-free sections of the prison, in which only those prisoners who are no longer dependant on drugs and who are no longer undergoing opiate replacement therapy may be allocated.
Prisoners are entitled to receive visits from their family members lasting no less than one hour at least twice a week. They are entitled to make telephone calls, lasting ten minutes, twice a week. Until 20 November 2009, when new telephone booths were installed, one telephone was available for use by all the prisoners from one block (namely, up to about 130 prisoners). However, after that date almost every wing of the four blocks has had one telephone booth, which is only used by the prisoners held in that wing (up to about thirty prisoners).
For relevant domestic law and practice see paragraphs 33-35 and 38-47 of Štrucl and Others v. Slovenia, nos. 5903/10, 6003/10 and 6544/10, 27 September 2011, and paragraphs 34-36 of Mandić and Jović v. Slovenia, nos. 5774/10 and 5985/10, 27 September 2011. In addition, the judgment of the Grosuplje Local Court delivered on 9 September 2010 is relevant to the present case. In that judgment, the aforementioned court rejected a claim under section 179 of the Civil Code concerning damage allegedly sustained due to inadequate living conditions in Dob Prison. The claim was lodged by a prisoner who was held in Block 3 in a cell of about 60 square metres together with 16 inmates. The court, which also heard a number of witnesses from the prison, found as established that the claimant, apart from his cell and the lavatories, also had access to the TV room and hallway during the day, between 6 a.m. and 11 p.m. It also found that chairs and tables were situated in the hallway and that about half of the prison population was working eight hours a day, which reduced the number of those who stayed in the cells during that time. The court acknowledged that the situation as regards overcrowding (number of inmates held in the cells) was in breach of the domestic regulation providing that no more than eight prisoners should be held in one cell, and found that the State, by virtue of paragraph 1 of section 148 of the Civil Code, would be responsible to prisoners for any damage sustained on that account. However, the court, referring to, inter alia, Sulejmanovic v. Italy, no. 22635/03, 16 July 2009, concluded that the situation, though difficult, was not such as to violate the claimant’s personal rights. No legally recognized damage had therefore been sustained by the claimant. The court also assessed the claimant’s allegations concerning sanitary conditions, access to the telephone, nutrition and cohabitation with persons affected by transmissible diseases. These aspects of the prison’s conditions were found not to be in breach of the law.
The Ljubljana Higher Court upheld the above judgment on 23 March 2011. It found that the claimant’s claim contained allegations of torture and breach of one’s right to dignity. It endorsed the lower court’s legal qualification and factual findings. The Higher Court also referred to the CPT’s report of 2002, which, in its opinion, did not point to serious violations. Acknowledging that the situation was not perfect and could cause discomfort to the claimant, the Higher Court concluded that, in the aggregate, the conditions did not amount to undignified treatment or torture.
The relevant extracts from the general reports by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (“the CPT”) are set out in Mandić and Jović, cited above, §§ 38-40.
The CPT visited Dob Prison in 1995 and 2001. In 1995 the number of prisoners held in Dob Prison was significantly lower than it currently is. 208 prisoners were held in the closed section of Dob Prison (see document CPT/Inf (96) 18). After the visit in 2001, the following recommendations were made to the Slovenian authorities (CPT/Inf (2002) 36):
“i. Dob Prison
56. ... The CPT recommends that efforts be made to reduce the occupancy rate of the 60 m² dormitories, having regard to the new minimum standards for prison accommodation. Further, the Committee wishes to reiterate that smaller accommodation units for prisoner[s] are far preferable to large units such as the 60 m² dormitories seen in Dob Prison.
...”
In the chapter concerning the living conditions in Slovenian prisons, Annual Reports by the Administration for the Execution of Prison Sentences include information on prison overcrowding. The rate of overcrowding is calculated on the basis of the domestic statutory requirement for the imprisonment of sentenced individuals, which is 9 square metres for a single-occupancy cell and 7 square metres per person in a shared cell. According to the 2009 and 2010 reports, nationwide prison occupancy exceeded the official capacity by 29 and 23 percent respectively. Almost all closed prison facilities accommodating male prisoners were overcrowded. Dob Prison, with an official capacity of 233 prisoners, held on average 435 and 412 prisoners in 2009 and 2010 respectively. This meant that the level of overcrowding was 187 and 177 percent respectively (2009 Report, pp. 97 and 98; 2010 Report, pp. 98 and 99). According to the 2008 Report, the level of overcrowding in 2007 and 2008 was 170 and 190 percent respectively (p. 98). The 2010 Report also noted (p. 100):
“... Poor living conditions are coupled with overcrowding, which is most present in the large prisons in Slovenia: Dob, Ljubljana and Maribor prisons. The urgency of improving living conditions has been stressed by the Human Rights Ombudsman, the CPT and other institutions.
... It is understandable that such living conditions adversely affect prisoners’ hygiene and privacy. Poor living conditions sometimes also obstruct the exercise of prisoners’ rights (work, exercise and recreation, [attending] religious services). In some establishments, prisoners on remand live in worse conditions than sentenced prisoners. The outdated and inadequate furniture in living rooms and other areas presents an additional problem...”
On 17 and 18 March 2009 the Ombudsman for Human Rights conducted a visit to Dob Prison under the Optional Protocol to the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment and issued a report, which, as far as relevant, reads as follows:
“... the official capacity is still 296 prisoners, including 233 prisoners in the closed section, 40 prisoners in the semi-open section and 23 prisoners in the open section. At the time of our visit, the establishment held 497 prisoners, including 433 in the closed section, which is 200 beyond the official capacity. The prison administration has stressed that it has previously been faced with an even higher occupancy rate. During a certain period in 2008, the prison held 526 prisoners...
We found that since our last visit the overcrowding has only intensified. This raises concerns. The prison administration has agreed with this finding and stressed that it is of particular concern that the overcrowding cannot be reduced by placing prisoners in other establishments, as the number of prisoners is rising everywhere. On the other hand, we welcome the fact that preparatory work on the renovation and expansion of the prison has finally started. The capacity of the prison should be increased to 522 beds and the inmates should be accommodated in single or three-bed cells. Large multi-occupancy cells should be abandoned. The office [of the Ombudsman for Human Rights] expects and hopes that the progress of the renovation of the prison will lead to an improvement in the living conditions therein.
We have again stressed that in most cases the furniture in the rooms was outdated and urgent repairs and replacements were therefore needed
The closed section had sufficient outside areas at the time of the visit ...
According to the prison administration, illegal drugs present a serious problem. About half of the prisoners are addicted to drugs or alcohol... The prison administration further explained that the operation of the drug-free section, [one of] which was located in every block (except Block 1), was also restricted due to the fact that there was only one therapist responsible for the programme ...”
In its 2007 annual report, the Ombudsman for Human Rights noted:
“In the closed section of Dob Prison there are still only 31 single cells and only a few cells with two or three beds available. Large multi-occupancy cells are [the norm], in particular those measuring 60 square metres and accommodating up to 17 prisoners. Each inmate has only 3.5 square metres of personal space, which falls short of the standard of 7 square metres.... It is true that this standard was intended for new facilities or renovations, where possible. However, as many years have already passed since the adoption of the Regulation on the Execution of Prison Sentences [providing the aforementioned standard], there should be a commitment that this standard is also complied with in the largest prison in the country. Likewise, one cannot ignore section 42 of the Enforcement of Criminal Sanctions Act, which states that inmates should in principle be accommodated in a single cell, and that shared cells should have eight beds at most. The prison conditions in which the prisoners live are therefore unacceptable and in breach of the law.
The shared cell with seventeen beds has only one lavatory.... During the morning rush, this (the facilities in the lavatory) is insufficient for the number of inmates whom it is intended to serve. The number of inmates simultaneously using the lavatory is also restricted by its size. [The ombudsman’s office] was therefore not surprised to hear complaints that inmates had to wait two hours to use the shower and 45 minutes to use the toilet, which we believe is also inhumane.”


ITEMID: 001-71885
LANGUAGEISOCODE: ENG
RESPONDENT: DNK
BRANCH: ADMISSIBILITY
DATE: 2005
DOCNAME: NORDISK FILM & TV A/S v. DENMARK
IMPORTANCE: 1
CONCLUSION: Inadmissible
JUDGES: Christos Rozakis
TEXT: The applicant, Nordisk Film & TV A/S, is a private limited company, which is domiciled in Valby, Denmark. It is represented before the Court by Mr Tyge Trier, a lawyer practising in Copenhagen.
The applicant company is a television producer. In October 1999 its documentary unit called “Fak2eren” decided to produce a programme investigating paedophilia in Denmark which was to be broadcast on national television. In this connection the journalists employed by the applicant company unsuccessfully sought permission from an association named “The Paedophile Association” to attend its meetings or conduct interviews with its members.
The said association was formed “to work toward the development of paedophiles’ sense of responsibility towards children” and it holds regular meetings, but they are generally closed to the public and the media. Its members include convicted sexual offenders. The association was not illegal under Danish law, a fact which had been the subject of public debate.
Wishing to probe into the Paedophile Association’s activities, a journalist, JB, using the pseudonym “Jacob Andersen”, went undercover, posing as a member. In the course of his year long membership “Jacob Andersen” participated in quasi-public meetings, was invited to so-called “private meetings” and was befriended by two other members “Mogens” and “Per”. These two made many incriminating statements regarding the realities of paedophilia in both Denmark and India, including advice on how to induce a child to chat over the internet, comments about how difficult it was to procure sexual acts from children in Denmark, and how easy on the other hand it was to procure children in Eastern Europe and India. “Mogens” recommended to “Jacob Andersen” a specific hotel, run by a Danish paedophile in India, at which “Mogens” had had sex with Indian boys in the past. JB visited the hotel in India and interviewed an Indian boy about his knowledge of “Mogens”. Also, in front of the hotel, a young Indian boy was offering sexual services. JB made numerous notes and camera recordings, most of them hidden.
Before the programme was to be broadcast on 30 October 2000, the Paedophile Association and its members who had been recorded by the hidden camera were contacted by the applicant company and given assurance that they would remain anonymous, when the documentary was shown. Thus, false names would be used and the members’ faces and voices would be blurred.
The association unsuccessfully sought an injunction to prevent the broadcast of the programme.
The day after the broadcast of the programme, on 31 October 2000, the person named “Mogens” was arrested and charged with sexual offences under sections 222 (1) taken together with sections 224 and 225 of the Penal Code (Straffeloven). The Copenhagen Police (Københavns Politi) had taken an interest in him before the broadcast of the programme and could therefore identify him. Their request that he be detained on remand was refused by the City Court, which found no specific reason to believe that “Mogens” would impede the investigation, notably because the information leading to the charges against him on the whole appeared from the programme. Thus, “Mogens” was released on the same day. During their further investigation, which also included the person in the programme named “Per”, the Copenhagen Police requested that the un-shown portions of the recordings made by JB be disclosed. JB, and the editor and head of the applicant company’s documentary unit, refused the request following which the public prosecution requested a court order compelling the applicant company to hand over the un-shown footage to the police.
By decision of 12 February 2001 the Copenhagen City Court (Københavns Byret) refused to grant the requested court order having regard to the need of the media to be able to protect their sources. Also, it found that the raw material had little or no evidential value, as it essentially covered the same matter as the broadcast footage. Moreover, it referred to section 172 of the Administration of Justice Act (Retsplejeloven) and Article 10 of the Convention.
On appeal, the decision was upheld on 8 June 2001 by the High Court of Eastern Denmark (Østre Landsret).
Having been granted leave to appeal, the public prosecution brought the case before the Supreme Court (Højesteret), which on 29 August 2002 found against the applicant company, so that the latter was compelled to hand over limited specified unedited footage and notes which related solely to “Mogens” and his activities in Denmark and India, including the recordings made outside the Indian hotel of the Indian boy. However, the recordings and notes were exempted from the order whenever the handover would entail a risk of revealing the identity of any of three named persons, namely “the victim [not the Indian boy], the police officer and the hotel manager’s mother”. The remainder of the unedited footage was to remain protected. In its decision the Supreme Court stated as follows:
“The Supreme Court agrees that presumably the non-edited recordings and the notes made by the journalist JB may assist the investigation and production of evidence in the case against “Mogens” and that therefore they may serve as evidence within the meaning of section 804, subsection 1, of the Administration of Justice Act.
It is undisputed that in connection with the recording, three of the participants - the victim, the police officer and the hotel manager’s mother - were promised that they could participate without the possibility of being identified, thus their identities are protected by the right of exemption from the duty to testify as a witness, pursuant to section 172, subsection 2(ii) first sentence, of the Administration of Justice Act.
The charge against “Mogens” concerns a criminal offence which is punishable with four years’ imprisonment or more. The charge includes several instances of sexual relations other than intercourse, over a long time, with boys younger than 15 years of age, and the Supreme Court finds that the case concerns a criminal act, which is of a serious nature. However, having regard to the information about the content of the material which is related to the three participants mentioned [the victim, the police officer and the hotel manager’s mother] compared with the investigation possibilities otherwise available, it cannot be presumed that the material is of vital importance for resolving the case. In these circumstances, the Supreme Court agrees that the conditions stated in section 804, subsection 4, and section 172, subsection 5, of the Administration of Justice Act are not fulfilled for issuing an order [to compel the applicant company to disclose or hand over the material which is related to those three participants] contrary to the right of exemption from the duty to give evidence.
The recordings of the members of the Paedophile Association during its meetings and of “Mogens” and “Per” were done with a hidden camera. Hence a promise of anonymity could only be given after the recordings. The media’s extensive privilege of protecting their sources by virtue of section 172 of the Administration of Justice Act has been introduced in consideration of the sources’ and the participants’ opportunity to exercise the freedom of speech, since the promise of anonymity may be a vital premise for supplying a journalist with information. Thus, the main purpose of the rules concerning the right of exemption from the duty to testify as a witness is to protect persons who, relying on a promise of anonymity, agree to participate in a programme. Even though, in compliance with the rules on press ethics and the use of a hidden camera, [the applicant company] has subsequently given the participants a promise and has kept this promise in the programme, section 172, subsection 2(ii), of the Administration of Justice Act cannot, according to its wording and purpose, extend to a right of exemption from the duty to testify as a witness as regards the recordings in question. Nor can section 172, subsection 2(i).
The programme contains recordings made outside an Indian hotel of a boy with whom “Mogens” allegedly had had [sexual] relations. The boy’s name does not appear and reasonable precautions have been taken to cover his identity, but this is not sufficient to establish a right of exemption from the duty to give evidence according to section 172, subsection 2, of the Administration of Justice Act.
A court order pursuant to section 804 of the Administration of Justice Act may not be issued if it is disproportionate to the importance of the case and the disadvantage which such a ruling might entail (section 805, subsection 1, of the Administration of Justice Act). In this balancing exercise, regard must be had to the nature of the offence, the value which the items may have for the investigation of the case, and considerations for the media’s working conditions as regards Article 10 of the Convention. In these circumstances, the Supreme Court finds that a court order should be limited to those recordings in which “Mogens” or the Indian boy participates, and JB’s notes which relate thereto.
... [The Supreme Court] orders that [the applicant company] hand over those parts of the non-edited tapes with recording for the programme “Danish Paedophiles” in which “Mogens” or the Indian boy participates. Also, [the applicant company] must hand over notes made by the journalist JB in connection with the said recordings. However, the recordings and notes may be exempted from the handover order whenever that would entail a risk of revealing the identity of the victim, the police officer or the hotel manager’s mother.”
On 1 April 2003 the Copenhagen Police decided to discontinue its investigation against “Mogens” and drop the charges against him.
The provisions of the Administration of Justice Act (Retsplejeloven), in so far as relevant, read as follows:
1. Editors and editorial staff employed by a publication covered by section 1, subsection 1, of the Media Responsibility Act (Medieansvarsloven) are under no obligation to testify as a witness about:
the identity of the source of information or the author of an article, or the person who has taken a photograph or procured another figurative production. If publication is made, it is a condition for exemption from the duty to testify as a witness that the source, author, photographer or producer is not identified in the publication.
the identity of a person whose picture is shown, or who is the subject of conversation, when such persons have been promised anonymity. If publication is made, exemption from the duty to testify as a witness applies as long as the identity [of the relevant persons] does not appear from the text.
2. Editors and editorial staff employed by a radio or a television enterprise covered by section 1, subsection 2, of the Media Responsibility Act are under no obligation to testify as a witness about:
the identity of the source of information or the author of a work, or the person who has taken a photograph or procured another figurative production. If the information, work etc. is broadcast, it is a condition for exemption from the duty to testify as a witness that the source, author, photographer or producer has not been identified in the programme.
the identity of participants who were promised that they could participate without the possibility of being identified. If the programme is broadcast, it is a condition for exemption from the duty to testify as a witness that the name of the relevant persons does not appear, and that reasonable precautions have been taken to conceal their identity.
3. ...
4. ...
5. If the case concerns a criminal act of a serious nature, which according to the law is punishable with four years’ imprisonment or more, the court may compel the persons mentioned under subsections 1-4 to testify as witnesses, if such testimony is considered to be of vital importance for resolving the case, and the interest in resolving the case obviously overrides the mass media’s need to protect their sources.
6....
1. As part of the investigation of a criminal offence, subject to public prosecution, any person who is not a suspect may be compelled to disclose or hand over items (edition) if there is reason to assume that such an item, which that person has possession of, may serve as evidence, ought to be seized, or has been removed during the criminal act from someone who may claim it back...
2. ...
3. ...
4. An order to disclose or hand over items may not be issued if this would result in disclosure of matters about which the person would be excluded from or exempted from testifying as a witness.
5. ...
1. A seizure may not be made, nor may a disclosure or a handover be ordered, if that would be disproportionate to the importance of the case and the loss and disadvantage which such a ruling presumably may entail.
2. ...
3. ...
Several international instruments concern the protection of journalistic sources, among others, the Resolution on Journalistic Freedoms and Human Rights, adopted at the 4th European Ministerial Conference on Mass Media Policy (Prague, 7-8 December 1994) and Resolution on the Confidentiality of Journalists’ Sources by the European Parliament, 18 January 1994, Official Journal of the European Communities No. C 44/34).
Moreover, Recommendation No. R(2000) 7 on the right of journalists not to disclose their sources of information was adopted by the Committee of Ministers on 8 March 2000 and stated, in so far as relevant:
[The Committee of Ministers] Recommends to the governments of member States:
1. to implement in their domestic law and practice the principles appended to this recommendation,
2. to disseminate widely this recommendation and its appended principles, where appropriate accompanied by a translation, and
3. to bring them in particular to the attention of public authorities, police authorities and the judiciary as well as to make them available to journalists, the media and their professional organisations.
Appendix to Recommendation No. R (2000) 7
Principles concerning the right of journalists not to disclose their sources of information
Definitions
For the purposes of this Recommendation:
a. the term "journalist" means any natural or legal person who is regularly or professionally engaged in the collection and dissemination of information to the public via any means of mass communication;
b. the term "information" means any statement of fact, opinion or idea in the form of text, sound and/or picture;
c. the term "source" means any person who provides information to a journalist;
d. the term "information identifying a source" means, as far as this is likely to lead to the identification of a source:
i. the name and personal data as well as voice and image of a source, ii. the factual circumstances of acquiring information from a source by a journalist, iii. the unpublished content of the information provided by a source to a journalist, and iv. personal data of journalists and their employers related to their professional work.
Principle 1 (Right of non-disclosure of journalists)
Domestic law and practice in member States should provide for explicit and clear protection of the right of journalists not to disclose information identifying a source in accordance with Article 10 of the Convention for the Protection of Human Rights and Fundamental Freedoms (hereinafter: the Convention) and the principles established herein, which are to be considered as minimum standards for the respect of this right.
Principle 2 (Right of non-disclosure of other persons)
Other persons who, by their professional relations with journalists, acquire knowledge of information identifying a source through the collection, editorial processing or dissemination of this information, should equally be protected under the principles established herein.
Principle 3 (Limits to the right of non-disclosure)
a. The right of journalists not to disclose information identifying a source must not be subject to other restrictions than those mentioned in Article 10, paragraph 2 of the Convention. In determining whether a legitimate interest in a disclosure falling within the scope of Article 10, paragraph 2 of the Convention outweighs the public interest in not disclosing information identifying a source, competent authorities of member States shall pay particular regard to the importance of the right of non-disclosure and the pre-eminence given to it in the case-law of the European Court of Human Rights, and may only order a disclosure if, subject to paragraph b, there exists an overriding requirement in the public interest and if circumstances are of a sufficiently vital and serious nature.
b. The disclosure of information identifying a source should not be deemed necessary unless it can be convincingly established that:
i. reasonable alternative measures to the disclosure do not exist or have been exhausted by the persons or public authorities that seek the disclosure, and
ii. the legitimate interest in the disclosure clearly outweighs the public interest in the non-disclosure, bearing in mind that:
- an overriding requirement of the need for disclosure is proved, - the circumstances are of a sufficiently vital and serious nature, - the necessity of the disclosure is identified as responding to a pressing social need, and - member States enjoy a certain margin of appreciation in assessing this need, but this margin goes hand in hand with the supervision by the European Court of Human Rights.
c. The above requirements should be applied at all stages of any proceedings where the right of non-disclosure might be invoked.
Principle 4 (Alternative evidence to journalists’ sources)
In legal proceedings against a journalist on grounds of an alleged infringement of the honour or reputation of a person, authorities should consider, for the purpose of establishing the truth or otherwise of the allegation, all evidence which is available to them under national procedural law and may not require for that purpose the disclosure of information identifying a source by the journalist.
Principle 5 (Conditions concerning disclosures)
a. The motion or request for initiating any action by competent authorities aimed at the disclosure of information identifying a source should only be introduced by persons or public authorities that have a direct legitimate interest in the disclosure.
b. Journalists should be informed by the competent authorities of their right not to disclose information identifying a source as well as of the limits of this right before a disclosure is requested.
c. Sanctions against journalists for not disclosing information identifying a source should only be imposed by judicial authorities during court proceedings which allow for a hearing of the journalists concerned in accordance with Article 6 of the Convention.
d. Journalists should have the right to have the imposition of a sanction for not disclosing their information identifying a source reviewed by another judicial authority.
e. Where journalists respond to a request or order to disclose information identifying a source, the competent authorities should consider applying measures to limit the extent of a disclosure, for example by excluding the public from the disclosure with due respect to Article 6 of the Convention, where relevant, and by themselves respecting the confidentiality of such a disclosure.
Principle 6 (Interception of communication, surveillance and judicial search and seizure)
a. The following measures should not be applied if their purpose is to circumvent the right of journalists, under the terms of these principles, not to disclose information identifying a source:
i. interception orders or actions concerning communication or correspondence of journalists or their employers,
ii. surveillance orders or actions concerning journalists, their contacts or their employers, or
iii. search or seizure orders or actions concerning the private or business premises, belongings or correspondence of journalists or their employers or personal data related to their professional work.
b. Where information identifying a source has been properly obtained by police or judicial authorities by any of the above actions, although this might not have been the purpose of these actions, measures should be taken to prevent the subsequent use of this information as evidence before courts, unless the disclosure would be justified under Principle 3.
Principle 7 (Protection against self-incrimination)
The principles established herein shall not in any way limit national laws on the protection against self-incrimination in criminal proceedings, and journalists should, as far as such laws apply, enjoy such protection with regard to the disclosure of information identifying a source.
For the precise application of the Recommendation, the explanatory notes specified the meaning of certain terms. As regards the term “sources” the following was set out:
c. Source
17. Any person who provides information to a journalist shall be considered as his or her "source". The protection of the relationship between a journalist and a source is the goal of this Recommendation, because of the "potentially chilling effect" an order of source disclosure has on the exercise of freedom of the media (see, Eu. Court H.R., Goodwin v. the United Kingdom, 27 March 1996, para. 39). Journalists may receive their information from all kinds of sources. Therefore, a wide interpretation of this term is necessary. The actual provision of information to journalists can constitute an action on the side of the source, for example when a source calls or writes to a journalist or sends to him or her recorded information or pictures. Information shall also be regarded as being "provided" when a source remains passive and consents to the journalist taking the information, such as the filming or recording of information with the consent of the source.”


ITEMID: 001-82907
LANGUAGEISOCODE: ENG
RESPONDENT: FIN
BRANCH: CHAMBER
DATE: 2007
DOCNAME: CASE OF JUSSI UOTI v. FINLAND
IMPORTANCE: 4
CONCLUSION: No violation of Article 6+6-3-d - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing) (Article 6 - Right to a fair trial;Article 6-3-d - Witnesses);No violation of Article 6 - Right to a fair trial (Article 6-2 - Presumption of innocence)
JUDGES: Nicolas Bratza
TEXT: 6. The applicant was born in 1964 and lives in Turku.
7. At the end of 1995 the applicant was questioned by the police about suspected dishonesty as a debtor. Subsequently, charges were brought against him. The trial before the Helsinki District Court (käräjäoikeus, tingsrätten) involved 47 days of hearings. The court received testimony from the defendants, the complainants and over 40 witnesses. On 29 May and 10 June 1998 the prosecution presented documentary evidence, including some documents drawn up by a Mr G., who was working off-shore for a bank and who, in answer to a letter rogatory sent by the National Bureau of Investigation (keskusrikospoliisi, centralkriminalpolisen) to the Guernsey authorities, had produced documents (including “notes for archives” pertaining to meetings on 3 and 22 June 1993 and charts) related to a plan to transfer funds.
8. On 29 January 1999 the applicant was convicted of four counts of dishonesty as a debtor and four counts of aggravated tax fraud. He was sentenced to four years and two months' imprisonment. The District Court judgment ran to 163 pages. In short and in so far as relevant, the court found on the basis of, inter alia, the testimonies of J.S., S., the applicant and his brother and the documentary material, including the documents obtained from the Guernsey authorities, that the applicant and his brother had discussed the planned transfers of assets with G. It also found that the documentary evidence pertaining to the off-shore companies and the transfer of moneys proved that the assets acquired from the sale of the “bank group I.” had been transferred via companies specified in G.'s charts to trusts, the beneficiaries of which the brothers had appointed. As both brothers had been present during the negotiations with G. on 3 June 1993 and the plan to transfer funds had been proved to have materialised, the court found that they had acted together in, inter alia, removing the funds from Finland.
9. The applicant appealed to the Helsinki Court of Appeal (hovioikeus, hovrätten). In his grounds of appeal he submitted, inter alia, that the documents drawn up by G., resident in Guernsey, who had not been questioned during the pre-trial investigations or heard as a witness before the District Court, should not have been taken into account as he had not had a possibility to respond to that important evidence.
10. In its decisions of 23 and 24 October 2000 the Court of Appeal refused, as being unnecessary, the request of the applicant's co-accused brother that G. be heard as a witness. It stated that it would provide further reasons in its judgment.
11. On 31 October 2000 the Court of Appeal held a preparatory hearing. The applicant's brother unsuccessfully renewed the request for G. to be heard as a witness.
12. The first hearing took place on 8 November 2000. The parties and altogether 22 witnesses gave oral evidence, of whom three were fresh witnesses. The hearing of 27 other proposed witnesses had been rejected.
13. On 30 March 2001 the Court of Appeal convicted the applicant of six counts of dishonesty as a debtor, four counts of aggravated tax fraud and five counts of aiding and abetting accounting offences. It sentenced him to five years and eight months' imprisonment and ordered his immediate detention. He also lost his military rank.
14. As regarded the reasons for not hearing G. as a witness, the court held, inter alia, that:
“The Court of Appeal notes that no request to hear G. as a witness was made in the District Court although the documents relating to the plan to transfer moneys from the “bank group I.”, had been presented at the hearings of 29 May and 10 June 1998 ... Also [the applicant's brother, who was a co-defendant] relied, as written evidence, on [some] documents drawn up by G. without requesting that G. be heard as a witness ...
The documents allegedly drawn up by G. have not been drawn up for the purposes of the pending proceedings. The import of the documents can be assessed without hearing him as a witness. The question whether it is necessary to hear him as a witness depends solely on whether such a hearing could produce relevant new information. In assessing this question the Court of Appeal takes into account the fact that in the District Court G. was not proposed as a witness and the fact that the parties have been provided with an opportunity to put forward all their opinions concerning the content and reliability of the documents during the trial.
The Court of Appeal notes that the documents in question have been requested by the public prosecutor and the National Bureau of Investigation by sending letters rogatory to the Guernsey authorities. The Court of Appeal does not have any reason to suspect that the documents were drawn up by someone other than G. ...
The documents clearly indicate that there has been a deliberate conspiracy to transfer the assets acquired from the sale of the “bank group I.” to companies established abroad and to invest the moneys. The transfer of assets has been conducted, as later explained in detail in chapter 6.2.2, by order of ... [the applicant and his co-accused brother]. The question whether G. himself thought that he was involved only in legal investment activities is therefore not relevant.
The documents drawn up by G. are however relevant in assessing ... [the applicant's and his co-accused brother's] possible guilt of the offence of dishonesty as a debtor ... As becomes manifest in the reasons given in considering the charges, the Court of Appeal has not however decided the matter basing itself entirely on the documents in question. The court has instead assessed the value of the documents in an overall context, [in Finnish kokonaisyhteydessä] in which G. cannot have anything relevant to say.
The Court of Appeal has heard witness S., as requested ... about the events relating to the documents. The testimony of S., which in [the applicant's brother's] opinion proves the content of the discussions with G., has thus been taken into account ... The Court of Appeal holds that the requirements of a fair trial do not require that G. be heard as a witness either.”
15. The Court of Appeal judgment ran to 325 pages. In so far as relevant, the court principally endorsed the District Court's evaluation of the evidence.
16. The applicant sought leave to appeal. On 5 December 2001 the Supreme Court (korkein oikeus, högsta domstolen) refused leave to appeal.
17. If an item of evidence that a party wishes to present pertains to a fact that is not material to the case or has already been proved, or if the fact can be proved in another manner with considerably less inconvenience or cost, the court may refuse to admit it (Chapter 17, Article 7 (as amended by Act no. 571/1948) of the Code of Judicial Procedure).
18. Chapter 17, Article 11 of the Code of Judicial Procedure, as in force at the relevant time, provided that a written statement drawn up for a pending or imminent trial, could not be used as evidence, unless specifically provided for by law or unless the court so decided for particular reasons.
19. Chapter 26, Article 7 of the Code of Judicial Procedure (as amended by Act no. 661/1978), as in force at the relevant time, provided that the Court of Appeal was to hold an oral hearing when necessary. Chapter 26, Article 8 (as amended by Act no. 661/1978), as in force at the relevant time, provided that the Court of Appeal could not change a lower court's conviction based on the evaluation of evidence without holding an oral hearing, unless the case concerned an offence punishable by fines only or unless an oral hearing was manifestly unnecessary, in particular taking into account the defendant's need for legal protection.
20. The provisions concerning the Court of Appeal's duty to hold an oral hearing were amended (Act no. 165/1998) with effect from 1 May 1998. The new provisions did not apply to criminal proceedings which had commenced prior to the entry into force of the new Code on Criminal Procedure (laki oikeudenkäynnistä rikosasioissa, lagen om rättegång i brottmål; Act no. 689/1997; in force from 1 October 1997). The afore-mentioned former provisions applied therefore to the instant case. The new Chapter 26, Article 15 (Act no. 165/1998) provides that the Court of Appeal is to hold a hearing, regardless of whether one has been requested, if the decision in the matter turns on the credibility of the testimony received in the District Court or on new testimony to be received in the Court of Appeal. In this event, the evidence admitted in the District Court proceedings is to be readmitted in the principal hearing, unless there is an impediment to this.
NON_VIOLATED_ARTICLES: 6
NON_VIOLATED_PARAGRAPHS: 6-1
6-2
6-3
NON_VIOLATED_BULLETPOINTS: 6-3-d


ITEMID: 001-24060
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: ADMISSIBILITY
DATE: 2004
DOCNAME: MALININ v. RUSSIA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Georg Ress
TEXT: The applicant, Mr Gennadiy Ivanovich Malinin, is a Russian national who was born in 1944 and lives in St. Petersburg. The respondent Government are represented by Mr P. Laptev, Representative of the Russian Federation at the European Court of Human Rights.
The facts of the case, as submitted by the parties, may be summarised as follows.
On 21 January 1988 the applicant’s mother, Ms Malinina, offered her private house to the Vyborgskiy District Executive Committee, a Soviet era local self-government body, because the latter had earlier provided her with two flats in town.
On 31 May 1989 Ms Malinina brought a civil action to have the offer declared null and void. She submitted that at the time of the transaction she had suffered from a mental disease and her perception of reality had been distorted. The applicant and the new owner of the house, Mr E., were joined to the proceedings as third parties.
According to the applicant, between that date and 17 February 1992, the Vyborgskiy District Court of St. Petersburg fixed 14 hearings. On ten occasions the hearing was adjourned because the defendant and/or third persons failed to appear.
On 17 March 1992 Ms Malinina died, according to the information supplied by the Government. The proceedings were suspended pending the determination of her legal successor.
On 22 September 1992 (there is an apparent clerical error in the Government’s information where the year is indicated as 1993) the court designated the applicant as her legal successor in the proceedings. On the same date (on 2 November 1992, according to the applicant) it appointed an expert to carry out a post-mortem forensic examination of the mental state of the late Ms Malinina.
On 5 May 1993 the proceedings were resumed.
On 11 March 1996 the Vyborgskiy District Court of St. Petersburg granted the action and held that the offer had been null and void. No appeal was lodged against the judgment and the court proceeded with the determination of the amount of damage.
On 4 June 1997 the Presidium of the St. Petersburg City Court quashed, by way of supervisory-review proceedings, the judgment of 11 March 1996 and remitted the case for a new examination by a differently composed bench. The judgment was quashed because it had been made in the absence of the defendant.
The applicant complained to various authorities, including the Prosecutor General’s office and St. Petersburg prosecutor’s office, about unreasonable delays in the proceedings. On 3 March 1999 the St. Petersburg prosecutor’s office responded that prosecutors were not competent to review judges’ compliance with procedural time-limits.
On 5 May 1998 the Convention entered into force in respect of the Russian Federation.
On 12 May 1998 the presiding judge granted a request of a third party for additional property documents and the applicant’s request for summoning a new witness. The proceedings were accordingly adjourned.
On 19 August 1998 the hearing was adjourned as no response to the request for additional property documents had been received. The applicant, according to him, had a conflict with the presiding judge. He was fined for contempt of court.
On 12 November 1998 the presiding judge was ill.
On 25 January 1999 the defendant’s representative and the third party’s lawyer did not appear.
On 3 March 1999 the defendant and the third party did not appear.
On 13 April 1999 the hearing was adjourned. According to the applicant, it was so because the court registry had not prepared the case file. According to the Government, the presiding judge was ill.
On 28 April 1999 the hearing was adjourned because the applicant had lodged a complaint with the Prosecutor General’s office and the case-file was forwarded there.
On 5 August 1999 the presiding judge was absent. The applicant alleges that she was attending a training course. The Government indicate that she was unavailable because she was taking part in the hearing of another case.
On 5 October 1999 the court granted Mr E.’s request and joined him to the proceedings as a co-defendant. The hearing was adjourned because Mr E.’s lawyer was absent for a valid reason.
On 18 November 1999 the court granted Mr E.’s request to carry out an expert evaluation of the enhancements to the contested house. The proceedings were suspended for the time-period required for the examination. According to the applicant, he challenged the presiding judge; the challenge was dismissed.
On 26 December 1999 the St. Petersburg City Court dismissed the applicant’s complaint about the court’s decision to order the expert evaluation.
On an unspecified date the expert evaluation was ready and the proceedings resumed.
On 16 October 2000 the court joined the applicant’s claims against Mr E. to the proceedings and severed the action of the Vyborgskiy District Administration against the applicant and his relatives into separate proceedings.
On 24 October 2000 the parties were heard; the proceedings were adjourned at the applicant’s request.
On 3 November 2000 the Vyborgskiy District Court of St. Petersburg dismissed the applicant’s action and confirmed the validity of the offer made by Ms Malinina in 1988.
On 29 January 2001 the St. Petersburg City Court, on the applicant’s appeal, upheld the judgment of 3 November 2000.
Article 99 of the Code of Civil Procedure of 11 June 1964 (in force at the material time) provided that civil cases were to be prepared for a hearing no later than seven days after the action was submitted to the court. In exceptional cases, this period could be extended for up to twenty days. Civil cases were to be examined no later than one month after the preparation for the hearing was completed.