ITEMID: 001-60633
LANGUAGEISOCODE: ENG
RESPONDENT: FRA
BRANCH: CHAMBER
DATE: 2002
DOCNAME: CASE OF PAPON v. FRANCE
IMPORTANCE: 1
CONCLUSION: Violation of Art. 6-1;No violation of P7-2;Pecuniary damage - claim dismissed;Non-pecuniary damage - claim dismissed;Costs and expenses partial award - domestic proceedings;Costs and expenses partial award - Convention proceedings
JUDGES: Christos Rozakis
TEXT: 8. The applicant, who was born in 1910, is currently in custody in the Santé Prison in Paris.
9. From May 1942 to August 1944 the applicant was the secretary-general of the Gironde prefecture under the authority of the prefect, Maurice Sabatier.
10. After the Liberation, according to figures provided by the applicant, more than 30,000 civil servants who had served under the Occupation were punished and several thousand people were executed, both officially and unofficially.
11. In an opinion dated 6 December 1944 the Ministry of the Interior's Committee for the Purge of Collaborators (comité d'épuration) proposed that the applicant should retain his post, taking the view that although he had held office under the Vichy regime, he had shown a favourable attitude towards the Resistance. He was therefore allowed to continue serving as head of the private office of Gaston Cusin, the Bordeaux Commissioner of the Republic.
12. He was appointed to the rank of prefect and posted to Corsica in 1947, then served as Paris Police Commissioner from 1958 to 1966. He was a member of Parliament from 1968 to 1978 and mayor of Saint-Amand-Montrond from 1971 to 1988. He served as chairman of the Finance Committee of the National Assembly from 1972 to 1973 and then as the general rapporteur on the budget until 1978. From 1978 to 1981 he was Minister for the Budget.
13. On 6 May 1981, between the two rounds of the presidential election, the weekly newspaper Le Canard Enchaîné published the first of a series of articles in which the applicant, who was Minister for the Budget at the time, was criticised for his behaviour during the Second World War.
14. The applicant asked the Action Committee of the Resistance to appoint a court of honour to assess his conduct under the German occupation. On 15 December 1981, having examined his immediate hierarchical superior, Maurice Sabatier, who said that he assumed “full responsibility for the anti-Jewish repression for which his prefecture was responsible”, the court of honour delivered a verdict in which it formally acknowledged that the applicant had been a member of the Resistance from January 1943 onwards but concluded “that in the very name of the principles which he believed he was defending, and not having been instructed to remain in his post by a competent authority of the Resistance, he should have resigned from his post as secretary-general of Gironde in July 1942”.
15. On 8 December 1981 a lawyer named Boulanger lodged a criminal complaint against the applicant together with a civil-party application for crimes against humanity, aiding and abetting murder and abuse of official authority in connection with the deportation of eight persons arrested by the French police in Bordeaux and held in Bordeaux and then in Drancy Camp before being deported to Auschwitz and exterminated there. Six other criminal complaints together with civil-party applications relating to seventeen other victims of deportations were lodged in March and April 1982 by another lawyer, Mr Serge Klarsfeld, who is also the chairman of the association “Sons and daughters of France's Jewish deportees”. On 29 July 1982 the Bordeaux public prosecutor's office asked for investigations to be opened in respect of all seven complaints.
16. On 19 January 1983 the applicant was charged with crimes against humanity by the chief investigating judge at the Bordeaux tribunal de grande instance.
17. On 22 February 1984 the investigating judge commissioned an expert historical report from three historians. The report was filed on 11 January 1985.
18. In the meantime, on 23 May 1983, the investigating judge had begun examining witnesses, including Maurice Sabatier, the prefect of Gironde at the material time. However, former Article 681 of the Code of Criminal Procedure [Repealed by the Law of 4 January 1993] provided that where a civil servant or a mayor was likely to be charged with a serious crime (crime) or lesser serious offence (délit) committed in the performance of his duties, the public prosecutor had first to apply to the Criminal Division of the Court of Cassation to designate the court to carry out the investigation.
19. Since, by Article 171 of the Code of Criminal Procedure, failure to comply with that formal requirement rendered proceedings absolutely null and void, the Court of Cassation in a judgment of 11 February 1987 declared all the steps of the prosecution and investigation carried out after 5 January 1983, including the charging of the applicant, null and void as having been taken by a judge without jurisdiction and designated the Indictment Division of the Bordeaux Court of Appeal to proceed with the investigation.
20. In a judgment of 4 August 1987 the Indictment Division ordered the joinder of the seven sets of proceedings instituted as a result of the complaints lodged before 5 January 1983 and ordered that the investigation be continued, appointing a judge of the Indictment Division to conduct it. In judgments of 9 November and 8 December 1987 the Indictment Division noted that three fresh criminal complaints had been lodged by associations together with applications to join the pending proceedings as an intervening civil party and ordered that these be added to the file. A complaint by two civil parties in March 1982 gave rise to another judgment designating the competent court delivered by the Criminal Division of the Court of Cassation on 9 December 1987 and a judgment of 28 June 1988 in which the Indictment Division ordered the joinder of those proceedings and confirmed the appointment of the judge to conduct the investigation. On 2 February 1988 the Indictment Division noted that a new complaint had been lodged on 24 July 1987 together with an application to join the pending proceedings as an intervening civil party and ordered that it be added to the file.
21. In a judgment of 5 January 1988 the Indictment Division dismissed an application by the prosecution for an expert historical report.
22. On 8 July and 20 October 1988 respectively the applicant and Maurice Sabatier were charged with crimes against humanity. Maurice Sabatier died on 19 April 1989 and the Indictment Division accordingly recorded on 6 February 1990 that the proceedings against him had lapsed.
23. In February, June, October and December 1988, more associations intervened in the proceedings by means of criminal complaints lodged together with civil-party applications, which were recorded in judgments of the Indictment Division in February, March, June and November 1988 and January 1989.
24. Another complaint together with a civil-party application was lodged on 18 November 1988 and 3 February 1989 by the association “Sons and daughters of France's Jewish deportees”. It was lodged not only against the applicant and Maurice Sabatier but also against Jean Leguay and René Bousquet, both former senior officials with the rank of prefect under the Vichy regime, and Norbert Techoueyres, who at the material time was the detective superintendent nominated to act on the directions of the public prosecutor. In a judgment of 20 December 1988 the Indictment Division had declared the civil-party application admissible by way of intervention as to the matters of which it had already been properly seised and, as to the remainder, had ordered that the application be forwarded to the Principal Public Prosecutor.
25. Pursuant to Article 681 of the Code of Criminal Procedure, the complaint gave rise to a fresh application to the Criminal Division of the Court of Cassation, which, in a judgment of 26 April 1989, once again designated the Indictment Division of the Bordeaux Court of Appeal to investigate the new facts, but the complaint was subsequently declared inadmissible because a sum to cover costs had not been paid into court within the specified time.
26. Norbert Techoueyres and Jean Leguay died on 4 April 1989 and 3 July 1989 respectively, before being charged, and the proceedings against them accordingly lapsed.
27. The applicant was questioned on four occasions between 31 May and 6 October 1989. On 6 February 1990 the Indictment Division appointed a new judge to continue the investigation.
28. On 16 May 1990 twenty more criminal complaints together with civil-party applications relating to deportations in 1943 and 1944 not covered by the initial complaints were lodged against the applicant by Mr Boulanger on behalf of several individuals. Three of the civil-party applications were declared admissible and added to the file on 3 July 1990. The other seventeen complaints, which related to new accusations against René Bousquet, among other matters, gave rise to seventeen judgments, delivered by the Criminal Division of the Court of Cassation on 19 December 1990, designating the Indictment Division of the Bordeaux Court of Appeal as the investigating authority. After the complaints had been lodged again on 19 June 1991 and exemption from payment into court of a sum to cover costs had been granted, these complaints were joined to the main investigation proceedings by virtue of judgments of the Bordeaux Indictment Division of 14 April 1992.
29. In the meantime, on 12 December 1990 and 21 May 1991, another association had lodged an application to join the pending proceedings as an intervening civil party; that application was declared admissible in a judgment of 20 October 1991.
30. On 19 March 1992 the Principal Public Prosecutor made seventeen applications for a judicial investigation in respect of the applicant and René Bousquet.
31. On 19 April 1992 René Bousquet was charged with crimes against humanity. He was shot dead outside his home on 8 June 1993 and the proceedings against him accordingly lapsed.
32. On 22 June 1992 an additional charge of crimes against humanity was brought against the applicant on account of the facts alleged in the complaints of 16 May 1990.
33. In a judgment of 20 October 1992 the Indictment Division declared admissible a complaint lodged by another association together with an application to join the pending proceedings as an intervening civil party. As some of the other legal persons who had already joined the proceedings had extended their complaints to cover the matters dealt with in the judgments of 14 April 1992, the Indictment Division recorded the filing of three of those complaints in a judgment of 28 June 1993, another in a judgment of 7 June 1994 and two further ones in a judgment of 20 June 1995.
34. Between June 1992 and July 1995 the investigating judge took evidence from the civil parties (in some thirty-three interviews) and the witnesses (in about thirty-six) and made over thirty journeys to archives to seize evidence.
35. On 3 May 1994 the Indictment Division dismissed an application by the prosecution for the removal from the case file of the booklet “Civil Servants under the Occupation” (Fonctionnaire sous l'Occupation), which reproduced in extenso the expert historical report set aside by the Court of Cassation on 11 February 1987 and had been published by the applicant's lawyer, Mr Varaut, with a view to exculpating his client in the eyes of the public. The publication in question had been distributed to members of Parliament in 1987 and produced as evidence during libel proceedings brought by the applicant against the magazine Le Nouvel Observateur.
36. An appeal on points of law was lodged against the Indictment Division's judgment but an application by the prosecution for its appeal on points of law to be declared immediately admissible was dismissed by the President of the Criminal Division of the Court of Cassation on 10 June 1994.
37. On 28 July 1995, at the end of the investigation, the case file was sent to the Principal Public Prosecutor at the Bordeaux Court of Appeal, who filed his final application on 19 December 1995. In that application, which ran to 185 pages, the Principal Public Prosecutor submitted that the applicant had no case to answer in respect of his involvement in the organisation of the transports of September 1942, November and December 1943 and May 1944, that the prosecution of René Bousquet had lapsed, that the remaining charges should be altered to aiding and abetting abduction and false imprisonment and that the applicant should be committed for trial at the Assize Court for the transports of July, August and October 1942 and January 1944. The Principal Public Prosecutor did not charge the crime of aiding and abetting murder.
38. On 1 and 5 March 1996 five more associations applied to have their civil-party applications formally noted; that was done in the judgment of 18 September 1996 committing the applicant for trial.
39. The proceedings in the Indictment Division of the Bordeaux Court of Appeal against the applicant and three other persons on the charge of crimes against humanity following criminal complaints lodged together with civil-party applications by thirty-five individuals and twenty associations ended with a judgment delivered by the Indictment Division on 18 September 1996 in which it committed the applicant for trial at the Assize Court.
40. It appears from that 169-page judgment that between June 1942 and August 1944 1,560 persons of Jewish origin, including a large number of children, were deported in ten trainloads to Auschwitz Camp, where most of them died, either as the result of inhuman treatment or because they were exterminated. Some of the transports were dispatched after mass arrests among the Jewish population.
41. The Indictment Division noted, inter alia, that the unlawful arrests and imprisonment ordered by the German authorities had allegedly been carried out with the active assistance of the applicant, who was at the time the secretary-general of the Gironde prefecture and who, by virtue of the extensive powers delegated to him by the regional prefect, had authority not only over the administrative departments of the prefecture but also over the police and gendarmerie, the Mérignac Camp authorities and the departments set up as a result of the war, such as the Jewish Affairs Department. It further noted that the applicant had allegedly been fully aware of the anti-Jewish policy conducted by the Vichy government and that, as soon as he took office, he had apparently been “convinced that the arrest and imprisonment of Jews and their deportation to the East were leading them inescapably to their deaths ..., even though he might have remained unaware of the ... circumstances ... and the technical methods used ...”.
42. The Indictment Division concluded that the active contribution that the applicant was said to have knowingly made through his personal actions to the commission of criminal acts by units of the SIPO-SD (Sicherheitspolizei-Sicherheitsdienst), an organisation declared criminal by the Nuremberg International Military Tribunal on 1 October 1946, had formed part of a concerted plan carried out on behalf of Nazi Germany, an Axis country pursuing a policy of ideological hegemony. It held that the applicant could not rely on the instructions given on 8 January 1942 by the French authorities in London [Message by Lieutenant Colonel Tissier broadcast by the BBC on 8 January 1942, urging civil servants working in metropolitan France to stay at their posts, to do the work that they were asked to do and to sabotage it only if it was contrary to the interests of the nation and such sabotage could be carried out without risk. It was also recommended that civil servants should act alone and not even confide in their best friends], nor on duress, the requirements of the law, the orders of his hierarchical superiors or the responsibility of his own subordinates to absolve himself of his own responsibility. It also considered that his membership of the Resistance, on which he relied, did not mean that he could not have assisted the acts perpetrated by the Nazis against the Jews.
43. Consequently, the Indictment Division ordered the applicant's indictment for the offences of aiding and abetting unlawful arrest, false imprisonment, murder and attempted murder amounting to crimes against humanity in respect of four police raids and eight transports of deportees, and committed him for trial at the Gironde Assize Court.
44. The applicant appealed on points of law against that judgment. He pleaded in particular that the proceedings had been null and void, complaining that they had been unfair primarily because of their excessive length, the result of which had been that documents that would have been in his favour had disappeared and witnesses for the defence had died. He also challenged the Indictment Division's decision to commit him for trial for aiding and abetting crimes against humanity on the ground that, in his opinion, individual complicity in the case of such a crime, which was mainly attributable to an institution or an organisation, presupposed that the individual concerned subscribed to the hegemonic and racial ideology of the criminal institution. The applicant maintained that he had never belonged to the Nazi organisations condemned by the Nuremberg Tribunal and that the acts of which he stood accused had been committed in the performance of his duties as secretary-general of the Gironde Prefecture, an organ of the Vichy State, which in his view did not have a hegemonic ideology with the goal of racial extermination. He submitted that for the purposes of the Nuremberg law, which formed the basis of his prosecution, the German State and the Nazi organisations should be regarded as separate entities from the Vichy State, to which crimes against humanity could not therefore be attributed retrospectively. Consequently, he considered that neither could such crimes be attributed to persons who had performed purely administrative duties in the departments for which he was responsible. He also maintained that, contrary to what the Indictment Division had asserted, the fact that he had belonged to the Resistance was sufficient to rule out his participation in a concerted plan.
45. On 23 January 1997 the Criminal Division of the Court of Cassation dismissed the appeal on points of law. Noting that it was the first authority before which the complaint that the proceedings had been unfair had been raised, it declared that complaint inadmissible. It further ruled “that the appellant [had] no interest in criticising the reasons given in the judgment for dismissing the complaint of a violation of Article 6 § 1 of the European Convention on Human Rights, seeing that excessive length of criminal proceedings [did] not affect their validity”. The Court of Cassation also considered that there was nothing inadequate or contradictory about the reasons the Indictment Division gave for classifying the offences as aiding and abetting unlawful arrest, false imprisonment and murder or attempted murder, constituting crimes against humanity. It pointed out that indictment divisions had the ultimate authority to assess whether facts amounted to an offence, the role of the Court of Cassation being merely to “verify, supposing the facts to be established, whether their classification [justified] sending the case for trial”. It considered that that had been so in the instant case and that “consequently, the grounds of appeal must be rejected, particularly in so far as they refer[red] to the last paragraph of Article 6 of the Statute of the International Military Tribunal, which [required] neither that a person aiding and abetting crimes against humanity should have subscribed to the policy of ideological hegemony of the principal perpetrators nor that he should have belonged to one of the organisations declared criminal by the Nuremberg Tribunal”.
46. In an application of 25 July 1997 the Principal Public Prosecutor asked for the applicant to be placed under judicial supervision.
47. In a judgment of 7 August 1997 the Indictment Division placed the applicant under judicial supervision, with certain obligations. On 18 November 1997 the Criminal Division of the Court of Cassation recorded that the applicant had withdrawn his appeal on points of law against that judgment.
48. On 7 October 1997 the applicant was taken into custody in Bordeaux Prison, pursuant to the arrest warrant included in the judgment of the Indictment Division committing him for trial.
49. The trial in the Gironde Assize Court opened on 8 October 1997. The applicant's lawyer immediately applied for his client's release, pleading his extreme old age (87 years) and his poor state of health following a triple heart bypass operation in 1996. The Assize Court ordered an expert medical report, which was delivered to it on 9 October 1997 and from which it appeared that the applicant's state permitted imprisonment but only in a specialist cardiology unit. That very evening, the applicant had to be admitted to hospital for the night.
50. In a judgment of 10 October 1997, in the light of the expert report, the Assize Court ordered the applicant's release. That decision triggered protests from the civil parties, some of whom threatened to withdraw from the trial, and their protests were given extensive press coverage. The prosecution appealed on points of law against the judgment ordering the applicant's release.
51. The trial, which was initially expected to last two and a half months, lasted nearly six months (from 8 October 1997 to 2 April 1998). The proceedings were interrupted on a number of occasions, mostly because of the applicant's state of health. During the trial, which had a case file containing over 3,000 folders, 6,300 documents were produced in evidence. There were hearings on 94 days, during which 85 witnesses were heard, 12 hours were given over to the public prosecutor's address, 40 hours to the civil parties' submissions and 20 hours to the defence submissions. The court's deliberations lasted 19 hours.
52. At the hearing on 9 October 1997, that is on the day following the opening of the trial, the applicant's lawyer filed written submissions in which he argued that the trial should be declared not to satisfy the requirements of a fair hearing, particularly as the excessive length of the proceedings had made it impossible to hear certain witnesses; sought to have the proceedings declared null and void; and sought a ruling that the prosecution was barred. When arguing against the application for the proceedings to be declared null and void, the prosecutor referred in particular to the work carried out by the most recent investigating judges, who had made 164 journeys to consult archives, seized and studied 6,354 documents, taken evidence from 95 witnesses and held 85 interviews with civil parties.
53. In an interlocutory judgment of 15 October 1997 the Assize Court dismissed the application for the proceedings against the applicant to be halted, on the following grounds:
“While it is true that many of the defence witnesses have now died or are incapable of travelling, it must be recognised that the same applies to the prosecution witnesses and that from this point of view and in general the parties are on an equal footing.
The exceptional length of the proceedings which brought Maurice Papon before the Gironde Assize Court is not excessive when it is considered that the complexity of the case, linked for the most part to the long time that has elapsed since the commission of the offences of which the defendant is accused, the number of those offences, the broad time-span over which they were reported, the age of the witnesses and the fact that they were so scattered, required the investigating judges to carry out a very large number of investigations, which they were often forced to conduct themselves because of the very nature of the facts. Added to these problems were others stemming from the widely dispersed documentary sources and the obstacles sometimes encountered in gaining access to them.
Contrary to what has been alleged, the trial at the Gironde Assize Court is not that of a State or an administrative authority but that of a man entitled to rely on the presumption of innocence – a principle with constitutional status which cannot be impaired in the judges' minds by the media excesses denounced by the defence – a man accused of having personally committed acts which, in the words of the indictment, constituted the serious crime of 'aiding and abetting crimes against humanity'.
Lastly, in reply to the argument put forward by Maurice Papon's defence counsel that the judgment delivered on 23 January 1997 by the Criminal Division of the Court of Cassation was 'in complete contradiction not only with Article 6 of the Nuremberg Statute ... but also with Article 123-1 of the Criminal Code', it should be pointed out that it is not for an assize court to assess whether a decision of the Court of Cassation is in conformity with the applicable rules of law.”
54. From 23 to 31 October 1997 the proceedings were adjourned because the applicant was hospitalised with bronchitis caused by an infection.
55. In another interlocutory judgment (of 3 November 1997, not produced) the Assize Court dismissed the applicant's application for it be formally noted in the record that an American historian, who was an expert on the Vichy regime, had in his witness statement of 31 October expounded political and historical ideas not directly connected with the facts of which the applicant was accused. The applicant considered that there had been a violation of the principle that hearings in the Assize Court must be oral, as the person concerned was not a “witness”, not having witnessed any of the offences of which he stood accused.
56. On 14 November 1997 the applicant's lawyer applied to have the correspondence between the occupying German authorities and the prefecture between 1942 and 1944 admitted in evidence.
57. From 17 November to 4 December 1997 the trial had to be adjourned once again on account of the applicant's poor state of health, which had been confirmed by a medical report.
58. When the proceedings resumed on 5 December 1997 the applicant's lawyer filed written submissions in which he applied for further inquiries into the facts to be made with a view to producing in court the whole of the police intendant's archives held by the Gironde archive office instead of the results of selective seizures which did not make it possible to assess exactly what powers had been exercised by the various actors at the prefecture between 1942 and 1944. In a judgment of 11 December 1997 the Assize Court decided to defer its examination of that application.
59. From 23 December 1997 to 5 January 1998 the trial was adjourned.
60. On 7 January 1998 the President of the Assize Court authorised the projection of two video recordings of evidence given by two witnesses during the trial of Klaus Barbie in Lyons in 1987, that of the writer André Frossard on the conditions of detention in Montluc Prison in Lyons and that of Yves Jouffa, former Chairman of the Ligue des droits de l'Homme (Human Rights League), on the conditions in Drancy Camp, near Paris.
61. At the hearing on 26 January 1998, which focused on the transport of 25 November 1943, the applicant was questioned by the public prosecutor, with the President's authorisation and on the basis of the documents in the file, about events preceding that transport, in particular those connected with the organisation of the transport of 2 February 1943, which was mentioned in the judgment whereby the applicant was committed for trial but not in the indictment. The applicant's lawyer immediately filed written submissions seeking to have a formal note of these matters added to the record.
62. On 28 January 1998 Mr Arno Klarsfeld, one of the civil parties' lawyers, published a press release revealing a distant family tie between the President of the Gironde Assize Court and some of the persons whom the applicant was accused of deporting. He criticised the President for failing to report the fact that the mother and two sisters of his aunt by marriage had been part of the December 1943 transport.
63. No application for the judge to withdraw was filed, however, either by the civil parties or by the defence, because the Code of Criminal Procedure only provides for that possibility if the judge is a blood relative or a relative by marriage of one of the parties up to the degree of second cousin inclusive, which was not so in the instant case. The President of the Assize Court announced that he could not even remember the name of his uncle's wife, and that his uncle had died when he was a child. He did not consider it necessary to withdraw from the proceedings of his own motion.
64. On 2 February 1998 the Assize Court took formal note at the applicant's request that the public prosecutor had questioned him on 26 January 1998, with the authorisation of the President of the Court, about events preceding the transport of 25 November 1943 in respect of which the applicant had been indicted in the Indictment Division's judgment and, in particular, about the organisation of the transport of 2 February 1943, which had not been mentioned in the indictment.
65. In another interlocutory judgment delivered on the same day (not produced), however, it refused to allow an application by some of the civil parties for a formal note to be made in the record that those questions were directly connected with the facts mentioned in the indictment in relation to the applicant's powers. It noted that it was not its task, “if it wished to avoid prejudging the merits of the case and thereby infringing the provisions of Article 316 of the Code of Criminal Procedure, to rule on any direct relationship that might exist between these facts and those referred to in the indictment with regard to Maurice Papon's powers”.
66. In an interlocutory judgment of 5 March 1998 (not produced) the Assize Court dismissed the applicant's application of 5 December 1997 for further inquiries into the facts to be made with a view to producing the whole of the police intendant's archives in court, on the ground that, in view of the evidence taken at the hearing, the requested measure did not appear necessary for establishing the truth.
67. On the same day the applicant's lawyer applied to have added to the file a copy of the criminal complaint that he had just lodged against Mr Serge Klarsfeld, the chairman of one of the civil-party associations, on the basis of Article 434-16 of the Criminal Code, which prohibited publication before a final judicial decision of comments intended to exert pressure with a view to swaying a trial court's decision. He criticised Mr Klarsfeld for the content of a number of interviews he had given concerning the revelation of the family tie between some of the victims and the President of the Assize Court, to whom Mr Klarsfeld had imputed bias in the defendant's favour, and impugned the fact that only disciplinary proceedings had been brought by the public prosecutor's office against Mr Klarsfeld's son, who had made the revelation in January 1998.
68. The proceedings were adjourned from 25 to 30 March 1998, following the death of the applicant's wife.
69. In a further interlocutory judgment (of 1 April 1998, not produced) the Assize Court dismissed an application by the applicant for a question to be put as to whether he knew of a concerted Nazi plan to exterminate the Jews and whether he was prepared to participate in such a plan, on the ground that such a question was included among those intended to establish whether he was guilty of aiding and abetting crimes against humanity.
70. It also refused to allow a subsidiary question to be put as to whether the applicant's resignation, which would have curtailed his Resistance activities, would have changed the system for the extermination of Jews in Bordeaux, on the ground that as it was not possible to assert a legal interest, there was no reason to raise the question of his resignation.
71. On 2 April 1998, in a 123-page judgment delivered after deliberations lasting 19 hours, the Assize Court, replying to 768 questions, found the applicant guilty of aiding and abetting the unlawful arrest and false imprisonment of Jews deported in the transports of July, August, and October 1942 and January 1944, offences that constituted crimes against humanity. He was acquitted of the charges of aiding and abetting murder and attempted murder.
72. The applicant was sentenced to ten years' imprisonment and stripped of his civil, civic and family rights for ten years. In a judgment of 3 April 1998 (not produced) the Assize Court ruled on the civil claims.
73. On 3 April 1998 the applicant appealed on points of law against his conviction and on 14 December 1998 he filed further pleadings containing ten grounds of appeal, six of which referred expressly to Article 6 of the Convention.
74. In a telegram of 8 September 1999 the Principal Public Prosecutor at the Court of Cassation requested that the applicant be notified of his obligation to surrender to custody prior to the hearing in the Court of Cassation scheduled for 21 October 1999. Notice thereof was served on the applicant on 16 September 1999.
75. On 17 September 1999 the applicant lodged with the Indictment Division of the Bordeaux Court of Appeal an application for exemption from the obligation to surrender to custody, which he withdrew on 27 September 1999, making a fresh application to the Assize Court. On 4 October 1999 the Assize Court ruled that it had no jurisdiction to make such an order. The applicant appealed on points of law. On the same day he again applied to the Indictment Division for exemption from the obligation to surrender to custody. He relied on Article 6 of the Convention, his age (89 years) and his state of health.
76. In a judgment of 12 October 1999 the Indictment Division first dealt with an application by the applicant for a declaration that Article 583 of the Code of Criminal Procedure should be deemed null and void by virtue of Article 6 § 1 of the Convention. It said:
“Although the provisions of the ... Convention ... have been incorporated into the French legal system in accordance with Article 55 of the Constitution and although the courts have jurisdiction to determine, in an individual case, whether a statutory provision conforms with the requirements of the Convention, it is still necessary for that provision to serve as the basis on which the case is submitted to them.
In the instant case Article 583 of the Code of Criminal Procedure gives the Indictment Division jurisdiction only to deal with a specific matter of judicial administration, namely applications for exemption from the obligation to surrender to custody.
The task of enforcing the obligation to surrender to custody lies exclusively with the Court of Cassation, as it alone can decide what consequences shall flow from a failure to surrender to custody. It is therefore the Court of Cassation's task to rule on applications for Article 583 not to be applied to cases submitted to it and, where it has allowed such an application, to decide not to declare that the applicant has forfeited his right of appeal.”
77. The Indictment Division went on to dismiss the application for exemption from the obligation to surrender to custody, holding that, in view of the length of the sentence imposed, the security provided by the applicant seemed inadequate; that the medical certificate he had produced did not indicate a significant deterioration in his state of health since the expert opinion of October 1997; and that his state of health did not appear to preclude detention in a hospital unit, the arrangements for which were a matter for the prison authorities.
78. The applicant did not surrender to custody and left France to take refuge in Switzerland. However, the Swiss authorities ordered him to leave Switzerland, on a date not indicated in the case file.
79. In a judgment of 21 October 1999, after a public hearing during which the applicant's lawyers submitted their observations on his grounds of appeal, the Criminal Division of the Court of Cassation held that the applicant had forfeited his right to appeal against the Assize Court's judgment of 2 April 1998, pursuant to Article 583 of the Code of Criminal Procedure, on the ground that “the appellant, who [had been] sentenced to a term of imprisonment of more than one year, [had] not surrendered to custody and [had] not been exempted from that obligation”.
80. In two judgments of 20 December 2000 the Court of Cassation dismissed the appeals lodged by the applicant against the judgments delivered by the Assize Court and the Indictment Division on 4 and 12 October 1999 on his applications to be exempted from the obligation to surrender to custody, on the ground that they were devoid of purpose since in the meantime the applicant had forfeited his right to appeal on points of law against his conviction by the Assize Court.
81. As regards the obligation to surrender to custody before an appeal on points of law is heard, the relevant provision of the Code of Criminal Procedure at the material time reads as follows:
“Convicted persons sentenced to a term of imprisonment of more than one year who have not surrendered to custody or have not been exempted, with or without payment of a security, from surrendering to custody by the court that tried them shall forfeit their right of appeal on points of law.
The memorandum of their imprisonment or the judgment granting them exemption shall be produced to the Court of Cassation, at the latest when the case is called on.
In order for his appeal to be admissible, it shall be sufficient for the appellant to provide evidence that he has given himself up at a prison either in the place where the Court of Cassation sits or in the place where he was convicted; the chief warder of that prison shall receive him there on the order of the Principal Public Prosecutor at the Court of Cassation or of the chief prosecutor at the court of trial.”
82. Article 583 was repealed by the law of 15 June 2000 “to strengthen protection of the presumption of innocence and the rights of victims”. The law also instituted two levels of jurisdiction in serious criminal cases by providing for the possibility of appealing against the judgments of assize courts.
83. The law of 15 June 2000 also inserted into the Code of Criminal Procedure a Part III concerning “review of a criminal decision as a result of a judgment of the European Court of Human Rights”.
The new Articles 626-1 and 626-4 provide:
“An application may be made for review of a final criminal decision on behalf of any person found guilty of an offence where it has been held in a judgment of the European Court of Human Rights that he was convicted in breach of the Convention for the Protection of Human Rights and Fundamental Freedoms or its Protocols, provided that, in its nature and seriousness, the breach found entails injurious consequences for the convicted person which cannot be remedied by the 'just satisfaction' awarded under Article 41 of the Convention.”
“If it considers the application to be justified, the committee shall proceed in accordance with the following provisions:
(a) Where a review of the convicted person's appeal on points of law, in a manner consistent with the provisions of the Convention, is apt to remedy the violation found by the European Court of Human Rights, the committee shall remit the case to the Court of Cassation, which shall sit as a full court to hear the case;
(b) In other cases, the committee shall remit the case to a court of the same hierarchy and level as the one which gave the impugned decision ...”
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-57540
LANGUAGEISOCODE: ENG
RESPONDENT: CHE
BRANCH: CHAMBER
DATE: 1983
DOCNAME: CASE OF MINELLI v. SWITZERLAND
IMPORTANCE: 2
CONCLUSION: Violation of Art. 6-2;Non-pecuniary damage - finding of violation sufficient;Costs and expenses award - domestic proceedings;Costs and expenses award - Convention proceedings
JUDGES: C. Russo
TEXT: 8. The applicant, a Swiss national born in 1932, is resident at Forch, in the Canton of Zürich; he is a journalist by profession.
9. On 27 January 1972, he published in the "National Zeitung" - a Basel daily newspaper which is no longer in existence - an article containing accusations of fraud against a company, Télé-Répertoire S.A., and its director, Mr. Vass. In the article he called for a search to be effected at Mr. Vass’ home, offices and other premises and, should the search prove positive, for his arrest. Six days earlier, Mr. Minelli had lodged with the Uster District Attorney’s office (Bezirksanwaltschaft) a complaint which, for reasons of jurisdiction, was transferred to the Ticino authorities. The latter, after hearing evidence from Mr. Minelli on 10 February, discharged the case on 10 May 1972.
The facts recounted by the applicant had already been the subject of an article by another journalist, Mr. Fust, which appeared on 19 January 1972 in the daily newspaper "Blick". Mr. Fust complained that in order to promote sales of a telephone directory, the company in question had been using subscription forms (Einzahlungsscheine) that resembled telephone bills. In his view, such conduct could create the impression that this was an ordinary service provided by the Swiss postal authorities, giving rise to a debt that had to be paid in the same way as a periodical invoice.
10. Télé-Répertoire S.A. and Mr. Vass brought against both journalists a criminal complaint of defamation (Ehrverletzung) committed through the press.
The complaint against Mr. Minelli was filed on 29 February 1972 in the Uster (Zürich) District Court (Bezirksgericht). On 6 June, the investigating judge questioned the parties in the presence of their lawyers. Previously, the applicant’s lawyer, Mr. Kuhn, had supplied certain documents and called for evidence to be submitted; on 28 June, he requested that several witnesses be heard. However, on 3 July 1974 the District Court suspended the proceedings, at Mr. Vass’ request, until completion of the proceedings instituted against Mr. Fust, the "Blick" journalist.
The latter proceedings, which had begun on 28 February 1972 and had encountered numerous procedural vicissitudes, resulted on 2 September 1975 in a judgment of the lst Criminal Chamber of the Canton of Zürich "Higher Court" (Obergericht): Mr. Fust was fined 200 SF and ordered to pay about 1,400 SF in court costs, together with compensation of 1,400 SF to each of the private prosecutors in respect of their expenses.
11. On 22 August 1975, even before that judgment had been delivered, Mr. Vass had formally requested that the proceedings against Mr. Minelli be resumed; when doing so, he drew the Uster court’s attention to the statutory limitation period.
On 12 September 1975, the court granted the request and asked Mr. Minelli to indicate whether he demanded that his case be heard before an assize court. Mr. Kuhn replied in the affirmative and the District Court therefore relinquished jurisdiction on 1 October 1975.
On 6 November 1975, the Prosecution Chamber (Anklagekammer) of the Zürich Higher Court declared the complaint admissible and directed that the case be remitted to the Canton of Zürich Assize Court (Geschworenengericht) (Article 305 of the Zürich Code of Criminal Procedure). On 24 November 1975, the applicant entered a public law appeal against this decision; it was dismissed by the Federal Court on 6 January 1976.
On 19 November 1975, the registry of the Assize Court had told Mr. Weber, Mr. Vass’ lawyer, by telephone that the hearings would be held between 19 and 21 January 1976, but they were subsequently postponed to await the Federal Court’s judgment. When that judgment was delivered on 6 January, it was too late, according to the Government, to hold the hearings on the date originally envisaged. However, on 21 January 1976 the Assize Court invited the parties to present their submissions on the apportionment of costs, having regard to the fact that the "absolute" limitation period (see paragraph 17 below) was close to expiring. Both parties did so in writing. Mr. Minelli also asked the Assize Court to obtain certain evidence.
12. On 12 May 1976, the Chamber of the Canton of Zürich Assize Court (Gerichtshof des Geschworenengerichts) decided that it could not hear the complaint (Nichtzulassung der Anklage) against the applicant because the "absolute" limitation period of four years had expired on 27 January 1976 (Articles 72 and 178 of the Swiss Criminal Code; see paragraph 17 below). It directed that Mr. Minelli should bear two-thirds of the court costs (Kosten der Untersuchung und des gerichtlichen Verfahrens), namely 374 SF out of a total of 562 SF, the balance being payable by the private prosecutors; it also ordered him to pay to each of them compensation of 600 SF in respect of their expenses, as against their claim of 3,600 SF.
13. The decision on this point was based on Article 293 of the Zürich Code of Criminal Procedure, whereby the losing party is to bear the costs of the proceedings and is to pay to the other party compensation in respect of his expenses, unless special circumstances warrant a departure from this rule.
The Chamber of the Canton of Zürich Assize Court found that in the instant case it was the private prosecutors who were the losing party: as a result of limitation, they had not obtained the applicant’s conviction. It then referred to Zürich case-law according to which, in cases ending in an acquittal (Freispruch) on account of criminal irresponsibility or in a decision to terminate the proceedings (Einstellung) following the death of the accused, it is of significance to know, when the costs are being apportioned, what the judgment would have been had the accused been criminally responsible or survived. In its opinion, the same applied when the prosecution was terminated on account of limitation; "the obligation to bear the costs and expenses" must in such circumstances "depend on the judgment which would have been given had there not been limitation". The Chamber added that the costs of a private prosecution could never be left to be borne by the State and that according to the established practice in the matter there was no call to conduct a further investigation into the facts.
To discover what the result of the prosecution would have been in the absence of limitation, the Chamber referred to the judgment (which has since become final) which the Higher Court had given on 2 September 1975 in the case of the journalist, Mr. Fust (see paragraph 10 above). After summarising the judgment and citing extensive extracts, the Chamber stated (translation from German into French supplied by the Government):
"It can be accepted, as is done by the private prosecutors, that the present case is, with slight variations, the same as that referred to, namely the proceedings before the Cantonal Court against the journalist F. for defamation. In fact, Minelli, by maintaining that there had been fraud in the instant case and calling for Mr. Vass to be placed in detention on remand, has brought much more serious accusations against the private prosecutors. Unlike F., the accused apparently made no effort to verify his accusations. Minelli was a target of the private prosecutors’ publicity campaign when, in January 1972, he received from the company Télé-Répertoire Editions Vass a printed subscription form. However, according to his own statement, he was not deceived. Looking at the card more carefully, he found on the back a printed note ‘which gave it to be understood in a rather indirect manner that the invoice was intended to pay for an entry in heavy print in a telephone directory’ (ref. 5/28). When, a few days later, F.’s article appeared in "Blick", Minelli himself formulated the accusations in question, with the object, according to his own statement, of inducing the postal authorities to take action. Nevertheless, he did not previously contact either the private prosecutor Mr. Vass or his company because the facts seemed to him so clear that he did not consider it necessary to do so (ref. 5/26 p. 4).
By failing to obtain more precise information from the private prosecutors, the accused committed a breach of his duty of care. He ought in fact to have made himself aware of the steps taken by them with a view to avoiding all risk of confusion. After obtaining this information he could at most have indicated his disapproval of their methods, but he did not have the right to accuse them of fraud publicly and in such a flagrant manner. As he nevertheless did so, he would in all probability have been convicted of defamation if the present proceedings had not been terminated on account of limitation. This conclusion is rendered more compelling by the fact that the proceedings for fraud initiated on the complaint of the accused against Mr. Vass in the Canton of Ticino ended in a discharge (10 May 1972); the costs of the proceedings were ordered to be paid by the State. The discharge was based on the absence of facts which would have made it possible to find that the constituent elements of the offence of fraud existed (ref. 5/20 and 21). The arguments the accused adduces against this decision can no longer be examined in the present proceedings. That would have been possible if the Assize Court had been required to reach a decision on the merits of the charge.
Given that Article 293 of the Code of Criminal Procedure authorises the court to take account of the ‘special circumstances’, this means that it must take into consideration all the relevant circumstances in making its decision on the apportionment of costs. As stated by the Canton of Zürich Court of Cassation in its unpublished decision of 2 April 1973, cited above, these circumstances include the fact that the private prosecutors contributed by their behaviour to the initiation of the proceedings, within the meaning of Article 189 of the Code of Criminal Procedure. The fact that the subscription forms were sent without envelopes until the end of 1971 and, sporadically, in 1972 may have given the accused the impression that the prosecutors had sought to create confusion or were at least not concerned about it. The fact of combining the offer and the invoice in their communication must also be considered as improper, as was moreover already noted by the Higher Court in its judgment. The private prosecutors’ commercial practices, which had already been publicly denounced, were indeed the cause of the article complained of. The accused’s reactions were accordingly provoked by the private prosecutors. Even though the accused acted for a specific purpose, his attack was nevertheless excessive. It clearly went beyond the bounds of what was tolerable.
It must therefore be assumed that if the proceedings had not been terminated on account of limitation, the article against which the complaint was filed would very probably have led to the conviction of the accused; on the other hand, it was the private prosecutors’ behaviour which caused the accused to draw their reprehensible commercial practices to the attention of the public and the competent authorities. It is therefore justified to order the accused to pay two-thirds of the court costs and the prosecutors one-third. The parties’ expenses must be settled in the same proportions, on the basis that the total sum involved amounts to 3,600 francs; ..."
14. On 26 July 1976, Mr. Kuhn filed, on behalf of Mr. Minelli, an application for this decision to be quashed (Nichtigkeitsbeschwerde); reliance was placed, inter alia, on Article 6 § 2 (art. 6-2) of the Convention.
The Canton of Zürich Court of Cassation (Kassationsgericht) dismissed this application on 30 September 1976. It treated the presumption of innocence as being a rule of evidence. It noted that it was undisputed that the publication complained of was defamatory. Accordingly, the applicant could not have avoided conviction, if the proceedings had not been terminated on account of limitation, unless he had had grounds for believing his allegations to be true; however, the Chamber of the Assize Court had found that this was not the case. According to the Court of Cassation, Article 6 § 2 (art. 6-2) could not be interpreted to mean that the good faith of a person charged with defamation must be presumed until the contrary was proved, in other words, that it was for the private prosecutor to prove bad faith on the part of the accused. It could not be supposed that the Convention intended to overturn (umwälzen) in such a way the criminal law of the Contracting States. Moreover, the field of application of Article 6 § 2 (art. 6-2) was not very clear. For the reason stated, it could not be accepted that it extended to the establishment of the truth in a criminal prosecution for defamation. It followed that the Chamber of the Assize Court had not violated this provision by reaching the conclusion, without taking evidence (Beweisverfahren), that Mr. Minelli had not succeeded in proving the truth of his allegations against the private prosecutors.
The Court of Cassation directed that the applicant was to pay 251 SF in court costs and ordered him to pay to the private prosecutors compensation of 600 SF in respect of their expenses.
15. On 1 November 1976, Mr. Kuhn, on behalf of Mr. Minelli, filed with the Federal Court a public-law appeal based on Article 6 § 2 (art. 6-2) of the Convention.
On 5 January 1977, at the applicant’s request, the President of the Court suspended the proceedings, on the ground that various cases raising similar issues were pending before the European Commission of Human Rights (applications nos. 6281/73 and 6650/74, Neubecker and Liebig, respectively, against the Federal Republic of Germany; application no. 7640/76, Geerk against Switzerland). The proceedings were resumed after these cases had formed the subject of friendly settlements under Article 28, sub-paragraph (b) (art. 28-b), of the Convention.
16. The Public-Law Chamber of the Federal Court dismissed the appeal on 16 May 1979.
It recalled first of all that since this was a private prosecution for defamation, without the intervention of the public prosecutor, the costs could not be borne by the State: they had to be apportioned (aufteilen) between the parties in some way or another. Account also had to be taken of the fact that not only the accused’s criminal responsibility but also the private prosecutor’s reputation were at stake in such proceedings. This special situation might have repercussions on the method of apportioning the costs.
According to the Federal Court, if, owing to a subsequent procedural obstacle, criminal proceedings did not terminate in a judgment on the merits but in a decision which left open the question of guilt (discharge or declaration that the complaint could not be heard), reasons of equity might necessitate the taking into account, in the decision on costs, of the probable result of the proceedings in the absence of such obstacle. It was therefore justified to consider, after a provisional examination of the merits of the case ("aufgrund einer provisorischen Prüfung der materiellen Rechtslage"), which party would probably have been successful in the absence of limitation.
In the instant case, there had been no violation of the presumption of innocence as the result of the imposition of a punishment without guilt being established in accordance with the law. Neither had there been any measure implicitly amounting to a judicial finding of a criminal offence, equivalent to a conviction. Admittedly, the Chamber of the Assize Court came to the conclusion, "by anticipating partially the assessment of the evidence, that the applicant should probably have been convicted of defamation". This was, however, not "a formal finding of criminal guilt, but an estimation of the probable result of the proceedings ("Würdigung der Prozesschancen")". As the Chamber had to come to its decision on the basis of the evidence before it and as Cantonal practice prohibited its making any further investigation into the facts for the sole purpose of apportioning the costs, it was still possible that the proceedings might have resulted in an acquittal had they run their ordinary course. An order to pay costs was not in itself to be regarded as equivalent to a criminal conviction. Since the Chamber had rendered a decision only on the apportionment of costs and not on criminal guilt, the applicant (and also the private prosecutor) could not rely on Article 6 § 2 (art. 6-2) of the Convention to insist that the provisional examination undertaken in the present case should follow the procedure required for a decision on the merits.
The Federal Court added that the criterion of the probable result of the proceedings could be utilised only if the data available enabled a sufficiently reliable estimate to be made and if the parties had previously had an opportunity to express their views on the matters relevant to the apportionment of costs. However, the limits to be respected in this context were based not on the presumption of innocence but on the general principle forbidding arbitrary decisions and on the right to be heard. And the applicant had made no complaint in this respect.
Finally, the Federal Court noted that the Chamber of the Assize Court had not only considered whether the proceedings would have ended in Mr. Minelli’s conviction had there not been limitation, but had also had regard to the conduct of the two private prosecutors before the trial. The Federal Court directed that the applicant was to pay 643 SF in court costs and ordered him to pay to the respondents’ compensation of 800 SF in respect of their expenses.
17. Offences involving an attack on a person’s honour (délits contre l’honneur) are governed by Articles 173 to 178 of the Swiss Federal Criminal Code of 21 December 1937. Simple defamation (diffamation) entails liability to a sentence of imprisonment for not more than six months (Article 173) and serious defamation (calomnie), a sentence of imprisonment for not more than three years (Article 174 combined with Article 36).
Under Article 178, prosecution for these offences is subject to a two-year limitation period. However, the running of time will be interrupted and will commence afresh whenever any measure of investigation is taken. Nevertheless, for offences involving an attack on a person’s honour there is in any event "absolute" limitation after four years, that is twice the normal limitation period (Article 72 § 2 of the Criminal Code).
18. In Switzerland, criminal proceedings for such offences are instituted by means of a private complaint (Strafantrag). In the Canton of Zürich, as in several other Cantons, the proceedings are known as Privatstrafklageverfahren (Article 287 of the Zürich Code of Criminal Procedure): it is for the injured party, not the State authorities, to take the initiative. The public prosecutor does not take part in the proceedings.
Cases are normally heard by a District Court (Bezirksgericht), but the accused may apply for a transfer to the Assize Court if the alleged defamation has been committed through the press (Article 294 of the Code of Criminal Procedure and section 56 of the Zürich Constitution of the Courts Act). In that event, the Prosecution Chamber of the Canton of Zürich Higher Court - rather than the President of the District Court - rules on the admissibility (Zulassung) of the complaint (Article 305 of the Zürich Code of Criminal Procedure).
If the court decides that the complaint cannot be heard, the private prosecutor may appeal (Article 169 of the same Code), but if the court decides that the complaint can be heard, the accused cannot appeal except on the ground that the court lacks jurisdiction.
Under section 160 § 8 of the Constitution of the Courts Act, judgments in criminal matters must include decisions both on the question of guilt and the consequences thereof - acquittal, sentence, imposition of measures of prevention or assistance - and on damages (Schadenersatz), costs and compensation (Entschädigungen).
Details of the apportionment of costs and expenses, unlike those of the sentence passed, are entered only in the court’s register of criminal cases and not in the judicial criminal records (casier judiciaire).
19. In the context of private prosecutions, costs include compensation to the parties in respect of their expenses (Prozessentschädigung) as well as court costs properly so-called (court and registry fees); their incidence is determined by reference, inter alia, to what caused the court costs and expenses to arise. It follows that the costs are in principle never paid by the State but must be borne by the parties themselves (Article 190 of the Zürich Code of Criminal Procedure). In this connection, Article 293 of the Code of Criminal Procedure provides:
"The losing party shall bear the court costs and shall pay compensation to the other party in respect of his expenses; a departure from this rule can be made only if special circumstances so warrant."
When determining the apportionment of costs and expenses, the court, according to the Government, enjoys a certain discretion in the choice of the criteria to be applied. It can take account, inter alia, of reprehensible or irresponsible behaviour by the parties before or during the investigation (Articles 189 and 286 of the Code of Criminal Procedure); of their having violated the principles of good faith or morality; of the principle of equity; and, finally, of questions of causation, which may lead it to form an estimate of the probable result of the proceedings.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-2


ITEMID: 001-84977
LANGUAGEISOCODE: ENG
RESPONDENT: SVN
BRANCH: CHAMBER
DATE: 2008
DOCNAME: CASE OF ACIKGÖZ v. SLOVENIA
IMPORTANCE: 4
CONCLUSION: Violation of Art. 6-1;Violation of Art. 13
JUDGES: Alvina Gyulumyan;Corneliu Bîrsan;David Thór Björgvinsson;Egbert Myjer;Elisabet Fura;Ineta Ziemele
TEXT: 6. The applicant, Mr Ali Acikgöz, is a citizen of Turkey who was born in 1945 and lives in Austria.
7. On 5 April 1987 the applicant was involved in a serious car accident in which one person died.
8. Consequently, criminal proceedings were instituted against the applicant and, on 7 April 1987, the Kranj Basic Court (Temeljno sodišče v Kranju) ordered him to pay a bail of 5,000 DEM.
9. During the investigation, the investigating judge acquired forensic expert reports and examined a witness.
10. On 13 April 1988 the Public Prosecutor filed an indictment against the applicant for causing the accident by negligent driving. On 14 November 1991 the Kranj Basic Court dismissed the applicant's objection against the indictment.
11. On 30 December 1991 the applicant assigned a new lawyer to represent him in the proceedings and informed the court about his address in Austria.
12. On 30 June 1992, a hearing was cancelled due to the applicant's absence. Subsequently, the court examined several witnesses in the presence of the applicant's representative.
13. On 20 October 1992 the applicant's lawyer proposed that the next hearing be held in the absence of the applicant.
14. On 28 March 1994, further to the court's request, the applicant's lawyer informed the court that he had lost contact with the applicant. On 30 March 1994 the court asked the local police to inquire about the applicant's address. The police did not reply.
15. On 28 June 1994 the Convention entered into force in respect of Slovenia.
16. On 1 February 1995 the Kranj District Court (Okrožno sodišče v Kranju) gained jurisdiction in the case due to the reform of the Slovenian judicial system. The case was assigned to a judge, who did not deal with it.
17. On 26 August 1996 the case was assigned to a new judge.
18. On 14 November 1996 the Kranj District Court inquired about the applicant's address. The lawyer knew that the applicant had moved to Turkey but was not aware of his new address. It appears that the applicant notified his lawyer about his address on 30 December 1996.
19. On 14 May 1998 the applicant was summoned for a hearing through an assistance of the Ministry of Justice. On 27 October 1998 a hearing was held in the absence of the duly summoned applicant. The only witness examined at the hearing referred to his testimony given in the earlier stages of the proceedings and was not asked any further questions. No other evidence was taken at the hearing. The court subsequently convicted the applicant. A written judgment was served on him on 17 November 1998.
20. On 19 November 1998 the applicant appealed to the Ljubljana Higher Court (Višje sodišče v Ljubljani).
21. On 19 October 1999 the Ljubljana Higher Court acquitted the applicant. The judgment was served on the applicant on 30 December 1999.
22. On 31 December 1999 the applicant asked the Kranj District Court to reimburse him the bail (see paragraph 8 above) together with the default interest and sought reimbursement of the costs and expenses he had incurred in the proceedings.
23. On 23 February 2000 the Kranj District Court ordered the reimbursement of the costs and expenses.
24. On 10 March 2000 the Kranj District Court, relying on section 198 of the Criminal Procedure Act (see paragraph 30 below), ordered the reimbursement of the bail, but refused to reimburse the interests.
25. On 15 March 2000 the applicant appealed against that decision.
26. On 11 May 2000 the Ljubljana Higher Court rejected the appeal. The decision was served on the applicant on 29 August 2000.
27. On 19 March 2001 the applicant instituted civil proceedings in the Ljubljana Local Court (Okrajno sodišče v Ljubljani) seeking reimbursement of the interests incurred in respect of the bail paid in 1987. The proceedings are currently pending on appeal.
28. The Act on the Protection of the Right to a Trial without undue Delay (Zakon o varstvu pravice do sojenja brez nepotrebnega odlašanja, Official Journal, No. 49/2006) became operational on 1 January 2007. Under its sections 1 and 2, the right to a trial within a reasonable time is guaranteed for a party to court proceedings, a participant under the Act governing non-contentious proceedings and an injured party in criminal proceedings.
29. Section 25 lays down the following transitional rules in relation to applications already pending before the Court:
“(1) In cases where a violation of the right to a trial without undue delay has already ceased and the party had filed a claim for just satisfaction with the international court before the date of implementation of this Act, the State Attorney's Office shall offer the party a settlement on the amount of just satisfaction within four months after the date of receipt of the case referred by the international court for the settlement procedure. The party shall submit a settlement proposal to the State Attorney's Office within two months of the date of receipt of the proposal of the State Attorney's Office. The State Attorney's Office shall decide on the proposal as soon as possible and within a period of four months at the latest. ...
(2) If the proposal for settlement referred to in paragraph 1 of this section is not acceded to or the State Attorney's Office and the party fail to negotiate an agreement within four months after the date on which the party filed its proposal, the party may bring an action before the competent court under this Act. The party may bring an action within six months after receiving the State Attorney's Office reply that the party's proposal referred to in the previous paragraph was not acceded to, or after the expiry of the period fixed in the previous paragraph for the State Attorney's Office to decide to proceed with settlement. Irrespective of the type or amount of the claim, the provisions of the Civil Procedure Act concerning small claims shall apply in proceedings before a court.”
30. Section 198 of the Criminal Procedure Act (Zakon o kazenskem postopku, Official Gazette no. 63/94) provides that the bail should be reimbursed once the criminal proceedings terminate with a final decision or a final judgment.
VIOLATED_ARTICLES: 13
6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-85665
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: CHAMBER
DATE: 2008
DOCNAME: CASE OF BOND v. THE UNITED KINGDOM
IMPORTANCE: 4
CONCLUSION: Violation of Article 14+P1-1 - Prohibition of discrimination (Article 1 of Protocol No. 1 - Protection of property)
JUDGES: David Thór Björgvinsson;Ján Šikuta;Lech Garlicki;Nicolas Bratza;Päivi Hirvelä;Stanislav Pavlovschi
TEXT: 5. The applicant was born in 1953 and lives in Merseyside.
6. His wife died on 4 November 1997, leaving one child born in 1992. His second claim for widows’ benefits was made in May 2000 and was rejected on 26 May 2000 on the ground that he was not entitled to widows’ benefits because he was not a woman. After asking for reconsideration, the decision was again confirmed on 13 June 2000. The applicant appealed to the Social Security Tribunal which on 2 October 2000 confirmed the previous decision. The applicant did not appeal further as he considered or was advised that such a remedy would be bound to fail since no such social security benefits were payable to widowers under United Kingdom law.
7. On 1 November 2000 the applicant applied to the Inland Revenue, requesting an allowance equivalent to that received by a widow, namely Widow’s Bereavement Allowance (“WBA”) for the years 1997/8 and 1998/9. On 14 November 2000 the Inland Revenue informed him that he was ineligible for WBA as he was not a woman. The applicant did not appeal further as he considered or was advised that such a remedy would be bound to fail since no such social security benefits were payable to widowers under United Kingdom law.
8. The relevant domestic law and practice is described in the Court’s judgment in the case of Willis v. the United Kingdom, no. 36042/97, §§ 1426, ECHR 2002-IV and Hobbs, Richard, Walsh and Geen v. the United Kingdom, nos. 63684/00, 63475/00, 63484/00 and 63468/00, judgment of 26 March 2007.
VIOLATED_ARTICLES: 14
P1
VIOLATED_PARAGRAPHS: P1-1


ITEMID: 001-71022
LANGUAGEISOCODE: ENG
RESPONDENT: UKR
BRANCH: ADMISSIBILITY
DATE: 2005
DOCNAME: MPP GOLUB v. UKRAINE
IMPORTANCE: 1
CONCLUSION: Inadmissible
TEXT: The applicant, MPP “Golub”, is a Ukrainian company that is registered in Ternopil. The company belongs to a private entrepreneur Mr Ivan Mikheyevich Golub, born in 1947 and residing in Ternopil.
Since August 1995 the applicant had been making plans for the construction of a building containing 30 apartments on 0,25 hectares of land situated in the village of Zhovtneve, in the Kamyanets-Podilsky District of the Khmelnytsky region. It alleged that it received all the necessary construction permits and concluded an agreement with the PMK-35 company (a private company; “PMK-35”) for construction of this building. On 4 October 1996 the Ternopil Regional Arbitration Court declared null and void the construction contract of 9 August 1995 concluded between the applicant and the PMK-35 (PMK-35 was later reorganised into the construction company “Kamyanets Ltd.”).
The applicant alleges that from November 1996 it was allegedly persecuted by the Ukrainian authorities for its attempt to construct the building. Allegedly as a result of this persecution, PMK-35 demolished the foundation of the building it was supposed to construct.
In 1996-2001 the applicant was a respondent and / or plaintiff in unsuccessful litigation before different courts about the building. It did not provide a full account of the litigation, and submitted that the only proceedings of which it complains were the proceedings initiated by it on 24 January 2002 before the Khmelnytsky Regional Commercial Court (case no. 6/661). These proceedings were instituted by the applicant against the PMK-35. However, on 14 February 2002 the Khmelnytsky Regional Commercial Court (“Khmelnytsky Court”), changed the respondent to the construction company “Kamyanets Ltd.” (hereinafter the “respondent”) as the successor of PMK-35. The applicant sought restitutio in integrum. In particular, it claimed that, as the respondent had demolished the building’s foundations constructed by PMK-35, it was obliged to rebuild it.
On 20 August 2002 the Khmelnytsky Court rejected the applicant’s claims as the events about which the applicant complained dated back to 1996. It therefore considered that they were lodged outside the three-year statutory time-limit for the introduction of civil claims, envisaged by Article 71 of the Civil Code.
On 19 November 2002 the L’viv Regional Commercial Court of Appeal rejected the applicant’s appeal as being unsubstantiated and upheld the judgment of 20 August 2002.
On 16 March 2003 the Higher Commercial Court quashed the aforementioned judgment of 20 August and the ruling of 19 November 2002 and remitted the case for a fresh consideration to the Khmelnytsky Court.
On 5 March 2003 the Khmelnytsky Court ruled that it had jurisdiction over the applicant’s case. In the course of the new proceedings before the Khmelnytsky Court, the applicant asked the court to extend the three-year limitation period for lodging its claims against the respondent. It also requested the court to suspend or temporarily terminate the proceedings in its case in view of the criminal investigation pending against the respondent’s director. It lodged additional claims for compensation against the respondent. Initially, the applicant claimed that the damage amounted to UAH 21, 211.0. Later, it increased its claims to UAH 256,579.89.
On 31 March, 15 April and 10 June 2003 the Khmelnytsky Court ordered the applicant to produce substantiation for the amounts it claimed in damages. It also required the applicant to pay the State tax (державне мито) for the introduction of its additional claims.
On 23 June 2003 the Khmelnytsky Court rejected all of the applicant’s motions and requests as unsubstantiated. As to the increase in the applicant’s claims, the Khmelnytsky Court stated that the applicant had failed to substantiate or pay the State tax on them. It further decided that the applicant’s claim should be rejected as it was lodged outside the statutory three-year limitation period (Article 71 of the Civil Code).
On 11 December 2003 the Zhytomyr Regional Commercial Court of Appeal rejected the applicant’s appeal as unsubstantiated, and upheld the judgment of 23 June 2003. In particular, it referred to Articles 71 and 80 of the Civil Code that envisaged a three-year limitation period for lodging claims for damages.
The applicant appealed in cassation directly to the Higher Commercial Court (Вищий Господарський Суд України).
On 21 January 2004 the Higher Commercial Court rejected the cassation appeal as it should have been lodged through the first instance or appeal court which had considered the case and where the case file was. The court referred to Article 109 of the Code of Commercial Procedure.
On 4 February 2004 the applicant re-lodged its appeal in cassation.
On 10 March 2004 the Higher Commercial Court rejected the applicant’s cassation appeal as it was lodged outside the one-month time-limit allowed for the introduction of such appeals (Article 110 of the Code of Commercial Procedure). It also held that the incorrect introduction of the cassation appeal by the applicant does not suspend the one-month time-limit envisaged by Article 110 of the Code of Commercial Procedure. As a result, the cassation appeal was returned to the applicant.
On 5 April 2004 the applicant re-lodged its appeal in cassation for the third time. It also requested renewal of the time-limit for the introduction of the cassation appeal.
On 6 May 2004 the Higher Commercial Court rejected the applicant’s request to extend the time-limit as unsubstantiated. It also stated, inter alia, that the time-limit for lodging an appeal in cassation was 12 January 2004, but the applicant had lodged its appeal on 5 April 2004, i.e. out of time. Furthermore, the Higher Commercial Court reiterated that, under Article 110 of the Code of Commercial Procedure, the refusals of 21 January and 10 March 2004 to allow the applicant’s cassation appeal had no influence on the one-month time-limit for the introduction of an appeal with the Higher Commercial Court. Moreover, Article 109 of the Code of Commercial Procedure clearly states that cassation appeals with the Higher Commercial Court had to be addressed to it through the court of first instance or the court of appeal. As a result, the cassation appeal and the court fees were returned to the applicant.
On 2 June and 20 July 2004 the Higher Commercial Court informed the applicant, by letters, that its complaints about the partiality and lack of independence of the judges who rejected the applicant’s cassation appeals were unsubstantiated. They also informed the applicant that it could appeal in cassation against the rulings of the Higher Commercial Court to the Supreme Court.
On 31 May 2004 the applicant lodged a cassation appeal against the ruling of 6 May 2004 of the Higher Commercial Court with the Supreme Court (Верховний Суд України).
On 16 September 2004 the Supreme Court refused to initiate cassation proceedings.
B. Relevant domestic law
1. Constitution of Ukraine, 28 June 1996
Article 125
“In Ukraine the system of courts of general jurisdiction is formed in accordance with the territorial principle and the principle of specialisation.
The Supreme Court of Ukraine is the highest judicial body in the system of courts of general jurisdiction.
The respective high courts are the highest judicial bodies of specialised courts.
Courts of appeal and local courts shall operate in accordance with the law.
The creation of extraordinary and special courts shall not be permitted.”
2. Law of Ukraine on the Judicial System of 21 June 2001
Section 47
The Supreme Court of Ukraine - the highest judicial body
“1. The Supreme Court of Ukraine is the highest judicial body within the system of courts of general jurisdiction...
2. The Supreme Court of Ukraine:
1) examines in cassation proceedings the decisions of courts of general jurisdiction in cases which, in accordance with procedural law, fall within its jurisdiction and / or re-examines all cases considered by courts of general jurisdiction...”
Transitional Provisions
“1. This law shall become effective from the date of its publication, save for Article 81-1 [of the Code], which shall become effective from 28 June 2002.
...9. Decisions of the judicial divisions of the Higher Arbitration Court of Ukraine or of the Presidium of the Higher Arbitration Court of Ukraine that were not challenged by way of supervisory review proceedings before this Law entered into force, as well as resolutions of the Plenary Higher Arbitration Court of Ukraine, shall be final but may be appealed against to the Supreme Court of Ukraine on the basis of and pursuant to the procedure prescribed by the Code of Commercial Procedure of Ukraine.”
“The appeal in cassation (petition for appeal in cassation) shall be lodged with the Higher Commercial Court through the court of first instance or the commercial court of appeal, which gave a contested judgment or resolution.
The first instance or commercial court of appeal, that has adopted a contested judgment or resolution, shall transfer the appeal in cassation (petition for appeal in cassation) together with the case file to the Higher Commercial Court of Ukraine within 5 days from the moment of its receipt.”
“Appeals in cassation (petition for appeal in cassation) shall be lodged within one month from the date of entry into force of the first instance court’s judgment or the resolution of the court of appeal.”
“The parties to a case as well as the Prosecutor General of Ukraine have the right to lodge with the Supreme Court of Ukraine a cassation appeal against the resolution [or ruling] of the Higher Commercial Court of Ukraine adopted following the review of a decision of a first instance commercial court, that has entered into force, or a resolution of the Commercial Court of Appeal [adopted as a result of its review].”
“The Supreme Court of Ukraine reviews cassation appeals lodged against the resolutions [or rulings] of the Higher Commercial Court of Ukraine if they are lodged:
1) on the basis of the application by the Higher Commercial Court of Ukraine of a law or normative act which contravenes the Constitution of Ukraine;
2) where a decision contravenes decisions of the Supreme Court of Ukraine or of a higher court of a different specialisation on the issue of the application of the norms of substantive law;
3) where the Higher Commercial Court of Ukraine has applied the same provision of the law or any other normative act differently in a similar case;
3-1) due to the inconsistency of the resolutions [or rulings] with the international treaties of Ukraine approved by the Verkhovna Rada of Ukraine;
4) where an international judicial body whose jurisdiction is recognised by Ukraine finds that a resolution has violated the international obligations of Ukraine.”
“The cassation appeal (petition) of the Prosecutor General of Ukraine against the resolution of the Higher Commercial Court shall be lodged within one month from the moment of its [the resolution’s] adoption.
In the event that the existence of the grounds for appeal in cassation after this period has ended, the Supreme Court shall be obliged to rule that it has jurisdiction over the cassation appeal (petition).
The cassation appeal (petition) of the Prosecutor General of Ukraine against the resolution of the Higher Commercial Court of Ukraine shall be lodged with the Supreme Court through the Higher Commercial Court.
The Higher Commercial Court shall transfer the cassation appeal (petition) together with the case file to the Supreme Court within ten days from the moment of its receipt.”
“Proceedings for a review in cassation of a resolution [or ruling] of the Higher Commercial Court of Ukraine by the Supreme Court of Ukraine shall be initiated on the basis of a decision taken by at least one judge in the course of the hearing of the chamber in commercial cases composed of three judges and shall be considered within one month from the moment of arrival of the cassation appeal or petition.
The resolution or a ruling of the Higher Commercial Court shall be reviewed by the judges of the commercial cases chamber of the Supreme Court in the course of a hearing.
The resolution or a ruling of the Higher Commercial Court of Ukraine shall be reviewed in cassation on the basis of the rules for consideration of the case in the first-instance commercial court, save for
“The Supreme Court of Ukraine, following consideration of the appeal in cassation by the Prosecutor General of Ukraine against a resolution [or ruling] of the Higher Commercial Court of Ukraine, is entitled to:
1) leave the resolution [or ruling] unchanged and dismiss the appeal;
2) quash the resolution [or ruling] and remit the case to the first-instance court for further consideration or quash the ruling and remit the case for further consideration to the Higher Commercial Court;
3) quash the resolution [or ruling] and terminate the proceedings in the case.”
“The resolutions [or rulings] of the Higher Commercial Court of Ukraine shall be quashed if they contravene the Constitution of Ukraine, international treaties agreed as binding by the Verkhovna Rada of Ukraine, or if the substantive law has been misapplied otherwise.”
“... A resolution of the Supreme Court of Ukraine shall be final and shall not be subject to appeal.”
“... Resolutions of the Supreme Court of Ukraine, following a re-examination of the case on the basis of an appeal in cassation against the resolution [or ruling] of the Higher Commercial Court of Ukraine shall not include directions as to the admissibility or inadmissibility of evidence, the superiority of one type of evidence over another, the norms of substantive law which shall be applicable or the kind of decision that shall be adopted as a result of the further consideration of the case.”


ITEMID: 001-110541
LANGUAGEISOCODE: ENG
RESPONDENT: MKD
BRANCH: CHAMBER
DATE: 2012
DOCNAME: CASE OF GORGIEV v. "THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA"
IMPORTANCE: 3
CONCLUSION: Preliminary objection joined to merits and dismissed (Article 35-1 - Exhaustion of domestic remedies);Violation of Article 3 - Prohibition of torture (Article 3 - Effective investigation) (Procedural aspect);No violation of Article 3 - Prohibition of torture (Article 3 - Positive obligations) (Substantive aspect);Non-pecuniary damage - award
JUDGES: Ganna Yudkivska;Isabelle Berro-Lefèvre;Julia Laffranque;Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Peer Lorenzen
TEXT: 5. The applicant was born in 1953 and lives in Sveti Nikole.
6. By a court decision of 11 May 1999, the applicant was sentenced to six months’ imprisonment for causing serious injury (a broken forearm) to a third person. On 2 December 1999 he started serving his sentence in Štip Prison (“the prison”) where he was responsible for livestock.
7. On 24 April 2000 he was attacked by a bull, which was not castrated, as a result of which he sustained numerous bodily injuries. After the incident he was transferred by prison vehicle to Štip hospital, where he underwent surgery. The State covered the medical expenses. On 25 April 2000 the bull was put down. On 9 May 2000 the applicant was released from the hospital. The same day, Mr M.K., the prison governor, ordered him to be released early from prison on account of good behaviour.
8. On 28 November 2000 the applicant brought a civil action against the State and the prison (“the defendants”) claiming non-pecuniary damages for the injuries sustained by the bull. His claim was based, inter alia, on sections 173 and 174 of the then valid Obligations Act (see paragraphs 26 and 27 below). He claimed that the bull had attacked him despite the fact that the prison authorities had been alerted about the aggressiveness of the bull, by himself and a certain G. (the first name of Mr G.S., as established in the course of the compensation proceedings, later referred to as Mr G.S.).
9. At a hearing of 23 April 2001, Mr G.S. stated that he, with the applicant and Mr M.S., had been looking after eighteen animals, including the bull. He confirmed that the bull had attacked him and other prisoners, including Mr M.S. and Mr Z.S., and that Mr A.B., a prison guard on duty, had been warned on several occasions before the incident about the aggressiveness of the bull. In a certified written statement of 24 December 2001, Mr M.S., a prisoner at that time, confirmed that the bull had been aggressive and that Mr A.B. had been informed of the fact.
10. Mr A.B. stated that the applicant, in view of his previous experience in handling cattle, had asked to work on the prison farm. Due to his good behaviour, the prison authorities had granted his request despite initial concerns related to his criminal record. After a week’s work-related induction course, the applicant started working on the prison farm. He remained on the farm for a month before he was allowed pasture duties. That corresponded to the practice already established in the prison. After the incident the bull was lame, which according to him, had been due to the injuries on his buttocks. He had called Mr K.M., a vet, to examine the bull. The next day, in the presence of Mr K.M., the bull had been put down. He denied that the applicant or any other prisoner had ever alerted him that the bull was aggressive.
11. Mr I.K., a prisoner at that time who worked on the prison farm, stated that before the incident prisoners had often provoked the bull. He had not heard that any prisoner had ever mentioned, to the prison authorities or to him, that the bull was aggressive.
12. At a hearing of 23 April 2002, Mr K.M. stated that the bull had been regularly examined and treated when needed. He denied that it had been aggressive. He confirmed that immediately after the incident he had visually examined the bull and noticed injuries to the rear of its body, the buttocks and testicles, which according to him, had been inflicted by a blunt object. Those injuries were confirmed in the post mortem report which Mr K.M. had drawn up the same day.
13. The applicant objected to this report, arguing, inter alia, that (1) it was inaccurate, (2) it was biased and had been ordered by the State, as was evident from the date, 1 February 2001, which had been stamped on it and (3) it could not have been post mortem, since on 24 April 2000, the day it had allegedly been drawn up, the bull was still alive.
14. At a hearing on 7 October 2002 the applicant stated that owing to his forty-year experience in rearing livestock he had been assigned to work on the prison farm. Initially, the bull was not aggressive, but it had become anxious during the cows’ mating season. He confirmed Mr M.S.’s statement (see paragraph 9 above) and denied that he had ever hit the bull. He maintained that he had alerted Mr A.B. about the aggressiveness of the bull, but that he had never informed, orally or in writing, Mr M.K., the prison governor.
15. On 7 October 2002 the first-instance court ruled partly in favour of the applicant, ordering the State to pay him compensation in the amount of 300,000 Macedonian denars (MKD, equivalent to approximately 4,890 euros (EUR)) for the injuries, which an expert established as serious. The court established that the State owned the bull, which was considered dangerous within the meaning of section 173 of the Obligations Act (see paragraph 26 below). Referring to the above statements, the court established that the bull had been aggressive and had attacked others. It further rejected as unsubstantiated the arguments of the State that the applicant had contributed to the incident by hitting the bull. In this connection it disregarded the expert report of Mr K.M. for the reasons advanced in the applicant’s objection (see paragraph 13 above).
16. Both parties appealed.
17. On 5 September 2003 the Štip Court of Appeal remitted the case for fresh consideration so that the lower court could establish who had owned the bull.
18. In this respect, the defendants submitted in evidence extracts from the court register according to which an economic unit S. (“the economic unit”), which operated as a separate legal entity within the prison, had been the owner of the bull. The economic unit was established on 15 April 1993 by a decision of the Government. It was run by Mr M.K.
19. In a submission of 30 January 2004, the applicant argued that the defendants had been responsible for the injuries, in particular due to the fact that they had failed, despite having been alerted about the aggressiveness of the bull, to take any measures to protect him.
20. At a hearing of 19 March 2004, Mr M.K. stated that no prisoner had ever complained about the aggressiveness of the bull, either to Mr A.B. or to him. He confirmed that the economic unit was the owner of the bull, that it was a separate legal entity and that he ran it, as provided for in section 70 of the Execution of Sanctions Act (see paragraph 34 below). He further submitted that the applicant had received a monthly work-related allowance from the economic unit.
21. The applicant reiterated that he had complained orally to Mr A.B. about the aggressiveness of the bull on several occasions, but that no complaint whatsoever had been submitted to Mr M.K.
22. On 19 April 2004 the first-instance court dismissed the applicant’s claim, as the defendants did not have the necessary capacity to act in the proceedings. Relying on the extract from the court register (see paragraph 18 above) and Mr M.K.’s statement, it found that the economic unit was the owner of the bull, and that accordingly the defendants bore no responsibility, under section 174 of the Obligations Act, for the injuries the applicant had sustained. In support was an invoice dated after the killing of the bull, according to which the prison had paid the economic unit for the meat. The applicant was ordered to pay the defendants’ costs.
23. On 15 May 2004 the applicant appealed, arguing that no consideration had been given to the State’s responsibility for prisoners’ health and physical integrity, given that he had been injured while in custody. He argued that prisoners’ rights and freedoms should be guaranteed by putting in place control and supervisory mechanisms. He further complained that the first-instance court had failed to establish whether the State, being responsible to protect him while in custody, had undertaken all necessary measures to avoid damage from occurring. In this latter respect, he complained that the prison authorities, despite having been informed that the bull was aggressive, had failed to take any measure to protect him (the applicant). Lastly, he argued that he had been ordered to look after livestock by the prison authorities.
24. On 20 January 2005 the Štip Court of Appeal dismissed the applicant’s appeal, finding no grounds to depart from the established facts and reasoning given by the lower court. The applicant received this decision on 21 February 2005.
25. On 28 February 2005 the applicant requested the public prosecutor to lodge a request for the protection of legality with the Supreme Court. On 20 April 2005 the public prosecutor informed him that there were no grounds for using that remedy.
26. Section 173 of the Obligations Act, as relevant at that time, provided that damage related to a dangerous item was presumed to have been caused by that item, if not otherwise proven.
27. Under section 174, the owner of a dangerous item was responsible for any damage caused by it.
28. Under section 376, a compensation claim became time-barred three years after the victim became aware of the damage and the person responsible. The absolute time-bar for compensation was five years after the occurrence of the damage.
29. Section 6 of the Execution of Sanctions Act, as relevant at that time, provided for respect for the human dignity and the physical and moral integrity of persons serving a sentence.
30. Section 12 (2) and (3) provided that no one should be subjected to torture or to inhuman or degrading treatment or punishment. The right to security of person had to be ensured.
31. Under section 21 (3), convicted persons could not be required to perform activities that were dangerous and detrimental to their health.
32. Under section 67, one or more economic units for prisoners to work in could be organised within a prison.
33. Section 68 provided that the Government should set up the economic units.
34. Under section 70, the prison governor or a person authorised by the governor was to run the economic unit.
35. Section 71 provided that the economic unit was a separate legal entity liable for its debts. It was to have a separate account.
36. Section 111 provided that prisoners worked, in principle, in economic units.
37. Under section 113, prisoners were entitled to a work-related allowance. This was to be regulated by a decision of the prison governor.
38. Section 164 provided that prisoners could lodge an oral complaint with the prison governor or other person authorised by the governor about a violation of their rights or other irregularities.
39. Under section 165, prisoners could also lodge a written complaint with the prison governor within eight days of the alleged violation.
40. Under section 166, the prison governor was required to consider the allegations and to render a decision within fifteen days of receipt of the complaint. The prisoner could appeal against that decision before the Execution of Sanctions Directorate (“the Directorate”).
41. Section 167 provided that the Directorate was required to examine the arguments of the appeal and reach a decision within thirty days of receipt. That decision could be subject of judicial review. The prisoner could seek a judicial decision even if the Directorate had not decided on his or her appeal.
42. Section 142 of the Criminal Code prohibits torture and provides for imprisonment between three months and five years.
43. Section 143 of the Criminal Code provides that a person who, in the performance of his duties, mistreats, intimidates, insults or generally treats another in such a manner that his human dignity or personality is humiliated is to be punished by a term of imprisonment of six months to five years.
44. Under section 294 of the Criminal Code, a person who failed, in the absence of any risk, to report to a competent authority or to take any measure against a fire, inundation, explosion or car accident or to remove any danger to the life or body of an individual would be fined or sentenced to a maximum of one year’s imprisonment.
45. Section 16 of the Criminal Procedure Act provides that criminal proceedings must be instituted at the request of an authorised prosecutor. In cases involving offences subject to prosecution by the State of its own motion or on an application by the injured party, the authorised prosecutor is the public prosecutor, whereas in cases involving offences for which only private charges may be brought the authorised prosecutor is the private prosecutor. If the public prosecutor finds no grounds for the institution or continuation of criminal proceedings, his role may be assumed by the injured party, acting as a subsidiary prosecutor under the conditions specified in the Act.
46. Section 56 provides, inter alia, that where the public prosecutor finds that there are no grounds for prosecuting an offence which may be subject to State prosecution, he shall notify the injured party of his decision within eight days. He shall also inform the injured party that he is entitled to conduct the prosecution himself. The latter may take over or continue the prosecution within eight days.
47. Under section 141, anyone can report a criminal offence subject to State prosecution. The complaint is submitted to the public prosecutor, orally or in writing.
“... 26.13 Health and safety precautions for prisoners shall protect them adequately and shall not be less rigorous than those that apply to workers outside.
26.14 Provision shall be made to indemnify prisoners against industrial injury, including occupational disease, on terms not less favourable than those extended by national law to workers outside ...”
VIOLATED_ARTICLES: 3
NON_VIOLATED_ARTICLES: 3