ITEMID: 001-78882
LANGUAGEISOCODE: ENG
RESPONDENT: LTU
BRANCH: ADMISSIBILITY
DATE: 2006
DOCNAME: ZIVULINSKAS v. LITHUANIA
IMPORTANCE: 4
CONCLUSION: Inadmissible
TEXT: The applicant is a Lithuanian national who was born in 1964 and lives in Kaunas.
The facts of the case, as submitted by the parties, may be summarised as follows.
On 24 December 1996 the Kaunas Regional Court convicted the applicant of aggravated murder, sentencing him to 14 years’ imprisonment.
On 1 February 2002 a search of the applicant’s belongings was carried out at the Vilnius Sniego Prison. The applicant alleges that cash, in the amount of LTL 300 (about EUR 87), and a packet of washing powder were removed. The prison administration considered that the possession of these items was prohibited by the Prison Code and the Prison Interim Rules.
On 4 February 2002 the prison administration, having obtained a prosecutor’s approval, ordered that the confiscated money be transferred to the State’s account.
On 7 February 2002 a special disciplinary commission of the prison decided to impose on the applicant a disciplinary penalty, namely the deprivation of the right to receive or send a parcel on one occasion, and to purchase food in the prison shop for a month.
The applicant brought a court action, contesting the search and the penalty. In particular, he complained that the above decisions had been taken in his absence, in breach of his defence rights. The applicant also alleged that he had suffered double jeopardy by way of the confiscation of his money as well as the imposition of the disciplinary penalty on 7 February 2002. He requested that the money be returned to him.
In the context of the action, the applicant was granted free legal assistance for his representation before a court.
On 6 June 2002 the Vilnius Regional Administrative Court examined the case in the presence of the applicant. The lawyer assigned to represent him failed to appear. The court rejected the applicant’s request to adjourn the examination of the case, having found that the applicant’s lawyer had been duly informed of the hearing.
The applicant’s action was dismissed. The court first held that the applicant’s money had been confiscated and transferred to the State’s account in accordance with Article 41 of the Prison Code. That measure was not deemed a “penalty” under domestic law since it was not included in the exhaustive list of disciplinary penalties (Article 69 of the Prison Code). The court dismissed the applicant’s allegation that he had been punished twice. It was furthermore established that, prior to the search, the prison inspectors had proposed that the applicant voluntarily show them any possibly illicit items. Had the applicant shown the cash, it would not have been confiscated but returned to him, in accordance with Article 83 of the Prison Interim Rules. However, the applicant had failed to do so. The court also noted that the law (providing for the confiscation of any cash held in the prison) was justified in the public interest.
It was also established that the penalty of 7 February 2002 was imposed in accordance with Article 61 of the Prison Code for a breach of prison discipline.
The court noted, however, that the disciplinary proceedings had been conducted in breach of Article 419 of the Prison Interim Rules, which guaranteed to the accused the right to be heard by a special disciplinary commission of the prison before the decision on a disciplinary penalty was taken. Nevertheless, the court considered that that irregularity had not rendered the proceedings as a whole unfair, since the applicant had been afforded the opportunity to submit his explanations to the commission in writing, in accordance with Article 356 of the Prison Interim Rules. There was no evidence that the applicant had intended to present any new arguments in addition to those indicated in his written explanations, as he had not submitted any new statements to the court.
The applicant appealed, complaining that the case had been examined in the absence of his lawyer. He was again granted free legal aid for his representation before the appellate court.
On 3 September 2002 the Supreme Administrative Court examined the case in the presence of the applicant and his lawyer, dismissing the applicant’s appeal. The appellate court upheld the reasoning of the lower court.
The applicant brought another court action against the administration of the Vilnius Sniego Prison, complaining about the lack of space in dormitory no. 5, where he had been sleeping from 17 January 1997 until 10 October 2002. The applicant alleged that the overcrowding resulted in a lack of fresh air at night, causing him insomnia and headaches, and that it had had a very negative impact on his physical and mental health. The applicant claimed non-pecuniary damages in the amount of LTL 5,000 (about EUR 1,448).
On 20 December 2002 the Vilnius Regional Court essentially accepted the applicant’s claim, the applicant being present. The court held inter alia:
“It is undisputed that the official hygienic norms (HN 76:1999) guarantee the minimum space of 3 square metres for each inmate. The conditions in the [Sniego Prison] are not in compliance with the above norm, since the number of inmates exceeds that fixed by the order of 6 February 2001 by the Director of the Prison Department of the Ministry of Justice. While the order establishes 124 places in the [prison], as a matter of fact about 150 inmates are held there at any one time. ...
[T]he Civil Code foresees three conditions for civil liability: [a] the unlawful actions or inaction of the respondent [State institution] or its employees, [b] damage, and [c] the causal link between the actions (inaction) and the damage. It is for the applicant who seeks civil damages to demonstrate the existence of all these elements.”
The Court concluded that the applicant had not shown that he had suffered non-pecuniary damage as a result of the slight overcrowding.
The applicant appealed, stating that the prison administration had not submitted any evidence to show that it had requested additional finances from the Prison Department or the Government. The applicant also pointed out that the lack of space in the Sniego Prison had been acknowledged as a fact.
On 12 February 2003 the Supreme Administrative Court examined the case in the applicant’s presence, dismissing the appeal and upholding the reasoning of the lower court.
From the medical reports submitted by the applicant, it appears that from 13 January 2000 to 1 August 2001 the applicant had consulted the prison doctor eight times. On several occasions he was diagnosed with a number of minor illnesses. The medical report of 30 September 2002 indicated that the applicant should be relieved from work and allowed to stay in bed, without specifying any reasons. Several medical reports dating from 2002 to 2005 also indicated that the applicant had sought consultations due to headaches, hypertension and certain psychological disorders.
On 6 April and 4 November 2004, the Vilnius Regional Court upheld the decisions of the Vilnius City Third District Court to refuse the request of the prison administration for the applicant’s release on licence.
On 28 April 2005 the Vilnius City Third District Court granted the request of the prison administration, ordering the applicant’s conditional release.
The applicant was released on 4 May 2005.
Article 21 of the Constitution prohibits inhuman and degrading treatment.
The Prisons Code (as then in force) provided:
Article 1 § 2:
“Punishment is not intended to cause physical suffering or degrade human dignity.”
Article 41 § 2
“Searches of inmates shall be carried out.”
Article 41 § 4
“Convicts are not permitted to keep money in cash ... Any cash found shall be seized and transferred to the State’s account by a reasoned decision of the head of the prison administration, upon approval by a prosecutor.”
Article 61 § 1
“Convicts breaching the prison regime shall be punished ... by the deprivation of the right to receive or send a parcel on one occasion, and to purchase food in a prison shop during one month.”
Article 70 § 9
“Convicts have the right to appeal against a disciplinary punishment.”
Until 1999, Article 77 § 1 of the Prison Code established the minimum floor-space per inmate at 2 square metres. From 1999 this norm was increased to 3 square metres, in accordance with Sanitary Standard HN:1999 (approved by the order of the Minister of Health on 22 October 1999).
Article 83 of the Prison Interim Rules provided that any items belonging to a detainee, which have been surrendered to the prison administration voluntarily, shall be put into storage and returned to the owner upon release.
Article 419 of the Prison Interim Rules provided a right for an inmate to be present before a special disciplinary commission of the prison.
Article 6.271 of the Civil Code (in force from 1 July 2001):
“1. Damage caused by the unlawful acts of public institutions shall be compensated by the State from the budget, irrespective of the fault of an actual civil servant ...
3. For the purposes of this Article, the term “action” shall be taken to mean any action (active action or failure to act) of a public institution or its employees, which directly affects the rights, liberties or interests of persons ... .
4. The civil liability of the State ... shall arise if employees of public institutions fail to act in accordance with the law.”
Article 6.273 of the Civil Code provides that, in cases where the State is liable to cover the damage, it shall be represented by the Government or an institution authorised by the Government.


ITEMID: 001-67274
LANGUAGEISOCODE: ENG
RESPONDENT: POL
BRANCH: CHAMBER
DATE: 2004
DOCNAME: CASE OF PASZKOWSKI v. POLAND
IMPORTANCE: 4
CONCLUSION: Violation of Art. 5-3;Non-pecuniary damage - financial award
JUDGES: Georg Ress
TEXT: 8. The applicant was born in 1966 and lives in Gdańsk, Poland.
9. On 24 August 1994 the applicant was arrested on suspicion of extorting protection money from an escort agency. Subsequently, eleven other persons were charged and remanded in custody in connection with the investigation against the applicant.
10. In the course of the investigation the applicant’s detention was several times prolonged by the Gdańsk Regional Prosecutor (Prokurator Wojewódzki) and the Gdańsk Regional Court (Sąd Wojewódzki). The prosecution authorities also obtained two expert reports concerning the applicant’s mental health.
11. On 27 June 1995 the Gdańsk Regional Prosecutor (Prokurator Wojewódzki) lodged a bill of indictment with the Gdańsk Regional Court (Sąd Wojewódzki). The applicant was indicted together with eleven other persons on charges of robbery and extortion. The prosecution asked the court to hear evidence from 106 witnesses.
12. On 26 July 1995 the applicant lodged an application for release. He submitted that his wife had been placed in a mental hospital and that their daughter had been left without care. On 18 August 1995 the Gdańsk Regional Court upheld the detention order. The court held that, given the number of suspects involved in the case and the serious nature of the offence in question, keeping the applicant in custody was necessary to ensure that the process of obtaining evidence followed its proper course. On 6 September 1995 the Gdańsk Court of Appeal (Sąd Apelacyjny) dismissed the applicant’s further appeal.
13. On 30 April 1996 the applicant made an application for release. It was rejected by the Gdańsk Regional Court on 14 May 1996. The court held that keeping the applicant in custody had been necessary to ensure the proper conduct of the proceedings. On 12 June 1996, on an appeal by the applicant, the Gdańsk Court of Appeal upheld this decision. The court found that the applicant’s family situation did not militate against his continuing detention and that there were no grounds on which to release the applicant, as defined in Article 218 of the Code of Criminal Procedure. Furthermore, it also underlined the gravity of charges brought against the applicant.
14. On 4 December 1996 the applicant made yet another application for release. It was rejected by the Gdańsk Regional Court on 10 December 1996 as the applicant failed to submit any new arguments which would justify his release.
15. On 30 December 1996 the Gdańsk Regional Court asked the Supreme Court (Sąd Najwyższy) to prolong the applicant’s detention. On 16 January 1997 the Supreme Court granted the application and prolonged his and eight other co-accused’ detention until 30 June 1997.
16. On 6 June 1997 the applicant made yet another unsuccessful application for release from detention.
17. On 26 June 1997 the Gdańsk Regional Court lodged a request under Article 222 § 4 of the Code of Criminal Procedure with the Supreme Court, asking it to prolong the applicant’s detention for a further period of six months. On 13 August 1997 the Supreme Court extended the applicant’s detention until 1 December 1997, considering that it was necessary to ensure the proper conduct of the proceedings. The court stressed that the case was particularly complex as it concerned several co-accused. Furthermore, it observed that the trial court still had to hear evidence from 50 witnesses.
18. On 26 September 1996 the composition of the trial court had to be changed due to the presiding judge’s illness.
19. Between October and December 1997 the trial court on four occasions allowed the applicant’s family to visit him in prison.
20. On 25 November 1997 the Gdańsk Regional Court again asked the Supreme Court to prolong the applicant’s detention. On 19 December 1997 the Supreme Court decided to extend the applicant’s detention until 30 April 1998. It considered that even though the proceedings had been lengthy, the trial court could not be held responsible for the delay. The composition of the trial court had to be changed due to the presiding judge’s illness. Moreover, some of the accused contributed to the length of the proceedings by lodging numerous motions with the court. The Supreme Court also referred to the complexity of the case, the fact that it involved several accused and the large number of witnesses.
21. In January, February, March 1998 the applicant’s family was allowed, on five occasions, to visit him in prison.
22. On 30 April 1998 the Gdańsk Regional Court released the applicant under police supervision. The court held that the detention had already been prolonged three times by the Supreme Court but to no avail, as the proceedings had still not been terminated. In the court’s opinion, any prolongation of his further detention on remand would be tantamount to serving a prison sentence.
23. Before 30 April 1998 the trial court listed 31 hearings, of which 17 were cancelled or adjourned.
24. On 22 October 2002 the Regional Court gave judgment. It sentenced the applicant to four years’ imprisonment.
25. At the material time the rules governing detention on remand were contained in Chapter 24 of the Law of 19 April 1969 “Code of Criminal Procedure” (Kodeks postępowania karnego) (“the Code”) entitled “Preventive measures” (Środki zapobiegawcze). The Code is no longer in force. It was repealed and replaced by the Law of 6 June 1997 (commonly referred to as the “New Code of Criminal Procedure”), which entered into force on 1 September 1998. The Code listed as “preventive measures”, inter alia, detention on remand, bail and police supervision.
26. Article 209 set out the general grounds justifying imposition of the preventive measures. That provision read:
“Preventive measures may be imposed in order to ensure the proper conduct of proceedings if the evidence against the accused sufficiently justifies the opinion that he has committed a criminal offence.”
27. Article 217 § 1 defined grounds for detention on remand. The relevant part of this provision, in the version applicable until 1 January 1996, provided:
“1. Detention on remand may be imposed if:
(1) there is a reasonable risk that an accused will abscond or go into hiding, in particular when he has no fixed residence [in Poland] or his identity cannot be established; or
(2) there is a reasonable risk that an accused will attempt to induce witnesses to give false testimony or to obstruct the proper course of proceedings by any other unlawful means; or
(3) an accused has been charged with a serious offence or has relapsed into crime in the manner defined in the Criminal Code; or
(4) an accused has been charged with an offence which creates a serious danger to society....”
28. On 1 January 1996 sub-paragraphs 3 and 4 of Article 217 § 1 were repealed and the whole provision was redrafted. From that date onwards the relevant sub-paragraphs read:
“(1) there is a reasonable risk that an accused will abscond or go into hiding, in particular when his identity cannot be established or he has no permanent abode [in Poland]; or
(2) [as it stood before 1 January 1996].”
Paragraph 2 of Article 217 provided:
“If an accused has been charged with a serious offence or an intentional offence [for the commission of which he may be] liable to a sentence of a statutory maximum of at least eight years’ imprisonment, or if a court of first instance has sentenced him to at least three years’ imprisonment, the need to continue detention in order to secure the proper conduct of proceedings may be based upon the likelihood that a heavy penalty will be imposed.”
29. The Code set out the margin of discretion in maintaining a specific preventive measure. Articles 213 § 1, 218 and 225 of the Code were based on the precept that detention on remand was the most extreme preventive measure and that it should not be imposed if more lenient measures were adequate.
VIOLATED_ARTICLES: 5
VIOLATED_PARAGRAPHS: 5-3


ITEMID: 001-58537
LANGUAGEISOCODE: ENG
RESPONDENT: POL
BRANCH: CHAMBER
DATE: 2000
DOCNAME: CASE OF WITOLD LITWA v. POLAND
IMPORTANCE: 1
CONCLUSION: Violation of Art. 5-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings
JUDGES: Marc Fischbach
TEXT: 6. The applicant, born in 1946, is disabled in that he is blind in one eye and his sight in the other is severely impaired.
7. On 5 May 1994 at noon the applicant, with the dog he uses as a guide dog, went to Kraków Post Office no. 30 to check his post-office boxes. He was accompanied by W.K. The applicant's post-office boxes had been opened and were empty. The applicant complained to the post-office clerks who subsequently called the police, alleging that the applicant was drunk and behaving offensively.
8. On the same day, at 12.20 p.m., the applicant was taken by police officers to the Kraków sobering-up centre (Izba Wytrzeźwień) and detained there for six hours and thirty minutes. The staff of the centre filled out a form recording the applicant's stay.
9. The form was pre-printed. It bore the number 006107/94 and was entitled “Card recording a stay in a sobering-up centre”. It had been filled out by hand. After details of the applicant's identity, the form was divided into seven sections. The first section, entitled “Request for admission”, indicated that the applicant had arrived at the centre at 12.45 p.m. The reason for the arrest was partly typed and partly handwritten. The operative part of section 40(1) of the Law of 26 October 1982 (cited below in paragraph 26) was typed in. The handwritten note read:
“[The applicant] made a row at the post office in Urocza Osiedle.”
10. The second section, entitled “Doctor's assessment” and signed by a doctor, read:
“1. Anamnesis:
(1) Circumstances, kind and quantity of alcohol drunk, facts surrounding intoxication: [handwriting] evident smell of alcohol – refused to take a breath test
...
2. Examination of the person brought in:
(1) Behaviour: lucid; unconscious; somnolent; talkative; calm; rowdy; reticent; composed [the words “lucid” and “talkative” were underlined by hand]
(2) Mood: cheerful; depressed, average; excited [the word “average” was underlined by hand]
(3) Walk: steady; unsteady; lack of balance [the word “unsteady” was underlined by hand]
(4) Speech: clear; blurred; mumbling [the word “blurred” was underlined by hand]
(5) Traces of vomit: visible; invisible [the word “invisible” was underlined by hand]
(6) Pulse: regular; irregular; strong; weak [the words “regular” and “strong” were underlined by hand]
(7) Heart: regular beat; irregular beat; clear tones; unclear [the words “regular beat” and “clear tones” were underlined by hand]
(8) Pupils: wide; normal; abnormal; narrow; slow to react; no reaction [the word “normal” was underlined by hand]
(9) Skin: pale; red; normal supply of blood; blue [the words “normal supply of blood” were underlined by hand]
(10) Lungs: [illegible handwriting]
(11) State of abdominal cavity: [handwriting] abdomen [illegible adjective]
(12) Injuries: [handwriting] none
(13) Other ailments: [handwriting] sight seriously impaired
(14) Description of the state of the person examined: [handwriting] state of moderate intoxication
[Print] As a result of the examination I find that the person brought in:
(1) is in a state of intoxication justifying keeping him in a sobering-up centre for [handwriting] 6 [print] hours [that entry was underlined by hand]
(2) should be taken to a public health-care establishment [not selected]
(3) should not be placed in a sobering-up centre [not selected]”
11. The subsequent sections were entitled “III. Decision of the head of the centre/shift” and “IV. Objects to be kept in the centre's custody”. This section listed the objects taken from the applicant as follows:
“... identity card [no.] DB 3429943; [illegible description of other documents]; 654,700 [old] zlotys (PLZ); Polyot watch [made of] golden metal; tear-gas gun; [illegible description of other items]; keys (eighteen); purse; jacket; shirt; trousers; belt; shoes.”
12. Section V, entitled “Alcohol taken from [the person concerned]”, contained no entry. Section VI, entitled “Stay in the sobering-up centre”, contained a list of the measures which could be applied to an intoxicated person (they included administering medicines, a warm or cold bath, solitary confinement, physical restraint by means of belts or a strait-jacket) and a description of his behaviour. The applicant's behaviour, mental and physical state were assessed as “good”. The last section, “VII. Release from the sobering-up centre”, recorded that after six and a half hours the applicant had been assessed by the doctor as “sober” and released at 7.15 p.m. A handwritten note indicated that the applicant had refused to sign the card.
13. On 10 May 1994 the applicant requested the Kraków District Prosecutor (Prokurator Rejonowy) to institute criminal proceedings against the police officers who had arrested him on 5 May 1994 and against the staff of the Kraków sobering-up centre. He alleged that the policemen had beaten him and complained about the behaviour of the staff of the centre.
14. On 29 May 1994 the applicant sued the Treasury in the Kraków Regional Court (Sąd Wojewódzki), seeking compensation “for unlawful attacks by agents of the State on 5 May 1994 and theft of personal possessions”. The court considered that the applicant's claim should be examined as a claim for compensation for manifestly unjustified arrest, under Article 487 of the Code of Criminal Procedure.
15. On 28 November 1994 the Kraków Regional Court dismissed the claim, finding that the applicant's arrest had been justified. That decision reads as follows:
“On the basis of [the applicant's] testimony, written information from the XIIth Police Station and the [materials] contained in file no. 2 DS 1842/94 of the Kraków District Prosecutor, that is, the detention form ... no. 006107 containing the request for admission, we find that on 5 May 1994 [the applicant], being under the influence of alcohol, caused a disturbance of public order [zakłócił porządek publiczny] in Post Office no. 30 ... in Kraków. The police intervened at the request of the postal clerks. Since the arrestee smelt of alcohol, he was taken to the sobering-up centre, where, following a medical examination, he was assessed as being 'moderately intoxicated' and admitted.
The above facts indicate that [the applicant's] arrest was justified. There is therefore no basis for awarding him compensation under the provisions of Chapter 50 of the Code of Criminal Procedure.”
16. On 1 December 1994 the Kraków-Śródmieście District Prosecutor, on suspicion that offences of assault, theft and infringement of the applicant's personal rights had been committed, opened an investigation relating to the applicant's complaint of 10 May 1994.
17. On 5 December 1994 the applicant appealed against the decision of the Kraków Regional Court of 28 November 1994. He argued that this decision was not based on any sound evidence, but only on the statements of the policemen. He further stated that he had been assaulted by the policemen and that his personal belongings had been stolen. The applicant relied on Articles 3, 6 § 1 and 8 of the Convention.
18. On 25 January 1995 the Kraków Court of Appeal (Sąd Apelacyjny) dismissed the appeal. The reasons for its decision read:
“The [applicant's] appeal is not justified. Contrary to his submissions, on the material date, that is, on 5 May 1994 [the applicant] was under the influence of alcohol; his state was described as 'moderate intoxication'. While in that state, he went to Post Office no. 30, where he disturbed public order. Employees at that office called the police ... [T]he policemen, finding that the applicant smelt of alcohol, took him to the sobering-up centre. As a result of the [medical] examination it was found that he was in a state of 'moderate intoxication' and detained until he sobered up. The applicant refused to take a breath test.
The [applicant's belongings] were taken from him in the presence of the policemen and placed in the centre's custody. ... In that connection it must be said that the policemen did not rob the applicant. The policemen's intervention and the placing of the applicant in the sobering-up centre were justified.
[We] cannot therefore share [the applicant's] view that the policemen committed robbery and that the applicant was arrested and placed in the sobering-up centre groundlessly.”
19. On 28 February 1995 the Kraków-Śródmieście District Prosecutor discontinued the investigation opened at the applicant's request. However, on 1 December 1995 the Kraków Regional Prosecutor (Prokurator Wojewódzki), upon the applicant's appeal, quashed this decision and ordered a supplementary investigation.
20. On 19 February 1996 a policeman from the Kraków-Grzegórzki police heard evidence from W.K., who had witnessed the events of 5 May 1994 at the post office. The relevant part of the latter's testimony read:
“I have known [the applicant] since 1969 but we do not have regular contact and do not meet frequently. About one year ago, on a date which I cannot [now] specify, I met [the applicant] in Nowa Huta [a district of Kraków]. We went together to an optician and, then, to the post office. He did not tell me why he was going to the post office. He had his dog with him and, since no dogs were permitted to enter the office, I remained outside the building, holding the dog on the leash [at the applicant's request]. [The applicant] went into the building. After some time he came back, in a state of agitation, and said that either his post-office boxes had not been locked [by the postal clerks] or someone had broken into them. He immediately went back into the office. Out of curiosity, I followed him with the dog. Immediately afterwards, two policemen entered the building and approached [the applicant]. He told me to get the dog out of the building. At the same time, one of the policemen approached me and checked my identity card. I then left the building. When I was standing outside, I saw the policemen taking [the applicant] out of the building, escorting him to a patrol car and leaving. In my view, [the applicant] remained calm throughout this incident; therefore, I do not know why he was taken away by the policemen. I did not see the policemen hitting him while escorting him; they were holding him with their hands. I cannot recall whether or not [the applicant] told the policemen that the dog I was holding on the leash was his ...”
21. On 26 February 1996 the Kraków-Grzegórzki police discontinued the investigation, finding that no offence had been committed. The relevant parts of the reasons for the decision read:
“Accordingly, evidence was heard from the policemen [involved in the incident of 5 May 1994]. They stated that [the applicant] had been brought to the [Kraków] sobering-up centre in connection with a row made by him and his state of intoxication. They did not hit him; they merely kept hold of him while taking him to a patrol car and putting him inside. They stated that [the applicant] had not had a dog with him and that, inside the post office, there was a man holding a dog [on a leash], namely W.K. However, nobody knew that this dog belonged to [the applicant]. ... A doctor from the [Kraków] sobering-up centre confirmed that [the applicant] had been intoxicated ...”
This decision was confirmed by the Kraków-Śródmieście District Prosecutor on 27 February 1996.
22. On 5 March 1996 W.K., having been acquainted with the reasons for the above decision, made a statement before a notary. The relevant part of this statement read:
“I, W.K., hereby declare before a notary that, after being acquainted with [the decision to discontinue the investigation], I disagree with the description [given therein] of events which I witnessed.
When evidence was taken from me, I entirely denied the insinuation that [the applicant] had been drunk; ... I spent one hour with him prior to the incident and I [still] totally exclude such a possibility.
[The applicant] did not make a row at the post office; he raised his voice merely in order to be heard above the clamour being made by a large number of clients ... about two hundred persons queuing at the post office counters at the same time. ... He loudly demanded to speak to the postmaster in order to obtain an explanation of why his post-office boxes had been unlocked ... and [why] one of these boxes had been broken. ... His dog remained outside because the building was overcrowded so the dog could not have been inside ... as the policemen claimed; they [simply] lied. The postmaster did not come to see [the applicant]; instead, the policemen appeared and demanded that we show them our identity cards. I gave them my card and [the applicant], calmly, gave his. They checked the cards thoroughly and made notes in their notebooks. By checking [the applicant's] documents they must have learnt that he was an invalid [i.e. that his sight was severely impaired] ... They gave me back my identity card but [the applicant] was taken to a patrol car and taken away. During his arrest [the applicant] behaved in a calm manner; he only requested the policemen either to let him take his dog with him or to ensure [that it would be taken by someone else]. I witnessed this. They did not respond to his request and left ...”
23. On 5 April 1996 the Kraków-Śródmieście District Prosecutor reopened, ex officio, the investigation into the events of 5 May 1994 but discontinued it on 23 May 1996, finding that no offence had been committed.
24. The Law of 26 October 1982 on Education in Sobriety and the Fight against Alcoholism (Ustawa o wychowaniu w trzeźwości i przeciwdziałaniu alkoholizmowi – “the Law of 26 October 1982”) lays down measures which may be applied in respect of two categories of persons: those “addicted to alcohol” and those who are “intoxicated”. Sections 21 to 38 deal with voluntary or compulsory treatment of “persons addicted to alcohol”, whereas sections 39 and 40 set out measures which may be applied to “intoxicated persons”.
25. Pursuant to section 39 of the Law, sobering-up centres shall be set up and managed by the authorities of municipalities with more than 50,000 inhabitants.
26. Section 40 of the Law (in the version applicable at the material time) provided, in its relevant part:
“1. Intoxicated persons who behave offensively in a public place or a place of employment, are in a condition endangering their life or health, or are themselves endangering other persons' life or health, may be taken to a sobering-up centre or a public health-care establishment, or to their place of residence.
2. In the absence of a sobering-up centre, such persons may be taken to a [police station].
3. [Intoxicated] persons who have been taken to a sobering-up centre or a [police station] shall remain there until they are sober but for no longer than twenty-four hours ...
4. Where it is justified to institute proceedings [in respect of an intoxicated person] with a view to [his undergoing] compulsory treatment [for addiction to alcohol], [the authorities concerned] shall immediately report [this fact] to the relevant committee for fighting alcoholism ...”
27. A person arrested and subsequently confined in a sobering-up centre under section 40 of the Law is not entitled to bring proceedings challenging the lawfulness of the deprivation of his liberty since, according to Article 206 of the Code of Criminal Procedure, only a person arrested on suspicion of having committed an offence may appeal against a decision to arrest him (see the Supreme Court judgment (no. I KZP 43/91) of 12 February 1992 reached by a bench of seven judges, OSNKW 1992/5-6/32).
28. The Ordinance of the Minister of Administration, Local Economy and Environmental Protection of 7 May 1983 on taking intoxicated persons to sobering-up centres, the organisation of those centres, the medical care provided by them and the fees for transportation to and staying in soberingup centres or police stations (repealed by an Ordinance of the Minister of Health and Social Care of 23 October 1996) set out detailed rules relating to detention in a sobering-up centre.
29. Article 9 of the Ordinance (in the version applicable at the material time) provided:
“1. A person taken to a sobering-up centre shall promptly be given a medical examination.
2. Following the medical examination, a doctor shall ascertain whether such person should be placed in a sobering-up centre ..., or should be placed in a hospital or other medical establishment ..., or whether there are no signs of intoxication justifying a placement in a sobering-up centre.”
30. No provision obliged the authorities to carry out in addition any tests (such as blood or breath tests) to establish whether or not a given person was intoxicated. The relevant part of Article 16 of the Ordinance provided:
“An alcohol-level test shall be carried out at the request of the intoxicated person ...”
31. According to Article 21 of the Ordinance, a person placed in a sobering-up centre was to be charged for both lodging and transportation there, at rates estimated to amount to, respectively, 20% and 4% of an average monthly salary in the public sector. If the person concerned did not have sufficient money, a sobering-up centre was entitled, under Article 22, to take a lien over his possessions.
32. Disturbance of public order (zakłócenie porządku publicznego) was at the material time a minor offence punishable under Article 51 of the Code of Administrative Offences. That Article, in the version applicable at the material time, provided:
“1. Anyone who, by shouting or by noisy, alarming or other unruly behaviour disturbs the public peace or the public order, or a [citizen's] night rest or who behaves offensively in a public place, shall be liable to a maximum of two months' imprisonment or a fine of [between PLZ 100,000 and] 1,500,000 ...
2. If the behaviour in question is of a hooligan nature or the person concerned was intoxicated, he shall be liable to [a maximum of three months'] imprisonment ... or a fine [of between PLZ 100,000 and 5,000,000].”
33. On 8 September 1949 the Consultative Assembly of the Council of Europe adopted Recommendation 38. The text of the draft provision of the future Article 5 was contained in Article 2 and read as follows:
“In this Convention, the Member States shall undertake to ensure to all persons residing within their territories:
(1) Security of person, in accordance with Articles 3, 5 and 8 of the United Nations Declaration;
...
(3) Freedom from arbitrary arrest, detention, exile and other measures, in accordance with Articles 9, 10 and 11 of the United Nations Declaration ...”
34. On 4 February 1950 the following amendment to Article 2 § 3 as drafted in Recommendation 38 was presented by Mr Salén (Sweden):
“Article 2 § 3: add at the end:
'This provision should not exclude the right to take necessary measures to fight vagrancy and alcoholism or to ensure respect of obligations to pay a family upkeep allowance.' ”
35. On 6 February 1950, Mr Salén withdrew his amendment,
“provided that the statement of reasons, incorporated in the Report of the Committee of Experts, stated clearly:
'... that the text of Article 6 [at this point, a general clause authorising the limitation of guaranteed rights and freedoms in order to ensure the recognition and respect of rights and liberties of others and to satisfy the requirements of morality, public order and security in a democratic society] covers also the right of Member States to take the necessary measures to fight vagrancy and alcoholism and to ensure respect for the obligation to pay family upkeep allowance.' ”
36. The following commentary on Article 6 of the preliminary draft Convention was then recorded:
“The Swedish representative further requested that it be put on record that the text of Article 6 covered, in particular, the right of signatory States to take the necessary measures for combating vagrancy and drunkenness [l'alcoolisme in the French text] or to ensure respect of obligations to pay alimony costs; the Committee [of Experts] had no doubt that this could be agreed to since such restrictions were justified by the requirements of public morality and order.”
37. From 6 to 10 March 1950, at the Second Session of the Committee of Experts, the counterpart of the present Article 5 § 1 of the Convention was discussed and redrafted eventually as draft Article 6. The following draft Article 6 was presented:
“1. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:
(a) the lawful detention of a person after conviction by a competent court;
(b) the lawful arrest and detention of a person for non-compliance with the lawful order of a court, or in order to secure the fulfilment of any obligation prescribed by law;
(c) the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or which is reasonably considered to be necessary to prevent his committing a crime, or fleeing after having done so;
(d) the lawful detention of minors by lawful order for the purpose of educational supervision;
(e) the lawful detention of persons for the prevention of the spreading of infectious diseases, of persons of unsound mind, alcoholic or drug addicts or vagrants;
(f) the lawful arrest or detention of a person to prevent his effecting an unauthorised entry into the country or a person against whom deportation or extradition proceedings are pending.”
38. At this point, the French version of sub-paragraph (e) read as follows:
“e) s'il s'agit de la détention régulière d'une personne susceptible de propager une maladie contagieuse, d'un aliéné, d'un alcoolique, d'un toxicomane ou d'un vagabond;”
39. Finally, on 3 November 1950, following the last examination of the text of the Convention by the Committee of Experts, the above text was replaced by the provision of the present Article 5 § 1 of the Convention; the changes made by the Committee of Experts were described as “formal corrections and corrections of translation”. It was on this occasion that in the English text the word “alcoholic” in sub-paragraph (e) was replaced by “alcoholics”.
VIOLATED_ARTICLES: 5
VIOLATED_PARAGRAPHS: 5-1


ITEMID: 001-5625
LANGUAGEISOCODE: ENG
RESPONDENT: ESP
BRANCH: ADMISSIBILITY
DATE: 1999
DOCNAME: RIGOPOULOS v. SPAIN
IMPORTANCE: 1
CONCLUSION: Inadmissible
TEXT: The applicant [Mr Angelos Rigopoulos] is a Greek national. He was born in 1946 and lives in Spain. He was represented before the European Commission of Human Rights (“the Commission”) by Mr J. Molins Otero, of the Madrid Bar.
The facts, as submitted by the parties, may be summarised as follows.
As part of a judicial investigation into a case of international drug trafficking, Central Investigating Court no. 1 of the Audiencia Nacional was informed that the Archangelos, a vessel flying the Panamanian flag, was on the Atlantic Ocean sailing towards Europe with a cargo of cocaine. After obtaining verbal authorisation from the Panamanian embassy in Spain, in accordance with Article 17 §§ 3 and 4 of the United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, adopted in Vienna on 20 December 1988, the investigating judge, in a decision 20 January 1995, ordered that the vessel, which was on the high seas of the Atlantic Ocean approximately 3,000 nautical miles (5,556 km) from the Canary Islands, be boarded and searched.
On 23 January 1995 the crew of a Spanish vessel, the Petrel I, belonging to the customs inspection department boarded the Archangelos. After an exchange of fire with several members of the crew who had barricaded themselves into the engine room, the fourteen-member crew surrendered and the vessel set sail again on 26 January 1995. The members of the crew were nationals of various States, and included two Spaniards and the applicant, the vessel’s captain, who is a Greek national. The applicant was transferred to the vessel belonging to the Spanish customs police, where he was placed under police supervision.
After searching the Archangelos, the customs police officers seized sixty-eight packets of cocaine weighing 2,713 kg in all. The narcotic powder was attached to wheels, which were on rails, so that the drug could be very quickly thrown into the sea.
On 23 January 1995 the Madrid Central Investigating Court ordered reporting restrictions in respect of the judicial investigation for one month.
On 26 January 1995 the Central Investigating Court made an order in which it noted firstly that the Archangelos
According to the Government, the arrested members of the crew, including the applicant, had been told on 24 January 1995 that they were being detained and had been informed of their rights. On 27 January 1995 they had been notified of the decision of the investigating judge ordering them to be detained. A record of those measures appears in the Petrel I’s log. They had also been invited to name persons whom they wished to be informed of their detention. The applicant had named a Mrs R.T. The embassies of the States of which the detained crew members were nationals had also been informed of their detention. Additionally, from 31 January 1995 the applicant had had a lawyer in Las Palmas and in Madrid. In that connection, his lawyer had sent him a letter in English on 31 January 1995 informing him that his wife had instructed lawyers in London to defend him.
The applicant maintained that the decision of 26 January 1995 had not been sent to him until 2 February 1995, as could be seen from the investigating judge’s decision of that date. Moreover, he had had no communication – even by radio telephone – with the investigating judge during his period of detention on the Petrel I. The applicant claimed that it was not until he had arrived at the port of Las Palmas that he was informed in the manner prescribed by law of his rights as a person in detention. He submitted that the brief entries in the Petrel I’s log were of no evidential value and that in any event, as a Greek national with no interpreter or lawyer, he could not be expected to understand, even vaguely, the content of the decision of 26 January 1995.
The Archangelos and the Petrel I arrived in Las Palmas (Grand Canary) at 7.30 a.m. on 7 February 1995. At the port of Las Palmas, a judicial commission took charge of the prisoners. Assisted by an interpreter, the commission informed the applicant of the Central Investigating Court’s decision ordering him to be detained pending investigation. He was informed of his rights in the presence of a lawyer and an English-to-Spanish interpreter. On the same day the members of the crew who had been placed in detention were taken to Madrid by air. On 8 February 1995 they were brought before the relevant judicial authority and questioned in the presence of their lawyers, with interpreters on hand.
On 16 and 27 February 1995 the applicant lodged an application for the proceedings to be set aside and for his release, alleging that there had been a violation of his fundamental rights. In a decision of 22 March 1995 the Central Investigating Court dismissed his application. An appeal lodged by the applicant was dismissed by the Second Division of the Audiencia Nacional in a judgment of 23 April 1996.
The applicant lodged an appeal (recurso de amparo) with the Constitutional Court. He complained that he had been illegally detained, that he had not been brought promptly before a judicial authority and that he had not been informed immediately and in a way that was understandable to him of his rights or of the reasons for his detention. He relied on Article 17 §§ 1, 2 and 3 of the Spanish Constitution (right to liberty and security). In a judgment of 10 February 1997 the Constitutional Court dismissed his appeal. It declared, by way of a preliminary observation, that, notwithstanding that the applicant had been detained while on the high seas, the enforcement of a judicial decision remained subject to the Spanish Constitution and, in particular, to the duty to respect fundamental rights and freedoms, this being in accordance with the case-law established by the European Court of Human Rights in its judgments in the cases of Drozd and Janousek v. France and Spain (judgment of 26 June 1992, Series A no. 240) and Loizidou v. Turkey (judgment of 18 December 1996, Reports of Judgments and Decisions 1996-VI).
Dealing first with the complaint based on Article 17 § 1 of the Constitution, the Constitutional Court noted that the boarding and searching of the Panamanian vessel had been authorised by the Central Investigating Court (after that court had been informed that the vessel in question was being used for cocaine trafficking), that two Spanish nationals had been on board and that the search had been authorised by Panama. In that connection, the Constitutional Court reiterated that section 23(4) of the Judicature Act of 1 July 1985 gave the Spanish courts jurisdiction over acts committed by Spaniards or aliens outside Spanish territory if those acts constituted an offence like (as in the case in point) drug trafficking.
The court added that enforcement of the measure in question aboard a foreign sea-going merchant vessel was potentially contrary to the rules of international law, since the vessel was subject to the jurisdiction of the flag State. Accordingly, any exception to that principle of international law had to be based on a rule of law, which, in this case, was provided by Article 17 §§ 3 and 4 taken together with Article 4 §§ 1 and 3 of the United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, an instrument to which Spain and Panama were Contracting Parties.
Under those provisions, any State, having obtained authorisation from the flag State, could take appropriate measures in respect of a vessel being used for drug trafficking and in respect of the members of the crew. The court found that the measure taken by the Central Investigating Court had complied with all the requirements of the convention in question. Consequently, the applicant had been detained in accordance with the law and the manner of his detention had complied with the applicable international rules.
With regard to the complaint based on Article 17 § 2 of the Constitution, the Constitutional Court pointed out that any detention lasting more than seventy-two hours had to be authorised by the relevant judicial authority. In the instant case the Central Investigating Court had decided in a reasoned order of 26 January 1995 that the applicant should be held in detention pending investigation. A judicial authority had therefore reviewed the applicant’s deprivation of liberty at the end of the period of custody prescribed by the Constitution.
On 9 December 1997 the applicant was released on bail.
On 13 October 1998 the Audiencia Nacional convicted the applicant of drug trafficking and sentenced him to nine years’ imprisonment and a fine of two hundred million pesetas.
“1. Everyone has the right to liberty and security of person. No one may be deprived of his liberty other than in accordance with the provisions of this Article and only in the cases and in the manner prescribed by law.
2. Pre-trial detention shall last no longer than is strictly necessary to carry out investigations to ascertain the facts. A person detained shall, in any event, be released or placed at the disposal of the judicial authority within a maximum period of seventy-two hours.
3. Any person arrested shall be informed immediately, and in a way that is understandable to him, of his rights and the reasons for his arrest, and shall not be forced to make a statement. He shall be guaranteed the assistance of a lawyer in police and judicial proceedings, on the terms laid down by law.
4. A habeas corpus procedure shall be provided for by law so that anyone who has been illegally arrested can be immediately brought before a judicial authority. The maximum duration of pre-trial detention shall also be determined by law.”
“1. Toda persona tiene derecho a la libertad y a la seguridad. Nadie puede ser privado de su libertad, sino con la observancia de lo establecido en este artículo y en los casos y en la forma previstos en la ley.
2. La detención preventiva no podrá durar más del tiempo estrictamente necesario para la realización de las averiguaciones tendentes al esclarecimiento de los hechos, y, en todo caso, en el plazo máximo de setenta y dos horas, el detenido deberá ser puesto en libertad o a disposición de la autoridad judicial.
3. Toda persona detenida debe ser informada de forma inmediata, y de modo que le sea comprensible, de sus derechos y de las razones de su detención, no pudiendo ser obligado a declarar. Se garantiza la asistencia de abogado al detenido en las diligencias policiales y judiciales, en los términos que la ley establezca.
4. La ley regulará un procedimiento de habeas corpus para producir la inmediata puesta a disposición judicial de toda persona detenida ilegalmente. Asimismo, por ley se determinará el plazo máximo de duración de la prisión provisional.”
“1. The Parties shall cooperate to the fullest extent possible to suppress illicit traffic by sea, in conformity with the international law of the sea.
…
3. A Party which has reasonable grounds to suspect that a vessel exercising freedom of navigation in accordance with international law and flying the flag or displaying marks of registry of another Party is engaged in illicit traffic may so notify the flag State, request confirmation of registry and, if confirmed, request authorisation from the flag State to take appropriate measures in regard to that vessel.
4. In accordance with paragraph 3 or in accordance with treaties in force between them or in accordance with any agreement otherwise reached between those Parties, the flag State may authorise the requesting State to, inter alia:
(a) board the vessel;
(b) search the vessel;
(c) if evidence of involvement in illicit traffic is found, take appropriate action with respect to the vessel, persons and cargo on board.
…”


ITEMID: 001-72975
LANGUAGEISOCODE: ENG
RESPONDENT: SVN
BRANCH: CHAMBER
DATE: 2006
DOCNAME: CASE OF ROJNIK v. SLOVENIA
IMPORTANCE: 4
CONCLUSION: Violation of Art. 6-1;Violation of Art. 13;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings
JUDGES: David Thór Björgvinsson;John Hedigan
TEXT: 5. The applicant was born in 1960 and lives in Žalec.
6. On 4 March 1995 the applicant was injured in a car accident. The perpetrator of the accident had taken out insurance with the insurance company ZT.
7. On 13 August 1996 the applicant instituted civil proceedings against ZT in the Celje District Court (Okrožno sodišče v Celju) seeking damages in the amount of 7,488,140 tolars (approximately 31,200 euros) for the injuries sustained.
At an undetermined time in 1997, the judge presiding the case was appointed to the Celje Higher Court (Višje sodišče v Celju) and the case was transferred to a new judge.
Between 5 November 1996 and 22 January 1999 he made three requests that a date be set for a hearing.
Between 27 April 1997 and 18 June 2001 the applicant lodged fourteen preliminary written submissions and/or adduced evidence.
Of the six hearings held between 27 January 1998 and 26 June 2001 none was adjourned at the request of the applicant.
During the proceedings the court appointed two medical experts and a road traffic expert. The court once replaced the designated road traffic expert with a new one.
At the last hearing the court decided to deliver a written judgment. The judgment, upholding the applicant’s claim in part, was served on the applicant on 10 December 2001.
8. On 17 December 2001 the applicant appealed to the Celje Higher Court. ZT cross-appealed.
On 19 February 2002 the court requested the first-instance court to correct its judgment in the part concerning the penalty interests.
On 3 June 2003 the first-instance court corrected its judgment.
On 10 June 2003 the applicant appealed.
On 27 January 2005 the court dismissed the applicant’s appeals, allowed the ZT’s appeal in part and lowered the damages awarded.
The judgment was served on the applicant on 28 February 2005.
9. On 10 March 2005 the applicant lodged an appeal on points of law with the Supreme Court (Vrhovno sodišče).
The proceedings are still pending.
VIOLATED_ARTICLES: 13
6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-22668
LANGUAGEISOCODE: ENG
RESPONDENT: FRA
BRANCH: ADMISSIBILITY
DATE: 2002
DOCNAME: DELAGE et MAGISTRELLO v. FRANCE
IMPORTANCE: 1
CONCLUSION: Inadmissible
JUDGES: Christos Rozakis
TEXT: The applicants are Ms Arlette Delage, who was born in 1948 and lives at Soignolles en Brie, and Mr Charles Magistrello, who was born in 1939 and lives at Fontenay-sous-Bois. Both are French nationals. They were represented before the Court by Mr Patrick Renaud, a lawyer practising in Paris.
The facts of the case, as submitted by the parties, may be summarised as follows.
Ms Delage was the manager of a firm of general building contractors Mecabati Sarl (“Mecabati”), a private company she had formed in 1984. Mr Magistrello, who was the managing director of a hotel complex, had business dealings with Mecabati and had awarded it contracts to fit out and decorate some of his hotels.
As a result of financial difficulties Mecabati was declared insolvent on 30 June 1991.
By a judgment of 11 July 1991 the Créteil Commercial Court, composed of Mr Kalt, President, and Mr Levêque and Mr Duhamel, made an order for the judicial reorganisation of Mecabati under the simplified procedure and appointed Mr Levêque as the insolvency judge and Mr Kalt as his substitute.
On 8 August 1991, after hearing the report of the insolvency judge, Mr Levêque, a differently constituted bench of the Créteil Commercial Court ordered the company’s liquidation under the supervision of the court, renewed the appointments of the insolvency judge and the substitute insolvency judge and appointed a liquidator.
On 13 February 1992 the Commercial Court made an order on its own initiative for an audit of the company’s accounts.
On 8 October 1992 it appointed Mr Kalt as insolvency judge in place of Mr Levêque.
On 19 November 1993 the auditor appointed on 13 February 1992 lodged his report.
On 24 November 1993 the liquidator issued proceedings against Ms Delage, in her capacity as de iure manager of the company, and against Mr Magistrello, as de facto manager, in which he sought a receivership order against them, a declaration that they were jointly and severally liable to pay the entire shortfall in the company’s assets and a decision on whether they should be declared personally bankrupt.
The case was heard in the Commercial Court on 9 December 1993. The court was presided over by Mr Kalt, assisted by two wing members. The representative of State Council’s Office sought an order declaring the applicants personally bankrupt. The court reserved judgment and granted the parties permission to exchange notes to the court in deliberations and to adduce documentary evidence by no later than 20 December 1993. The applicants sent various documents to the court on that date.
Meanwhile, by an order of 17 December 1993 the insolvency judge, Mr Kalt, declared an application by Ms Delage for the liquidator’s replacement inadmissible and refused to refer it to the Commercial Court, which was the sole body with jurisdiction to hear it.
By a judgment of 13 January 1994 the Créteil Commercial Court dismissed the applicants’ applications and made a receivership order against them. In that connection, it added:
“And on the basis of the finding in the insolvency judge’s report that reorganisation will only be ordered to protect undertakings and there is no prospect of recovery in the instant case, the court makes an order for the commencement of judicial liquidation proceedings against [the applicants]...”
The Commercial Court also made an order declaring the applicants personally bankrupt for a period of thirty years, and ruled that it was immediately enforceable pending appeal. The applicants and the company appealed against that judgment. In their submissions, the applicants complained inter alia of the insolvency judge’s presence on the bench that had delivered the judgment.
By a judgment of 6 October 1994 the Paris Court of Appeal upheld all the provisions of the judgment, noting inter alia:
“... the court heard the report of the insolvency judge from which it emerged that there were no prospects of recovery in the instant case;
... there is no provision of the Law of 1985 that prevents an insolvency judge from sitting on the bench that delivers judgment.”
By a judgment of 6 May 1997 the Court of Cassation dismissed the applicants’ appeal on points of law, holding that the insolvency judge’s presence on the bench that had made the order for the liquidation of the applicants’ assets did not contravene Article 6 § 1 of the Convention, even though he had previously acted as the insolvency judge in the liquidation of the company.
Section 188 of Law no. 85-98 of 25 January 1985 on the Judicial Reorganisation and Liquidation of Undertakings provides:
“At any stage of the [judicial reorganisation or liquidation] proceedings the court may make a personal bankruptcy order against any de iure or de facto manager, whether paid or unpaid, of a juristic person...”
Article 24 of the implementing decree, Decree no. 85-1388 of 27 December 1985, provides:
“... The court shall, after submission of the insolvency judge’s report, decide all issues arising out of the judicial reorganisation or liquidation that are referred to it.”


ITEMID: 001-107805
LANGUAGEISOCODE: ENG
RESPONDENT: DEU
BRANCH: CHAMBER
DATE: 2011
DOCNAME: CASE OF ALTHOFF AND OTHERS v. GERMANY
IMPORTANCE: 3
CONCLUSION: Violation of P1-1;Just satisfaction reserved
JUDGES: André Potocki;Ann Power-Forde;Dean Spielmann;Karel Jungwiert;Klaus Köpp;Mark Villiger;Renate Jaeger
TEXT: 7. The facts of the case, as set out by the parties, can be summarised as follows.
8. The present dispute is between Germany, which succeeded to the rights of the heirs of the original Jewish owners of the disputed property (the initial injured party – “Erstgeschädigte”) under the German-US Agreement of 13 May 1992, and the applicants, who are the heirs of a shopkeeper who had acquired the disputed property in 1939 (the initial sale having taken place in 1938). The property was subsequently expropriated at the time of the former German Democratic Republic (GDR). The applicants are thus the heirs of the subsequent injured party – “Zweitgeschädigte”.
9. The disputed plots of land, having respective surface areas of 1000 sq.m, 990 sq.m and 1030 sq.m, are located at Babelsberg-Potsdam, near Berlin, on the territory of the former GDR.
10. By a notarially-registered contract of 23 April 1938, Mr A. and Mrs B., who were Jewish and partners in the limited partnership “Mitteldeutsche Gamaschenfabrik E.B. und A.”, the owner of the disputed plots of land, sold them for 66,000 reichsmarks (RM) to the Berlin company A. Wülfing. Having been the victims of persecution under the NationalSocialist regime, Mr A. died in 1940 and Mrs B. in 1945. Mrs E.F., daughter of Mrs B., emigrated to the United States of America in 1939 and became a US citizen in 1951.
11. By a notarially-registered contract of 28 July 1939, the disputed plots of land were then sold for RM 61,000 to Mr G. Althoff, a shopkeeper, who was registered as the owner at the land registry, and the applicants are his heirs.
12. On 27 January 1953, in the former GDR, the land was expropriated and became “people’s property” (Volkseigentum) under the control of a State-owned film company.
13. Mrs E.F. subsequently brought proceedings in the USA for the loss of the disputed property, in accordance with the US law of 18 October 1976 on claims against the GDR, which entitled US citizens whose property in the former GDR had been expropriated before that date or which had been sold under duress in the National-Socialist period to file claims for compensation.
14. In a final decision of 27 August 1980, the US Foreign Claims Settlement Commission acknowledged that Mrs E.F. was entitled to 5,500 US dollars (USD) in compensation, plus interest at 6% from September 1951.
15. After German reunification the property was transferred to the company “dok Filmstudio GmbH”, whose sole shareholder was the Office for special reunification-related questions (Bundesanstalt für vereinigungsbedingte Sonderaufgaben).
16. In a decision of 17 October 1997, that Office observed that the disputed property had been sold for 1,300,000 deutschmarks (DM) for investment purposes to the company Weiland GbR, in accordance with the Investment Priority Act (Investitionsvorrangsgesetz) of 14 July 1992 (see relevant domestic law and practice, paragraph 32 below).
17. On 10 October 1990 the applicants filed a claim for the restitution of the property with the Office for the Resolution of Outstanding Property Issues for the Land of Brandebourg – (Landesamt für die Regelung offener Vermögensfragen – “Office of the Land”), in accordance with the relevant provisions of the Law on the resolution of outstanding property issues – “the Property Act” (Gesetz zur Regelung offener Vermögensfragen – Vermögensgesetz) of 23 September 1990 (see relevant domestic law and practice, paragraph 31 below).
18. On 13 May 1992 the Federal Republic of Germany (FRG) and the United States of America signed the German-US Agreement on the settlement of certain property claims – “the German-US Agreement” (Abkommen zwischen den Regierungen der Bundesrepublik Deutschland und der Vereinigten Staaten von Amerika über die Regelung bestimmter Vermögensansprüche), which provided for a global settlement of compensation claims by US citizens resulting from the US law of 18 October 1976 on claims against the GDR. By a law of 21 December 1992 the German-US Agreement became an integral part of domestic law; it entered into force on 28 December 1992 (see relevant domestic law and practice, paragraph 34 below). On 29 April 1997, the FRG paid a total sum of over 102 million US dollars in compensation.
19. On 20 October 1998 the Property Rights Clarification Act (Vermögensrechtsbereinigungsgesetz) retrospectively amended section 30a(1) of the Property Act, providing that the time-limit for the filing of restitution claims, initially set at 31 December 1992, did not apply to the rights of the FRG under the German-US Agreement (see relevant domestic law and practice, paragraph 33 below).
20. In a letter of 27 April 1999 the FRG indicated to the Office of the Land that in accordance with Article 3 § 9, second sentence, of the GermanUS Agreement, it had taken over Mrs E.F.’s title to the disputed property.
21. In a decision of 12 July 2001 the Office of the Land dismissed the applicants’ restitution claim and indicated that the proceeds from the sale of the disputed property in 1997 was indeed to be paid to the FRG. It first noted that the initial sale of the disputed plots of land in 1938 had been obtained under duress, within the meaning of section 1(6) of the Property Act. Consequently, the rights pertaining to the property fell within the scope of the German-US Agreement. In accordance with sections 2(1) and 6(6a) of the Property Act, read together with Article 3 § 9, second sentence, of the German-US Agreement, the FRG had become the legal successor to Mrs E.F. She had opted for the payment of compensation and had thus renounced her claims against the FRG.
22. The applicants brought proceedings before the Potsdam Administrative Court, on the ground that they had a lawful entitlement to restitution, having regard to the fact that Mrs E.F. had not lodged any application to that effect before the time-limit of 31 December 1992, as provided for by section 30a(1), first sentence, of the Property Act, notwithstanding the subsequent amendment of that provision by the Property Rights Clarification Act of 20 October 1998.
23. In a judgment of 28 November 2002, the Potsdam Administrative Court upheld the Office’s decision on all points. In the court’s view, even if the FRG’s right to restitution had lapsed, because no application had been lodged to that effect before the time-limit of 31 December 1992 fixed by section 30a(1), first sentence, of the Property Act, its right had subsequently been revived following the amendment of that section in 1998. Moreover, the applicants had not acquired an irrevocable (unabänderlich) right under section 14 (right to property) of the Basic Law (Grundgesetz), because at the time of the FRG’s claim in 1999, the Office of the Land had not yet given its decision.
24. In a judgment of 21 January 2004 the Federal Administrative Court dismissed the applicants’ request for judicial review. It first noted that, under the relevant provisions of the German-US Agreement, the property rights of Mrs E.F. had been transferred to the FRG. Given that Mrs E.F had been compensated in 1976, the JCC (Jewish Claims Conference), which had also filed a restitution claim, could not claim property rights. The Administrative Court then confirmed that the FRG had not filed a valid restitution claim before the time-limit of 31 December 1992 as provided for by section 30a(1), first sentence, of the Property Act. The law on the Agreement of 21 December 1992 had not provided for any specific provisions in that connection and the letter of 1 October 1992 from the Federal Office for the Resolution of Outstanding Property Issues (Bundesamt für die Regelung offener Vermögensfragen – “the Federal Office”) to the authorities of the Länder could not be regarded as a valid claim because it was not sufficiently specific. Referring to its settled case-law, the Administrative Court added that the fixing of this time-limit corresponded to a provision of substantive law, which meant that the rights of the FRG had lapsed with the expiry of the statutory time-limit. However, by amending section 30a(1) of the Property Act in 1998, the legislature had “remedied” the failure to file a claim within that time-limit. It was only from that date onwards that the property rights of Mrs E.F. could be considered to have been effectively transferred to the FRG, and not at the time of the complete payment of compensation as provided for in Article 3 § 9 of the German-US Agreement (see relevant domestic law and practice, paragraph 34 below). The aim of that legislative amendment had been to ensure the survival of the former property rights and to rectify that omission. In addition, again with reference to its settled case-law, the Administrative Court took the view that the applicants’ rights to restitution under the Property Act did not benefit from the protection of Article 14 § 1 of the Basic Law, because those rights did not correspond to existing property rights but stemmed from the State’s wish to provide redress for past injustice. Lastly, in accordance with the settled case-law of the Federal Constitutional Court, it was in this case a question of “quasi-retrospective” effect (unechte Rückwirkung); having regard to the confused and uncertain legal situation existing at the time, the applicants had not acquired any “confidence warranting protection” (schutzwürdiges Vertrauen) or any legal certainty that their position as “subsequent” injured party afforded them an entitlement to the restitution of the disputed property. Moreover, the JCC had also filed a restitution claim within the statutory time-limit, and its rights would have prevailed over those of the applicants if it had been successful.
25. In a decision of 14 August 2004 the Federal Constitutional Court, sitting in a committee of three members, refused to allow a constitutional complaint by the applicants. It observed in particular that section 30a(1), fourth sentence, of the Property Act was compatible with Article 14 § 1 of the Basic Law, even if it were presumed in the applicants’ favour that their entitlement to restitution under the Property Act, or to the payment of the proceeds of the sale under section 16(1), first sentence, of the Investment Priority Act, enjoyed the protection of Article 14 § 1. In the Constitutional Court’s view, section 30a (1), fourth sentence, of the Property Act had to be understood as a provision defining the content and limits (Inhalts- und Schrankenbestimmung) of the right to property within the meaning of Article 14 § 1, second sentence, of the Basic Law, and struck a fair balance between the interests at stake. Under section 3 (2) of the Property Act, taken together with section 1(2), first sentence, of the Law of 27 September 1994 on compensation in accordance with the Property Act – “the Compensation Act” (Gesetz über die Entschädigung nach dem Gesetz zur Regelung offener Vermögensfragen – Entschädigungsgesetz – see domestic law and practice, paragraph 31 in fine, below), the applicants, being regarded as the “subsequent” injured party, were, from the outset, simply entitled to compensation. Under Article 3 § 9, second sentence, of the German-US Agreement, the FRG had succeeded to the rights of the “initial” injured parties, who, having regard to the compensation that they had already received, could no longer claim any rights based on the Property Act. In filing a claim concerning property rights based on the German-US Agreement, the FRG had thus sought to secure a property right equivalent to that of an “initial” injured party that had already materially been “claimed” and compensated for. The legislature had thus wished to clarify the situation for that kind of right.
26. The Constitutional Court added that even if a different position were adopted, namely, as the Federal Administrative Court had found, that the rights under section 1(6) of the Property Act had lapsed on 31 December 1992 and had then been revived following the amendment of section 30a(1) of the Property Act, the new version of that section had struck a fair balance between the interests at stake. The property rights under the German-US Agreement had originally been provided for by the US law of 1976 and had already been compensated for in 1980 as regards the disputed property. At the time of the ratification of the German-US Agreement it had been presumed that the total amount to be paid in compensation could reach USD 190 million. The FRG could not have been expected ultimately to renounce its property rights for which it had had to pay compensation in such a high amount – even though the transfer had not become effective until the determination of the final transfer payment (nach Feststellung des endgültigen Überweisungsbetrags). For this reason, the German State had in particular sent the Länder authorities the lists of the rights covered by the Agreement, in a letter of 2 October 1992 from the Federal Office. In addition, the law of 20 December 1993 on the acceleration of registration procedures (“Register-Beschleunigungs-Gesetz”) extended the possibility for the competent authorities to enter reservations in the land register (stipulating that the property could be sold only with the State’s approval) in respect of the rights arising from the German-US Agreement.
Under those circumstances, there could not have been any “confidence warranting protection” as to the maintaining of the statutory situation as it had first existed according to the initial version of section 30a(1).
27. On 12 January 2005 the applicants filed a request for compensation for the loss of the disputed property with the Office of the Land of Brandebourg, in accordance with the relevant provisions of the Compensation Act.
28. In a decision of 20 March 2007 the Office of the Land dismissed the applicants’ request on the ground that they had not filed it within a period of six months after the final rejection of the restitution claim, as provided for by section 7a(3c) of the Property Act.
29. The applicants then appealed to the Potsdam Administrative Court, which stayed the proceedings pending the judgment of the European Court of Human Rights (“the Court”) in the present case.
30. Article 14 § 1 of the Basic Law reads as follows:
“Property and the right of inheritance shall be guaranteed. Their content and limits shall be defined by statute.”
31. On 29 September 1990 the Property Act of 23 September 1990, which was also to be part of the Unification Treaty (Einigungsvertrag), came into force. Under the Treaty the Property Act would remain in force in Germany after the reunification of the two German States on 3 October 1990. The Act’s purpose was, in particular, to settle any conflicts relating to property on the territory of the GDR in a manner that was socially acceptable, in order to ensure long-term legal security in Germany.
Section 1(1) of the Property Act provides that it is applicable to rights in respect of property that was expropriated at the time of the GDR and section 1(6) provides that it also applicable to persons against whom proceedings were brought in Germany between 30 January 1933 and 8 May 1945 on racist, political, religious or ideological grounds (weltanschauliche Gründe) and who had consequently lost their property “by forced sale, expropriation or other means”. Sections 2 and 3 of the Act complement section 1.
Section 3(1) of the Property Act provides that any property that became “people’s property” will be returned on request unless excluded by the law. Section 3(2) provides that if a number of parties make a request for restitution concerning the same property, it is the party that was “first” injured which is thus entitled. That means that, as in the present case, when property was sold under duress during the National-Socialist period, then subsequently expropriated in the former GDR, the heirs of the original Jewish owners have a priority right to restitution. In such a case where restitution of the property is excluded (section 4(1) of the Property Act), the heirs of the purchasers of the property during the National-Socialist period are entitled to the payment of compensation provided for by the law of 27 September 1994 on compensation according to the Property Act.
32. Section 16 § 1, first sentence, of the Investment Priority Act provides that if restitution of property is impossible because the property has been sold, the person entitled may request payment of a sum equivalent to the value of his property rights.
33. Section 30a(1), first sentence, of the Property Act stipulates that restitution claims had to be filed no later than 31 December 1992. The Property Rights Clarification Act of 20 October 1998 amended the section in question by introducing a fourth sentence according to which that timelimit does not apply to rights held by the FRG under the Agreement of 13 May 1992 between the FRG and US Governments on the settlement of certain property claims.
34. Article 3 § 1 of the German-US Agreement provides that US citizens have to choose between receiving compensation or bringing proceedings before the German courts to obtain reparation in accordance with the US law of 18 October 1976 on claims against the GDR. If they opt for the first solution, they forfeit any right of action against the FRG, under Article 3 § 6, second sentence, of the Agreement. Under Article 3 § 9, second sentence, their property rights are then transferred to the FRG at the time of the complete payment of compensation. That statutory succession also applies to rights arising from any harmful measures taken under the National-Socialist regime.
By a law of 21 December 1992 the German-US Agreement became part of domestic law. It entered into force on 28 December 1992.
35. In a judgment of 26 May 1999 the Federal Administrative Court indicated that section 30a(1), fourth sentence, of the Property Act (which, in its new version, provides that the time-limit initially set for restitution claims does not apply to rights stemming from the German-US Agreement) did not apply if the legislative amendment had taken place after the issuance of a restitution notice by the competent authority and the transfer of the property to an entitled party other than the German Government. In that judgment it further held that, having regard to its wording, meaning and aim, section 30a(1), first sentence, of the Property Act applied at the outset to all property claims. In order to ensure legal certainty, the time-limit initially fixed also had to apply to the “derived” claims (abgeleitete Ansprüche) arising from the German-US Agreement.


ITEMID: 001-58167
LANGUAGEISOCODE: ENG
RESPONDENT: CHE
BRANCH: CHAMBER
DATE: 1998
DOCNAME: CASE OF SCHÖPFER v. SWITZERLAND
IMPORTANCE: 3
CONCLUSION: No violation of Art. 10
JUDGES: R. Pekkanen
TEXT: 6. The applicant, who is a lawyer and former member of the Cantonal Council (Großrat), lives in Root (Canton of Lucerne). At the material time he was an advocate acting as defence counsel for a Mr S., who had been placed in detention pending trial (Untersuchungshaft) on suspicion of committing a number of thefts.
7. On 6 November 1992 Mr S.’s wife informed Mr Schöpfer that the two district clerks (Amtsschreiber) of the Hochdorf district authority (Amtsstatthalteramt) had urged her to instruct a different lawyer to defend her husband if he wished to be released.
8. On 9 November 1992 the applicant then held a press conference in his office in Lucerne at which he declared that at the Hochdorf district authority offices both the laws of the Canton of Lucerne and human rights were flagrantly disregarded, and had been for years (werden sowohl die Luzerner Gesetze als auch die Menschenrechte in höchstem Grade verletzt, und zwar schon seit Jahren). He pointed out that he was speaking to the press because it was his last resort (deshalb bleibt mir nur noch der Weg über die Presse).
9. The following day the daily newspaper Luzerner Neueste Nachrichten (“the LNN”) published the following article (at page 25):
“Former Christian Democratic Party (CDP) councillor demands investigation into Hochdorf district authority
‘I won’t let those gentlemen make a fool of me any longer’
Former CDP councillor Alois Schöpfer makes serious accusations against the Hochdorf district authority.
‘I’ve had enough of letting those gentlemen at the Hochdorf district authority make a fool of me’ thundered Alois Schöpfer. ‘So the only recourse left to me is to take the matter to the press.’ The former CDP councillor was prompted to take the unusual step of approaching the public during pending proceedings on account of a case entrusted to him as a lawyer in mid-October. At that time his client had already been in pre-trial detention at the Hochdorf district authority prison for a month.
Detained without an arrest warrant
The 20 year-old father of a one and a half year-old daughter was arrested on 18 August with his brother for the theft of car radios and clothes, and released after admitting the offences. When, on 15 September, he went to the Lucerne cantonal police to ask how his brother was, he was again immediately arrested.
‘When I enquired at the Hochdorf district authority about the arrest warrant, I was told that the order had been issued to him orally’ said Alois Schöpfer, who sees the conduct of the police as a clear breach of the cantonal Code of Criminal Procedure, Article 82 of which provides: ‘The arrest shall be carried out by the police, duly authorised by a written warrant of arrest.’
When these accusations were put to him, the Hochdorf prefect [Mr H. B.] was giving nothing away. ‘Where I’m in charge nobody is arrested without a written arrest warrant’, he said. ‘I cannot say any more about a pending case.’ On the other hand, Alois Schöpfer, who was asked by the accused’s wife to defend her husband, will not remain silent any longer: ‘The wife came to me because the lawyer appointed under the legal aid scheme had still not contacted his client even though he had been in pre-trial detention for six weeks.’
Schöpfer immediately contacted the officially appointed counsel who handed the case over to him. However, the Hochdorf district authority did not want Schöpfer to take over as defence counsel under the legal aid scheme and refused his request on 29 October on the ground that there were no reasons to dismiss the lawyer to whom the case had been assigned until then. He was, however, free to represent his client on a private basis.
Schöpfer as the ground for detention?
The last straw for Alois Schöpfer came when the accused’s wife informed him last Friday that [T.B.] and [B.B.], the two district clerks, had advised her not to keep him on the case. ‘They told me’ she confirmed for the LNN, ‘that my husband would not be released as long as Alois Schöpfer remained his defence counsel.’ But [T.B.] denied any involvement: ‘That’s ridiculous. I never said anything like that. [B.B.] can confirm that. He was present when I spoke with the man’s wife.’
Alois Schöpfer will not let the matter drop: ‘I demand the immediate resignation of the prefect and the district clerks and a thorough investigation of the case by an impartial commission of inquiry from outside the canton.’”
In a box inside the article was the following text:
“Accusations
It is not the first time that serious charges have been levelled against the Hochdorf district authority. Prefect [H.B.] was previously prosecuted in connection with the conviction of [H.S.], the Rothenburg debt collection officer [Betreibungsbeamter]. He was fined 400 francs by the Lucerne District Court for disclosure of official secrets. Although the Court of Appeal also found that the objective elements of the offence had been made out, [H.B.] was acquitted on appeal.”
The article was illustrated by two photographs, one showing the Hochdorf district authority building and the other Prefect H.B. with the caption: “Where I’m in charge nobody is arrested without a written arrest warrant (Bei mir wird niemand ohne schriftlichen Haftbefehl festgehalten).”
10. Another daily newspaper, the Luzerner Zeitung, also published, on 10 November 1992, an article on the press conference under the title: “Young man arrested without a warrant? Lucerne lawyer accuses Hochdorf district authority of breaking the law (Junger Mann ohne Haftbefehl verhaftet? Luzerner Anwalt wirft Amtsstatthalteramt Hochdorf Rechtsverletzungen vor).”
11. On 10 November 1992 the public prosecutor’s office (Staatsanwaltschaft) of the Canton of Lucerne issued a reply to the effect that the accused person concerned had been arrested in accordance with the law, and that the applicant had not filed an appeal against the refusal to allow him to take over as the officially appointed defence counsel. This reply was published in the press on 11 November 1992.
12. On 13 November 1992 the Luzerner Zeitung published a summary of a press communiqué issued by the applicant in reply to the public prosecutor’s statement. According to Mr Schöpfer, S.’s arrest had breached both the Convention and – “in a crude and unacceptable manner (in absolut grober und nicht mehr zu verantwortender Weise)” – the cantonal Code of Criminal Procedure. The applicant also quoted the following passage from a letter he had received from another lawyer: “The situation in Hochdorf is far from satisfactory... What makes it even worse is the fact that the judicial authorities know what is going on in Hochdorf and even make indirect allusions to the situation.” In conclusion, Mr Schöpfer called on the Court of Appeal and the Cantonal Council to look into the case.
13. On 15 October, 3 November and 13 November 1992 the applicant had lodged applications for the release of Mr S. (Haftentlassungsgesuch), which the Hochdorf prefect refused on 19 October, 5 November and 16 November 1992 respectively.
Mr Schöpfer lodged an appeal (Rekurs) against the last of these decisions. This was dismissed by the Court of Appeal (Obergericht) of the Canton of Lucerne on 30 November 1992, on the ground, among others, that the prefect had subsequently validly extended Mr S.’s pre-trial detention, so that Mr S. no longer had standing to bring an action challenging the conditions of his arrest. It noted, however, that after his arrest Mr S. should have been brought, not before a district clerk, but before the prefect himself, the only person who could be considered a judge or other officer for the purposes of Article 5 § 3 of the Convention. It therefore ordered that its decision should be brought to the attention of the public prosecutor’s office, which was the prefect’s supervisory authority (Aufsichtsbehörde).
14. On 16 November 1992 the Lucerne Bar’s Supervisory Board (Aufsichtsbehörde über die Rechtsanwälte) informed Mr Schöpfer that his conduct raised certain ethical questions, relating in particular to the need for discretion (Zurückhaltung) with regard to pending proceedings and to covert publicity, and asked him what he had to say on the matter.
In a letter of 18 November which he communicated to the press, the applicant replied that he had acted only in the general interest and in that of his client.
15. On 16 November 1992 the Hochdorf prefect had lodged a complaint (Anzeige) with the Supervisory Board and asked for disciplinary proceedings to be brought against Mr Schöpfer. He asserted that by his statements the latter had not only slandered the prefect and his two district clerks but had also been guilty of a serious breach of lawyers’ professional ethics (Standesregeln) by spreading false accusations through the media rather than making use of the available legal remedies.
16. On 21 December 1992 the Supervisory Board brought disciplinary proceedings against the applicant.
On 15 March 1993, pursuant to Article 13 of the Statute of the Bar (Anwaltsgesetz) of the Canton of Lucerne (see paragraph 18 below), it fined him 500 Swiss francs (CHF) for a breach of professional ethics (Verletzung von Berufs- und Standespflichten).
In its decision the Supervisory Board observed in particular that the applicant had omitted to refer his complaints – which were serious – in the first place to the public prosecutor’s office or the Court of Appeal, which were the relevant supervisory bodies for the district authority. He had therefore failed to observe the discretion which lawyers were required to maintain, in public, with regard to pending proceedings. In addition, he had engaged in covert publicity (versteckte Reklame) and cheap showmanship (Effekthascherei), thus demonstrating that he was more concerned about his own public profile than about the merits of the case. In any event, lawyers’ statements to the press always had to be not only of real public interest (reelles öffentliches Interesse) but also objective and moderate in tone (objektiv in der Darstellung und sachlich im Ton).
But the tone of a number of passages in Mr Schöpfer’s statements to the press left something to be desired. For example he had said: “I won’t let those gentlemen make a fool of me any longer” and “I demand … a thorough investigation of the case by an impartial commission of inquiry from outside the canton” and also “So the only recourse left to me is to take the matter to the press.” This last statement was not even true, since at that time Mr Schöpfer had not even applied to the relevant supervisory bodies for the district authority, nor had he tried exercising the ordinary legal remedies. He had thus disparaged not only the Hochdorf district authority but all the canton’s judicial authorities, which was incompatible with a lawyer’s professional ethics.
17. The applicant lodged a public-law appeal against the above decision. This was dismissed by the Federal Court on 21 April 1994.
It observed that lawyers enjoyed considerable freedom to criticise the judicial authorities, provided that this was done according to the correct procedures, and in the first place in the course of representing and defending their clients. When, however, a lawyer appealed to public opinion, he was under a duty, like any other person employed in the service of justice, to refrain from any conduct inconducive to the proper administration thereof. Article 10 § 2 of the Convention also enunciated the principle that interference could be justified if its purpose was to maintain the authority and impartiality of the judiciary. Admittedly, there might be circumstances in which the public interest required alleged violations of constitutional or human rights to be made public. In order to determine whether that was the case, it was necessary to ascertain how obvious the alleged violations were, whether pending proceedings were likely to be influenced, whether the available remedies had been exercised and in what form the criticism had been made.
In the instant case Mr Schöpfer had been punished not so much for denouncing human rights violations as for the way in which he had done so. When considering the case the Supervisory Board had indeed taken into account the fact that one of the complaints raised by the applicant, concerning the fact that Mr S. had been brought before a district clerk rather than the prefect, had subsequently been upheld by the Court of Appeal. However, Mr Schöpfer’s other criticisms – which were likely to influence pending proceedings – had been found by the Supervisory Board to be unjustified. Furthermore, the Board had ruled that the applicant had not employed the right tone in his criticism and that he had made untrue allegations. It had given sufficient grounds for its decision and the applicant had not adduced any convincing counter-arguments.
18. Article 10 of the Statute of the Bar (Anwaltsgesetz) of the Canton of Lucerne establishes a Lawyers’ Supervisory Board (Aufsichtsbehörde über die Anwälte) whose members – two judges of the Court of Appeal, one administrative court judge and two lawyers – are appointed by the Court of Appeal for four years. Under Article 12 § 1 of the Statute the Board has jurisdiction to investigate lawyers’ breaches of professional ethics (Berufs- und Standespflichten) and may impose disciplinary penalties. Under Article 13 these range from a reprimand (Verweis) to temporary or permanent disbarment, with fines of up to CHF 5,000 as intermediate penalties.
NON_VIOLATED_ARTICLES: 10