ITEMID: 001-60821
LANGUAGEISOCODE: ENG
RESPONDENT: ITA
BRANCH: GRANDCHAMBER
DATE: 2002
DOCNAME: CASE OF N.C. v. ITALY
IMPORTANCE: 1
CONCLUSION: Preliminary objection dismissed (estoppel);No violation of Art. 5-5
JUDGES: Gaukur Jörundsson;Luzius Wildhaber;Paul Mahoney
TEXT: 11. The applicant was born in 1951 and lives in Velenzano (Bari). He was formerly the technical director, technical and economic adviser and special representative and agent of a company, X.
12. On an unspecified date a preliminary investigation was opened in respect of the applicant on the suspicion of abuse of official authority and corruption, offences which he had allegedly committed in the performance of his duties in 1991.
13. On 16 October 1993 the public prosecutor attached to the Brindisi District Court applied for the applicant to be placed either in pre-trial detention or under house arrest, or prevented from discharging his duties as a director of the X company, on the ground that five witness statements and an opinion prepared by an expert, Z, in the course of the preliminary investigation provided substantial evidence of his guilt. The content of the statements and of the expert opinion had been corroborated by other documents. The applicant appeared to have commissioned Y, the head of Brindisi District Council's town-planning department, as chief engineer for the construction of a road (“Strada dei Pittachi”) and as assistant project manager for the construction of a new detention centre in Lecce. The appointments were alleged to have been a “payment” from the X company to Y for having issued false declarations in the approval procedure relating to the plans submitted by the X company for the road project.
The public prosecutor further explained that, as the applicant had kept his post in the X company, there was a danger that he might commit other similar offences.
14. On 2 November 1993 the Brindisi investigating judge (giudice per le indagini preliminari) issued a warrant for the applicant's arrest on the ground that there was substantial evidence of his guilt (gravi indizi di colpevolezza), as referred to in the public prosecutor's application of 16 October.
15. Regarding the grounds for imposing this precautionary measure, the judge noted that the applicant had kept his post as technical director of the X company, as the public prosecutor had mentioned in his application. The judge considered, inter alia, that in order to decide which precautionary measure was most suitable in the applicant's case, he had to take into account the nature of the conduct under examination. The worst aspects of the applicant's conduct were that he had failed to observe the rules of administrative procedure, had wasted public funds and had infringed the provisions governing public tendering. The result had been a project that showed no respect for the environment – a very serious failing, as the judge explained:
“... the chaotic and unliveable character of southern Italian cities is not caused solely by the spread of petty crime but stems primarily from the pattern of urban growth (the absence of any effective regulation, resulting in a lack of adequate public areas for parking, gardens and relief roads; this unease is tangibly felt in all parts of Brindisi). Abuses relating to the management and spending of public funds, such as those committed in the Strada dei Pittachi project, must be regarded as being just as serious as possession of a firearm with its serial number removed or the conduct of a drug addict who robs a tobacconist of several thousand lire at gunpoint or with the help of accomplices, as often happens in Brindisi. In view of the legislature's intention to counter the risk to society in such cases by the most stringent precautionary measure – detention – that measure is all the more justified in the far more serious case under investigation and must be considered appropriate and necessary, even if it is not expressly required by Article 275 § 3 of the Code of Criminal Procedure ['the CCP'] in circumstances of this kind. Otherwise, the difference in treatment would be unjustifiable, and therefore unjust.”
The judge concluded that in cases such as the present one, “where each act, firstly, is intended to serve reprehensible private interests and, secondly, is committed by persons who enjoy or should enjoy an excellent reputation because of the powers and/or responsibilities which they exercise, recourse must be had to the measure of detention (and not that of house arrest, which is very convenient – especially for someone like the suspect who is used to living indoors – and not sufficiently deterrent).”
16. The applicant was arrested on 3 November 1993.
17. On 3 November 1993 the applicant applied to the Brindisi District Court to be released or, failing that, placed under house arrest, arguing that there was not “substantial evidence of [his] guilt” within the meaning of Article 273 of the CCP and that there were no grounds whatsoever for imposing precautionary measures.
18
19. Lastly, the applicant drew the court's attention, in particular, to the settled Italian case-law to the effect that, where a precautionary measure was being considered a long time after the offence had been committed, the suspect's conduct in the intervening period had to be taken into account. In his case, he had not been accused of or charged with any similar or different offence in the two years following the acts of which he was suspected.
20. Following a hearing on 11 November 1993, the court held in a decision of 13 November 1993 that there was undoubtedly “substantial evidence” of the applicant's guilt. It further held: “There is undeniably a danger that the suspect might commit further offences within the meaning of Article 274 (c) of the CCP, seeing how he succeeded in unlawfully attaining the economic ends in question.” It therefore refused the applicant's application for release. However, since he had no criminal record, the court allowed his alternative request and placed him under house arrest.
21. On 23 November 1993 the applicant appealed on points of law against the refusal to release him, arguing that his detention pending trial was in breach of Articles 273 and 274 (c) of the CCP. He submitted, in particular, that the Brindisi District Court had not given any reasons for its decision to apply precautionary measures for the purposes of Article 274 (c) of the CCP.
22. On 30 November 1993 the applicant applied to the Brindisi investigating judge to have the order placing him under house arrest revoked, as he had resigned from his post as technical director of the X company.
23. The judge refused that application on 3 December 1993. His decision was based, inter alia, on the fact that that measure had been taken only a short time ago and had, moreover, replaced a more stringent one, and on the serious nature of the accusation. He explained that the applicant might still be able to use his experience and professional skills either for his own ends or on behalf of another company.
24. On 6 December 1993 the applicant appealed to the Brindisi District Court against that decision. He submitted that the previous decisions had been taken with a view to preventing the commission of criminal offences and, in particular, because he had kept his post in the X company. Now that he had resigned, such preventive action was no longer necessary.
25. In a decision of 20 December 1993 the court noted that all the previous decisions concerning the applicant's deprivation of liberty had been based on Article 274 (c) of the CCP. It held that, in view of the applicant's resignation, the time that had elapsed since the measure had been imposed and the suspect's character, there were no longer any grounds for keeping him under house arrest. Accordingly, it ordered his immediate release.
26. On 28 February 1994 the applicant withdrew his appeal on points of law of 23 November 1993, a fact that was acknowledged on 8 March 1994.
27. In a judgment of 15 April 1999 the Brindisi District Court acquitted the applicant on the ground that the alleged facts had never occurred (perché il fatto non sussiste). That judgment became final on 14 October 1999.
28. The court observed, in particular, that the public prosecutor's submissions had been based mainly on an expert opinion prepared by Z in the course of the preliminary investigation. Z had been examined at the trial, but the conclusions he had reached had been successfully challenged by the defence. In particular, an expert appointed by the defence, W, had put together a different version of events, which had been submitted to the court at hearings on 6 November 1996 and 5 February 1997. His version was corroborated by certain documents and witness statements. In particular, it appeared that the expert witness Z had failed to distinguish properly between two separate administrative procedures and had not taken into account a number of factors that might have explained why the X company had been chosen to carry out certain portions of the Strada dei Pittachi project. In the light of that, and even supposing that the internal administrative regulations had been contravened, it had not been established that the X company had made unjustified profits. Furthermore, at a hearing on 11 November 1997, a witness had clarified the relations between the X company and the applicant. In particular, the latter had suspended his contract of employment with the company when he had become a university lecturer; his role had subsequently been limited to that of an outside consultant. In that capacity, the applicant could not have been in charge of the operational management of a particular project, since that had been the responsibility of the manager of a subsidiary company, who had also been responsible for payments. Lastly, statements made at the hearings by other witnesses had shown that Y's appointment as chief engineer for the Strada dei Pittachi road-construction project and as assistant project manager for the construction of the new detention centre in Lecce had been based on technical considerations and grounds of suitability, and had been consistent with previous practice.
29. The conditions for the application of a precautionary measure (misura cautelare) in criminal proceedings are set out in Articles 272 et seq. of the CCP.
30. By Article 273 § 1 of the CCP, “no one shall be subjected to a precautionary measure unless there is substantial evidence of his guilt [gravi indizi di colpevolezza]”. The evidence must concern an offence punishable by life imprisonment or by a prison sentence of more than three years.
31. The Court of Cassation has held that “substantial evidence of guilt” means any evidence against the suspect which, without being capable of proving beyond reasonable doubt that he was responsible, nonetheless suggests that it will possible at a later stage to establish his responsibility, thereby creating a heightened probability of his guilt at the investigation stage (see the plenary Court of Cassation's judgment of 21 April 1995 (Costantino), published in Giust. pen. 1996, III, 321, and the Court of Cassation's judgment of 10 March 1999 (Capriati), published in CED Cass., no. 212998; see also the Court of Cassation's judgment of 23 February 1998 (Derzsiova), published in Riv. pen. 1998, 816, which refers to a “strong probability that the suspect will be held responsible for the offence”, and the Court of Cassation's judgment of 7 February 1992 (Caparrotta), published in Arch. n. proc. pen. 1992, 597, according to which the evidence must create a strong indication of guilt (consistente fumus di colpevolezza), which is not rebutted by the existence of a possible alternative explanation that will have to be verified in the course of the trial).
32. Article 274 of the CCP lists the circumstances warranting the adoption of a precautionary measure. The existence of at least one of these circumstances, in addition to the “substantial evidence of guilt” referred to in Article 273 § 1 of the CCP, is a prerequisite for the adoption of a measure depriving a person of his liberty.
33. Article 274 provides, in particular, that precautionary measures may be ordered to prevent interference with the course of justice (Article 274 (a)), if there is a danger of absconding (Article 274 (b)) and to prevent the commission of criminal offences (Article 274 (c)).
34. Article 274 (c), which was applied in the applicant's case, provides that precautionary measures are to be ordered
“where, given the specific nature and circumstances of the offence and having regard to the character of the suspect or the accused as shown by his conduct, acts or criminal record, there is a genuine danger that he will commit a serious offence involving the use of weapons or other violent means against the person or an offence against the constitutional order or an offence relating to organised crime or a further offence of the same kind as that of which he is suspected or accused”.
35. The Court of Cassation has held that the requirements concerning the protection of the community must be considered in relation to a genuine danger that offences will be committed; since this requires a forecast amounting to a presumption, the judge must give a concrete and precise explanation of the criteria adopted, and, if several persons are suspected, may not merely base his decision on considerations of a general nature (see the Court of Cassation's judgment of 8 November 1993 (Stanislao), published in CED Cass., no. 197719). The judge may not take into account the seriousness of the offence in abstracto, but must address the specific circumstances in issue in the case before him that highlight the danger posed by the suspect; in giving reasons for his decision, he must refer to specific facts and not to general and/or automatic criteria (see the Court of Cassation's judgment of 29 March 2000 (Penna), published in CED Cass., no. 216304).
36. On the other hand, the fact that a person has no criminal record does not necessarily mean that he or she does not pose a danger to society, seeing that that condition may be satisfied, as Article 274 (c) of the CCP expressly provides, on the basis of the suspect's conduct or acts (see the Court of Cassation's judgment of 2 October 1998 (Mocci), published in Cass. pen. 1999, 2584).
37. Lastly, the Court of Cassation has held that the danger of reoffending is not ruled out by the fact that the suspect has resigned or has in any other way ceased to perform the duties in the context of which he is alleged to have abused his authority; the law merely requires there to be a likelihood of committing an offence of the same kind as that in respect of which an investigation has been opened, and does not require the commission of the same offence (see the Court of Cassation's judgments of 10 September 1992 (Gazner), published in Cass. pen. 1993, no. 1042, and of 17 March 1994 (Abbate), published in Cass. pen. 1995, 340).
38. Article 292 of the CCP provides that decisions ordering a precautionary measure must contain reasons and must, in particular, indicate the grounds on which the measure has been imposed and the evidence of the suspect's guilt, including the facts on which that evidence is based and the reasons why it is relevant. Such decisions must also take into account the time that has elapsed since the offence was committed.
39. The Court of Cassation has held that statements of reasons cannot be worded using standard formulae; instead, they must set out the particular grounds taken into consideration by the judge in the case before him (see, in particular, the Court of Cassation's judgment of 5 July 1990 (Ranucci), published in Arch. n. proc. pen. 1991, 124, quashing a decision in which the requirement of danger had been based solely on the seriousness of the alleged offence and on the suspect's character as shown by his criminal record).
40. Article 314 of the CCP provides for the right to compensation for so-called “unjust” pre-trial detention in two distinct cases: where an accused is acquitted following proceedings on the merits of a criminal charge, or where it is established that a suspect was placed or kept in pre-trial detention in breach of Articles 273 and 280 of the CCP. The latter provision states that a precautionary measure may be taken only if the maximum penalty for the alleged offence is more than three years' imprisonment. However, no compensation may be awarded if the detention was ordered or prolonged in breach of Article 274 of the CCP (for example, if there was no danger of reoffending; see, amongst other authorities, the plenary Court of Cassation's judgment of 12 October 1993 (Durante)). Article 314 provides:
“Anyone who has been acquitted in a judgment that has become final – on the grounds that the alleged facts never occurred, he did not commit the offence, no criminal offence has been committed or the facts alleged do not amount to an offence in law – shall be entitled to compensation for any period he has spent in detention pending trial, provided that the detention was not wholly or partly the result of a deliberate act or gross negligence on his part.
The same right shall be secured to anyone who, having been detained pending trial, has been acquitted on any grounds whatsoever or convicted, where the detention is found, in a final decision, to have been ordered or prolonged in breach of the applicability criteria set out in Articles 273 and 280.”
41. Article 315 of the CCP provides that claims for compensation must be made within two years after the acquittal or conviction becomes final, failing which they will be inadmissible. Following the entry into force of Law no. 479 of 1999, the maximum award is 516,456.90 euros.
NON_VIOLATED_ARTICLES: 5
NON_VIOLATED_PARAGRAPHS: 5-5


ITEMID: 001-99854
LANGUAGEISOCODE: ENG
RESPONDENT: UKR
BRANCH: CHAMBER
DATE: 2010
DOCNAME: CASE OF GAZETA UKRAINA-TSENTR v. UKRAINE
IMPORTANCE: 3
CONCLUSION: Violation of Art. 6-1;Violation of Art. 10;Pecuniary damage - award;Non-pecuniary damage - award
JUDGES: Ganna Yudkivska;Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Peer Lorenzen;Renate Jaeger;Zdravka Kalaydjieva
TEXT: 4. The applicant company is the editorial body of a limited liability company called the Ukraina-Tsentr Newspaper and is registered in the city of Kirovograd, Ukraine.
5. In June 2002 the mayoral elections were conducted in the city of Kirovograd. On 12 June 2002, during the election campaign, two press conferences relating to those elections were held at the Ukrainian Independent News Agency (“the UNIAN”). During one of those press conferences, a local Kirovograd journalist, Mr M. accused one of the candidates, Mr Y., of ordering him to be murdered for 5,000 US dollars (USD). The wording of the accusation made by Mr M., as later established by the domestic courts, contained the following paragraph:
“He (Mr Y.) went to his friend, the one locally known politician, whom I will not name yet, but if necessary we will provide [his name], we have facts. Upon his request, the other took out five thousand dollars of his money and handed it to his head of security service and said the following, that it is necessary to reserve for me a place in the morgue.
So, at present, they “ordered” me for five thousand dollars. Who ordered? I say: [Mr] Y. [full name], I declare it officially.”
6. This information among other news was disseminated by the UNIAN via e-mail and posted on its website. According to the applicant company, it received this information by electronic mail in the following form:
“Furthermore, [Mr] M. accused the Kirovograd mayoral candidate and President of the Kirovskiy District Court, [Mr] V. Y., “of ordering him to be murdered”. The journalist reported that for safety reasons he had taken his family away from the region. According to him, all four journalists participating in the press conference addressed the General Prosecutor's Office, the Security Service of Ukraine and the Ministry of the Interior concerning the threats to them and claimed that they had proof of pressure being applied to them”.
7. According to the applicant company, on the same day, the STB TV channel in its Vikna-Novyny news programme disseminated similar information, indicating that Mr M. had also mentioned the sum of USD 5,000 for “ordering him to be murdered”.
8. On 14 June 2002 the applicant company published an article which was titled “The metropolitan tour” in which the above-mentioned press conferences of 12 June 2002 were described. Among other things, the article contained the following paragraph:
“[Mr] M. accused [Mr] Y. of 'ordering him to be murdered' and even stated the amount paid for the 'order' – 5,000 US dollars. The journalist stated that for safety reasons he had taken his family away from the region. According to him, all four journalists participating in the press conference addressed the General Prosecutor's Office, the Security Service of Ukraine and the Ministry of the Interior concerning the threats to them. He also claimed that they had proof of the pressure being applied to them.”
9. In August 2002 Mr Y. lodged a civil claim in the Kirovograd Leninsky District Court (the Leninsky Court) against the applicant company and Mr M. complaining that the phrase “[Mr] M. accused [Mr] Y. 'of ordering him to be murdered' and even stated the amount paid for the 'order' – 5,000 US dollars” published by the applicant company was untrue and abased his human dignity. He maintained that that publication had affected his professional and private life and damaged his reputation as an individual, lawyer and politician. Taking the view that the publishing of a correction would not be sufficient, he asked the courts to pay him non-pecuniary damages. Later, Mr Y. supplemented his claim by asking for the statement made by Mr M. during the press conference (see paragraph 5 above) to be found untrue and defamatory.
10. According to the applicant company, its co-defendant, Mr M., asked the court to adjourn the proceedings and on 30 November 2002 asked the Supreme Court to transfer the case to another court. The applicant company supported those requests. In his request to the Supreme Court, Mr M. noted in particular that the plaintiff was the President of the Kirovograd Kirovskiy Local Court and therefore, to ensure the objective and unbiased examination of the case, he asked for the case to be transferred to one of the local courts in Kyiv, the city in which the press conference had taken place. By letter dated 12 December 2002, the Deputy President of the Supreme Court allowed the request in part and ordered the case to be transferred to the Kamyansky Local Court in the Cherkassy region. However, by that time, the Leninsky Court had already examined the case (see the next paragraph), having rejected Mr M.'s request for the case to be adjourned.
11. On 10 December 2002 the Leninsky Court, in a single judge formation (Judge B.) found that the accusations made by Mr M. and the applicant company that Mr Y. had ordered Mr M. to be murdered were contrary to the principle of the presumption of innocence guaranteed by the Constitution. The defendants did not prove before the court that the disseminated information was true. The court found the following phrase from the applicant company's article “[Mr] M. accused [Mr] V. Y. 'of ordering him to be murdered' and noted the amount paid for the 'order' – 5,000 US dollars” untrue and defamatory. The court also found that Mr M. had accused Mr Y. of 'ordering' him to be murdered for USD 5,000 during the press conference and that such accusation was also untrue and defamatory. The court noted that, in view of the fact that the two bodies had not drawn up a formal contract between them, the applicant company could not prove that it had received the impugned information officially from the UNIAN. Furthermore, the information published by the applicant company did not correspond to the information disseminated by the UNIAN. For those reasons, the court concluded that the applicant company could not be protected against liability. The applicant company and Mr M. were ordered to pay Ukrainian hryvnias 100,000 (UAH) and UAH 20,000, respectively, in compensation. The court, however, found no liability against the UNIAN, which had been identified as a co-defendant by the court, because the plaintiff had lodged no claims against it and the UNIAN had published a correction.
12. The applicant company appealed against the decision of the first-instance court. It complained, in particular, that Judge B. could not be impartial because Mr Y. was the chairman of the regional council of judges and the deputy chairman of the regional branch of the Union of Lawyers and, as a judge and a lawyer, Judge B. was dependent upon the plaintiff. The applicant company further noted that the court had disregarded the fact that the impugned information had been circulated by electronic mail, had also been freely accessible on the UNIAN website and that such information belonged in the public domain. It also submitted that the plaintiff had not asked it to correct the material and its proposal to publish a correction before the judicial proceedings and during the judicial proceedings had been refused by the plaintiff.
13. On 12 March 2003 the Kirovograd Regional Court of Appeal upheld the decision of the first-instance court but decreased the compensation award. The applicant company was ordered to pay UAH 50,000 in compensation.
14. The applicant company appealed in cassation.
15. On 2 October 2003 the Supreme Court upheld the decisions of the lower courts.
16. On 30 October 2003 the applicant company paid the compensation awarded against it and UAH 2,500 in enforcement fees.
17. Relevant provisions of the Act read as follows:
Section 97
Disciplinary proceedings against judges
“1. Disciplinary proceedings shall be regarded as the procedure of consideration by the body, specified by the law, of a statement regarding the breaking of judicial status, official duties or the oath by a judge.
2. The right to initiate disciplinary proceedings against a judge shall belong to the following persons: ... the chairman of a relevant council of judges...
3. It is forbidden to abuse the right specified in paragraph 2 of this section. In particular, it is forbidden to initiate consideration of an issue concerning the legal liability of a judge without sound reasons or to use the said right to exert pressure upon a judge in connection with the administration of justice by such a judge...”
“1. Within the period between the conferences of judges the functions of a judicial self-government shall be performed by a relevant council of judges.
2. A council of judges shall elect from among its members the chairman, deputy chairman and secretary of a council of judges. Chairmen and deputy chairmen of the courts of appeal and higher courts, head of the military chamber of the Court of Appeal of Ukraine and head of the military chamber of the Court of Cassation of Ukraine shall not be elected to the post of chairman of a relevant council of judges.
3. Within the period between the conferences of judges a council of judges shall provide for execution of the decisions taken by a conference and control over their observance, also decide on convocation of the next conference. The powers and operation of a council of judges shall be specified by this Act and the regulations of a council of judges approved by a conference of judges.
4. A council of judges shall:
1) exercise control over the operation of relevant courts and relevant departments of the State judicial administration, hear progress reports of chairmen of these courts and officials of the State judicial administration;
2) consider the issues of legal and social protection of judges, provision of consumer and household services for judges and their families, and take the decisions to this effect;
3) consider the issues concerning the appointment of judges to administrative posts in courts in the manner prescribed by this law;
4) hear the reports of members of relevant judicial boards of experts concerning their work on these boards;
5) submit the proposals on operation of relevant courts for consideration of the State bodies and local self-government authorities;
6) hear, at least once a year, the information of the State judicial administration of Ukraine on support of operation of the courts of general jurisdiction.
7) take other decisions falling within the limits of its power.
5. The decisions taken by a council of judges shall be binding for the judges holding the administrative posts in relevant courts. A decision of a council of judges may be cancelled only by a conference of judges and suspended by the decision of the Council of Judges of Ukraine.”
18. Relevant extracts from the Constitution read as follows:
“... Everyone is guaranteed judicial protection of the right to have corrected misinformation communicated about himself or herself or members of his or her family, and of the right to demand that any type of material be corrected, and also the right to compensation for pecuniary or non-pecuniary damage inflicted by the collection, storage, use and dissemination of such misinformation.”
“Everyone is guaranteed the right to freedom of thought and speech, and to the free expression of his or her views and beliefs.
Everyone has the right to freely collect, store, use and disseminate information by oral, written or other means of his or her choice.
The exercise of these rights may be restricted by law in the interests of national security, territorial indivisibility or public order, with the purpose of preventing disturbances or crime, protecting the health of the population, the reputation or rights of other persons, preventing the publication of information received confidentially, or maintaining the authority and impartiality of justice.”
“A person is presumed innocent and shall not be subjected to criminal conviction unless proved guilty through a legal process which establishes a guilty verdict.
No one is obliged to prove that he or she is innocent of committing a crime.
An accusation shall not be based on illegally obtained evidence or assumptions. All doubts in regard to the proof of guilt are interpreted in the accussed's favour.
In the event that a court verdict is revoked, the State shall, as determined, provide pecuniary or non-pecuniary damage.”
19. Relevant extracts from the Civil Code read as follows:
“A citizen or an organisation shall be entitled to demand in a court of law that material be corrected if it is not true or is set out untruthfully, degrades their honour and dignity or reputation, or causes damage to their interests, unless the person who disseminated the information proves that it is truthful.
... information disseminated about a citizen or an organisation that does not conform to the truth and causes damage to their interests, honour, dignity or reputation shall be subject to rectification, and pecuniary and non-pecuniary damage can be recovered. A limitation period of one year shall apply to claims concerning rectification of such data and compensation.”
20. Relevant extracts from the Printed Media (Press) Act provide:
“... A journalist is obliged to:
... 2) provide objective and truthful information for publication; ...”
“Citizens, legal entities and State bodies and their legal representatives have the right to demand correction of material published about them or data that does not correspond to the truth or defames their honour and dignity.
If the editorial board does not have any evidence that the information published by it corresponds to the truth, it has to correct this material at the request of the plaintiff in the next issue of the printed media or to publish a correction on its own initiative. ...”
“The editorial board and journalists are not liable for the publication of information that is untrue, defames the honour and dignity of citizens and organisations, infringes their rights and lawful interests or constitutes abuse of the freedom of activity of the media and the rights of journalists if:
1) this information was received from the news agencies or from the media owner (co-owners);
2) the information contains responses to a formal request for access to official documents or to a request for written or oral information, provided in accordance with the Data Act;
3) the information is a verbatim reproduction of any official address of the officials of State bodies, organisations and the citizens' unions;
4) the information is a verbatim reproduction of materials published by other printed media which refer to that information;
5) the information contains secrets that are specifically protected by law, but the journalist received this information lawfully.”
21. The relevant extract of the Act provides as follows:
Section 30
Relationships between news agencies and distributors/owners (users) of a means of communication
“The basis of a relationship between a news agency and distributor/owner (user) of a means of communication shall be in the form of a contract.
A distributor/owner (user) of a means of communication enters into a contract with the news agency if the latter has a State registration certificate.”
22. The relevant extract from Resolution No. 7 reads as follows:
“... 17. In accordance with Article 7 of the Civil Code, the defendant [in a defamation case] has to prove that the information disseminated by him corresponds to the truth. The plaintiff only has the obligation to prove that the defendant has disseminated defamatory information about him. The plaintiff also has a right to provide evidence of the untruthfulness of such information.”
23. The applicant company submitted extracts from reports published in Ukraine by the NGO, the International Foundation “Centre for Judicial Studies”. The reports titled “Monitoring of Judicial Independence in Ukraine (2007)” and “Monitoring of Judicial Independence in Ukraine. (2008)” provided, inter alia, that among the forms of pressure [being put] on judges were threats to 'complicate a career' and to 'initiate dismissal or disciplinary proceedings'. According to the same reports, councils of judges had been rated the third most influential body on judges because they could affect the professional career of a judge.
VIOLATED_ARTICLES: 10
6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-57601
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: CHAMBER
DATE: 1982
DOCNAME: CASE OF X. v. THE UNITED KINGDOM (ARTICLE 50)
IMPORTANCE: 2
CONCLUSION: Non-pecuniary damage - finding of violation sufficient;Costs and expenses award - domestic proceedings;Notes agreement on Costs and expenses - Convention proceedings
TEXT: 1. The case of X v. the United Kingdom was referred to the Court by the European Commission of Human Rights ("the Commission") in October 1980. The case originated in an application against the United Kingdom of Great Britain and Northern Ireland lodged with the Commission on 14 July 1974 by a United Kingdom citizen, referred to as X in this judgment in view of the wish expressed by his next of kin following his death in 1979.
2. The applicant had alleged violation of paragraphs 1, 2 and 4 of Article 5 (art. 5-1, art. 5-2, art. 5-4) of the Convention in relation to his compulsory confinement in a psychiatric hospital. By judgment of 5 November 1981, the Court held that there had been a breach of paragraph 4 (art. 5-4), but not of paragraph 1 (art. 5-1), of Article 5 and that it was not necessary also to examine the case under paragraph 2 (art. 5-2) (Series A no. 46, points 1, 2 and 3 of the operative provisions and paragraphs 36-66 of the reasons, pp. 17-28).
The only outstanding matter to be settled in the present case is the question of the application of Article 50 (art. 50). Accordingly, as regards the facts, the Court will confine itself here to giving the pertinent details; for further particulars, reference should be made to paragraphs 8 to 30 of the above-mentioned judgment (ibid., pp. 6-14).
3. At the public hearings held on 22 June 1981, counsel on behalf of the applicant had stated that, should the Court find a violation, they would be submitting a claim for just satisfaction under Article 50 (art. 50) to obtain both compensation for damage suffered and reform of the law. The Government of the United Kingdom ("the Government"), for their part, had not taken a stand on the matter.
In its judgment of 5 November 1981, the Court reserved the whole of this question. The Commission was invited to submit to the Court, within the coming two months, written observations thereon and, in particular, to notify the Court of any friendly settlement at which the Government and the applicant’s next of kin might have arrived (see point 4 of the operative provisions and paragraph 67 of the reasons, ibid., pp. 29 and 28).
4. The President of the Chamber extended the above-mentioned time-limit twice, on the last occasion until 5 May 1982.
On this date, the Secretary to the Commission, acting on the Delegate’s instructions, transmitted to the registry copies of correspondence giving details of the negotiations between the Government and the applicant’s representatives, together with the Delegate’s observations thereon. These documents revealed that although opinions on certain items were not widely diverse, no overall settlement had been reached.
5. By Order of 10 May 1982, the President of the Chamber directed that the Agent of the Government should have until 21 June to file any comments on the observations of the Commission’s Delegate. This time-limit was subsequently extended by five weeks. On 30 July, the Agent of the Government filed a memorial.
6. On 1 September, the Secretary to the Commission, in response to a request made on 30 August by the Registrar, supplied the latter with certain information, together with several supporting documents.
7. During the negotiations, claims for just satisfaction were put forward under three heads:
(a) for reform of the domestic law to bring it into line with the requirements of the Convention;
(b) for financial compensation for damage caused by the breach of Article 5 § 4 (art. 5-4);
(c) for reimbursement of costs necessarily incurred.
For ease of reference, further particulars of these claims are set out below in the section "As to the law".
8. Subsequent to and, according to the Government, as a direct result of the judgment of 5 November 1981, various amendments were inserted into the Mental Health (Amendment) Bill, which is still before Parliament. In brief, these amendments provide that from the coming into force of the Act (scheduled for September 1983), Mental Health Review Tribunals will be empowered to consider the substantive grounds for the continued detention of a restricted patient, and will be required to order discharge where appropriate. The Government have in addition given an undertaking to Parliament to provide legal representation at public expense for patients coming before Mental Health Review Tribunals whose own financial resources are insufficient.
9. Mr. Thór Vilhjálmsson, Mrs. D. Bindschedler-Robert and Mr. L. Liesch, substitute judges, took the place of Mr. M. Zekia, Mr. D. Evrigenis and Mr. B. Walsh, who were prevented from taking part in the further consideration of the case (Rules 22-1 and 24-1 of the Rules of Court).
10. The Chamber decided on 21 September 1982 that there was no call to hold oral hearings.


ITEMID: 001-127123
LANGUAGEISOCODE: ENG
RESPONDENT: HUN
BRANCH: COMMITTEE
DATE: 2013
DOCNAME: CASE OF FARAGÓ AND OTHERS v. HUNGARY
IMPORTANCE: 4
CONCLUSION: Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Reasonable time)
JUDGES: András Sajó;Nebojša Vučinić;Peer Lorenzen
TEXT: 4. The applicants were born in 1995, 1969 and 1962, respectively.
5. On 6 July 1995 the second applicant gave birth to a boy, the first applicant. In 1996 the latter was diagnosed with cerebral atrophy.
6. On 1 October 1997 the applicants lodged a medical liability action against the hospital where the first applicant was born.
7. On 30 October 2009 the Pest Central District Court partly found for the applicants and ordered the respondent to pay them respectively 47,647,959 Hungarian forints (HUF) (approximately 163,000 euros (EUR)), HUF 8,000,000 (approximately EUR 27,000) and HUF 3,000,000 (approximately EUR 10,000) and accrued interests. The respondent appealed.
8. On 26 March 2010 the Budapest Regional Court, acting as a second-instance court, gave judgment, upholding the first-instance decision.
9. On 21 May 2010 a written copy of the decision was served on the applicants’ lawyer.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-83809
LANGUAGEISOCODE: ENG
RESPONDENT: DEU
BRANCH: CHAMBER
DATE: 2007
DOCNAME: CASE OF CHAIR AND J. B. v. GERMANY
IMPORTANCE: 3
CONCLUSION: Not necessary to rule on the preliminary objection (non-exhaustion);No violation of Art. 8
JUDGES: Christos Rozakis
TEXT: 6. The first applicant was born in 1962 and lived in Morocco until 1987.
7. In 1987 he left Morocco in order to complete his chemistry studies in France. In June 1989 he went to Germany in order to obtain a doctorate in chemistry. From July 1993 to December 1994 he worked as a university assistant at Marburg University. In 1995 he moved to Hanover, where two of his brothers were living and where he worked in one of his brother's enterprises. Subsequently, he worked in his own kiosk. In 1998 he started training with a view to becoming an expert in logistics.
8. In 1990 the competent authorities granted the first applicant a temporary residence permit, which was prolonged first until March 1994 and then until the end of April 1997.
9. On 13 March 1997 the first applicant married the second applicant. His residence permit was thus prolonged until 14 May 2000.
10. In May 1997 a daughter was born to the applicants.
11. On 13 January 1998 the Hanover District Court (Amtsgericht) convicted the first applicant of aggravated theft and sentenced him to fifteen daily fines of thirty German marks.
12. On 14 January 1999 the applicant was arrested and subsequently detained on remand.
13. On 21 April 1999 the Hanover Regional Court (Landgericht) convicted the first applicant of rape. According to the facts established by the Regional Court, on 11 December 1998 he had forced a university student at knifepoint to engage in sexual contact with him. It sentenced him to five years and three months' imprisonment. In its reasoning, the Regional Court considered in particular the fact that the first applicant had for the most part confessed his crime, that he had used the knife only once at the beginning of the act and that he had lived an orderly life in spite of his difficulties in finding employment. The Regional Court took further into account that the crime had to a large part been committed owing to the first applicant's considerable intoxication and his growing frustration emanating from the lack of sexual contact with his wife. However, having regard to the fact that the first applicant had performed two acts of sexual coercion, that the incident had lasted for an overall duration of forty minutes and that he had constantly used force against his victim by exerting pressure with his arm and his hand, respectively, these factors precluded further mitigation of sentence.
14. Following his conviction, the first applicant served his sentence in Hanover Prison.
15. On 14 July 2000 the psychological expert P. submitted an expert opinion to the prison authorities. He considered that the first applicant had acknowledged his crime and was willing to change, in particular with regard to his alcohol consumption and his sexual conduct. There was no indication of sexual deviance. The expert further noted that the first applicant's upbringing in a traditional Moroccan family had led to a very restricted concept of masculinity, which he had not been able to revise. His relationship with the second applicant had been very burdened by the fact that the second applicant had refused sexual contact with him following the birth of their daughter and that he had not been able to talk to her about this. The expert further noted that there had been other situations prior to the rape where the applicant had harassed women, although such situations had not led to the commission of a sexual offence. He concluded that the first applicant was open-minded and self-critical. He was able to comprehend the circumstances which had led to the commission of the crime and to search for ways of overcoming his problems. Provided the first applicant engaged in pertinent couple therapy and managed to give up his illusionary concept of masculinity, a positive legal prognosis could be attributed to him.
16. According to the records of the regular conferences on the planning of sentence execution (Vollzugsplankonferenz), the first applicant attempted to instigate couple therapy. In February 2001, however, it was noted that the applicant's wife had expressed that she was experiencing great difficulties with her own situation, which she preferred to solve on her own before dealing with her husband's problems. She was uncertain whether she wished to continue the relationship.
17. From June 1999 until February 2000 the applicant attended meetings of Alcoholics Anonymous.
18. In the record dated 2 November 2001 the prison authorities noted that, in August 2001, the second applicant had had a conversation with a prison social worker, who gained the impression that she was not interested in meeting her husband and that she could not cope with the situation. The second applicant had not made use of her visiting rights for one year. In September 2001 the second applicant informed the social service by telephone that she agreed to meet her husband in spite of her doubts.
19. The participants in the conference of 2 November 2001 noted that the first applicant had been undergoing psychotherapy. They had, however, not gained the impression that he had made sufficient progress, as he was continuing to exert pressure on his wife and was trying to control her. It was further noted that the applicant's conduct during his detention was impeccable.
20. In the record dated 28 November 2002 it was noted that the first applicant had been granted leave to visit his wife and daughter on seven occasions since May 2002. The staff accompanying the visits considered that the state of the applicants' marriage was still unclear. While there had been a certain rapprochement between the couple, the spouses still did not communicate much with each other, but rather via the child. The second applicant was not opposed to her husband's continuing to visit their daughter. It still appeared, however, that she wanted a separation. The participants in the conference further consulted three psychological experts, including P., who considered that the applicant had not resolved his problems as regards his partnership and social contact with females. All three considered, however, that the danger of recidivism was low.
21. On 28 July 2000 the Municipal Public Order Authority (Ordnungsamt) of Hanover ordered the first applicant's expulsion to Morocco. Deportation to Morocco was announced upon his release from prison. Although the applicant was in possession of a valid residence permit and married to a German national, they considered that his conviction for a serious crime made it necessary to expel him under sections 47 § 1 and 48 § 1 of the Aliens Act (Ausländergesetz, see Relevant domestic law below). The circumstances of the present case left no room for any discretion on the part of the German authorities. The circumstances leading to his last conviction proved that he possessed a considerable amount of criminal energy. As a recidivist (Wiederholungstäter), there was a risk that the first applicant would commit further criminal acts in the future. The first applicant's assumption that his victim had willingly engaged in sexual contact with him gave rise to doubts as to whether he had fully comprehended and absorbed the extent of his crime.
22. According to the authorities, the long period spent in Germany could not preclude his expulsion, as his criminal offences had shown that he had so far not adapted to the living conditions in Germany. Neither his marriage to a German national, nor the fact that they had a child, could lead to a different conclusion in view of the seriousness of his crime.
23. On 29 January 2001 the Hanover District Council (Bezirksregierung) rejected an objection lodged by the applicant.
24. On 13 February 2002 the Hanover Administrative Court (Verwaltungsgericht) confirmed the deportation order of 28 July 2000. Having regard to the reasons given for the first applicant's criminal conviction, it found that given the seriousness of his crime, his expulsion was necessary in the interest of general deterrence (Generalprävention). It also considered the expulsion justified in this particular case. The Administrative Court did not view the first applicant as a recidivist, as his prior conviction for theft could not lead to the conclusion that he would continue to commit sexual offences. However, although the psychological expert P. had given the first applicant a positive social prognosis, a positive legal prognosis could only be given on condition that the first applicant engaged in successful therapy for couples and took leave of his “illusory concept of masculinity”. At the relevant time in January 2001 when the District Council gave its decision on the applicant's objection, these requirements had not been met.
25. Despite the first applicant's high professional qualifications and the fact that he had otherwise lived an orderly life, the two criminal offences committed in Germany attested to the fact that he had not succeeded in fully integrating himself into German society. This finding was also based on P.'s statement that there had been other situations prior to the rape where the first applicant had harassed women, even if such situations had not led to the commission of a sexual offence. If the first applicant did not learn how to deal adequately with problems and conflicts through pertinent therapy, the Administrative Court could not rule out the possibility that he might again commit criminal acts.
26. The Administrative Court further pointed out that, according to the legal practice in Germany, the existence of family ties alone could not preclude the first applicant's expulsion. In any event, at the time of the expulsion decision, there were severe doubts as to the stability of the applicants' marriage. It was not certain to what extent the second applicant knew about the details of the crime committed by her husband. The relationship between the spouses was considered to be problematic. The second applicant had also not reacted to an invitation to state her views on her husband's expulsion. The first applicant had not substantiated why it was necessary for his wife and child that he remain in Germany, in particular as his wife financially supported the family and had, already prior to the first applicant's imprisonment, arranged for their daughter to be cared for by a third person while she was at work.
27. The daughter's interest in her father's remaining in Germany could also not be considered as more important than the public interest in his expulsion. The right to have contact with his daughter was only protected in so far as that right had been exercised in the past. Despite regular meetings between the applicant and his daughter, which were apparently being continued, there was no indication that the daughter depended on these contacts. Having regard to the long periods of time which had elapsed between the visits and the fact that the daughter had not lived with the applicant since his arrest more than three years earlier, it appeared that they had a relationship based merely on occasional encounters (Begegnungsgemeinschaft). Under these circumstances, the applicant had failed to substantiate that his ties with his daughter amounted to a strong parent-child relationship that would warrant his remaining in Germany.
28. On 28 May 2002 the Lower Saxony Administrative Court of Appeal (Oberverwaltungsgericht) upheld that decision and rejected the first applicant's request for leave to appeal.
29. On 12 December 2002 the Federal Constitutional Court refused to accept the applicant's complaint for adjudication.
30. On 13 January 2003 the first applicant lodged a request for an interim order with the aim of obtaining a temporary suspension of deportation (Duldung). On 6 February 2003 the Hanover Administrative Court dismissed this request, stating firstly that his expulsion was not imminent as the first applicant was still serving his prison sentence. In any event, the applicant's request was unfounded. Referring to its own judgment of 13 February 2002, which had been upheld by the Administrative Court of Appeal, the Administrative Court held that the deportation order was in accordance with the law and that there was no cause for a suspension of the deportation. On 26 February 2003 the first applicant lodged an appeal. Following consultation of the case file, the applicant's counsel withdrew this appeal on 10 March 2003.
31. On 27 February 2003 the Hanover Regional Court, sitting as a post-sentencing chamber (Strafvollstreckungskammer), ordered the first applicant's release on probation. Based on psychological expert reports and on the submissions of the prison authorities, the Regional Court concluded that if the first applicant continued to abstain from abuse of alcohol, the risk that he might commit further crimes was comparatively low. It assumed that the four years spent in prison may have contributed to a complete cure from his former addiction and considered that he had comprehended the extent of his crime. While admitting that his relationship with the second applicant had probably deteriorated during the time spent in prison, the Regional Court considered it noteworthy that the couple had so far not divorced, nor had either of the spouses petitioned for a divorce.
32. Following the first applicant's release from prison on 2 April 2003 the applicants lived together with their child. According to the applicants' submissions, they started to follow couple therapy in March 2004. On 15 March 2004 the Kingdom of Morocco, on the Municipal Public Order Authority's request, issued a passport substitute document in order to allow the first applicant's deportation. After that the first applicant left his family and went into hiding.
33. On 18 March 2004 the applicant filed a request with the Municipal Authority to set a time-limit on the exclusion from German territory, which was a legal consequence of his expulsion.
34. On 24 July 2004 the applicant was arrested and on 16 September 2004 he was deported to Morocco.
35. On 9 August 2005 the Municipal Public Order Authority of Hanover limited the applicant's exclusion from the German territory to twelve years from the time of deportation, that is until 16 September 2016. The applicant's request for an earlier time-limit was rejected. The applicant was further granted the option to apply for a fresh examination of his request in 2013.
36. In February 2006 the first applicant re-entered German territory. On 16 March 2006 he was arrested on suspicion of theft accompanied by violence committed under the influence of alcohol. According to police investigations, he had reached into a cash register in a bar in order to procure the means to acquire more alcohol. The applicant remained in detention pending deportation to Morocco.
37. By a letter of 13 February 2007 the applicants' counsel informed the Court that the second applicant wished to withdraw her complaint.
38. The rights of entry and residence for foreigners were, at the relevant time, governed by the Aliens Act (Ausländergesetz).
Under section 47 § 1, no. 1, of the Aliens Act, a foreigner was to be deported when he had been sentenced to a minimum of three years' imprisonment for having wilfully committed one or more criminal offences. If he was married to a German citizen, a foreigner could only be deported if serious reasons of public safety and order justified his expulsion (section 48 § 1). This was generally the case where section 47 § 1 was applicable.
39. Under section 8 § 2, a foreigner who had been deported was not permitted to re-enter German territory. A time-limit on the exclusion period was usually (in der Regel) granted upon an application by the deportee.
40. Section 53 § 4 stipulated that a foreigner could not be deported if such deportation would not be authorised under the European Convention on Human Rights.
41. Under section 55 § 2, a foreigner could be granted a temporary suspension of deportation (Duldung) for as long as there were legal or factual reasons making his deportation impossible.
42. The suspension of deportation did not affect the foreigner's duty to leave the country. The time-limit for such a suspension could not exceed one year, but it was renewable (section 56 §§ 1-2).
43. Since 1 January 2005 the entry and residence rights of foreigners have been governed by the Residence Act (Aufenthaltsgesetz).
NON_VIOLATED_ARTICLES: 8


ITEMID: 001-88316
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: ADMISSIBILITY
DATE: 2008
DOCNAME: HUGHES v. THE UNITED KINGDOM
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: David Thór Björgvinsson;Giovanni Bonello;Lech Garlicki;Ledi Bianku;Mihai Poalelungi;Nicolas Bratza
TEXT: The applicant, Mr Leslie Hughes, is a British national who was born in 1945 and lives in Lancashire. He was represented before the Court by Royds Rdw, solicitors in London. The United Kingdom Government (“the Government”) were represented by their Agent, Mr C. Whomersley of the Foreign and Commonwealth Office.
The facts of the case, as submitted by the parties, may be summarised as follows.
The applicant’s wife died on 2 May 1990. They had no children from the marriage. His claim for widows’ benefits was made on 10 September 2000 and was rejected on 14 September 2000 on the ground that he was not entitled to widows’ benefits because he was not a woman. The applicant asked for reconsideration and on 6 November 2000 he was informed that his claim could not be reconsidered. The applicant did not appeal further as he considered or was advised that such a remedy would be bound to fail since no such social security benefits were payable to widowers under United Kingdom law.
The domestic law relevant to this application is set out in Willis v. the United Kingdom, no. 36042/97, §§ 1426, ECHR 2002-IV and Runkee and White v. the United Kingdom, no. 42949/98, §§ 40-41, 25 July 2007.


ITEMID: 001-88746
LANGUAGEISOCODE: ENG
RESPONDENT: POL
BRANCH: CHAMBER
DATE: 2008
DOCNAME: CASE OF RAZNIAK v. POLAND
IMPORTANCE: 3
CONCLUSION: Partly inadmissible;No violation of Art. 5-3
JUDGES: Giovanni Bonello;Lech Garlicki;Ledi Bianku;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä
TEXT: 4. The applicant was born in 1952 and lives in Warsaw. He is currently detained in Warsaw Remand Centre.
5. The applicant was arrested on 25 August 2000 and subsequently remanded in custody by the Warsaw District Court on suspicion of founding and leading a criminal armed gang within which he had ordered various crimes to be carried out, such as murder, robbery and drug trafficking. He was also accused of illegal possession of weapons and their use in assault and battery. In view of the fact that the applicant had been seriously injured by an explosion in his car on 30 May 2000, the court had regard to a medical opinion given by experts from the Faculty and Institute of Forensic Medicine of the Warsaw Medical Academy. The experts found that there had been no indication that the applicant’s detention would pose a danger to his health or life. The experts concluded that the applicant should receive appropriate medication and have unrestricted access to medical advice or be hospitalised on the ward of the detention centre. Accordingly, the court stressed in its decision that the applicant should receive adequate medical assistance during his detention.
6. The applicant unsuccessfully appealed against that decision. On 13 November 2000 he requested that the detention order be quashed, arguing, firstly, that there had been no reasonable suspicion that he had committed the offences with which he had been charged and, secondly, that he had been arrested at a hospital while being treated for injuries sustained as a result of a bomb explosion in his car. Accordingly, his detention created a serious risk for his health and life. He submitted medical opinions on his state of health, which confirmed that he had required surgery. According to two opinions, the applicant’s detention in a detention centre could constitute a serious danger to his health and life. A third opinion stated that there were no sufficient and objective grounds for believing that detention could seriously endanger the applicant’s health or life.
7. On 20 November 2000 the applicant’s detention pending investigation was extended by the Warsaw District Court. The court was of the view that the suspicion against the applicant was reasonable and confirmed by witness testimonies and by evidence obtained during searches. It had also been established in the course of the investigation that the members of the gang were close and, hence, in view of the fact that most of them were sought by means of wanted notices, the applicant’s detention was the only measure capable of ensuring the proper conduct of the investigation and preventing him from colluding with co-accused. The court took into account the serious nature of the offences with which the applicant had been charged and the severity of the penalty to which he was liable. The court also referred to a medical opinion of 25 August 2000 stating that there were no grounds for finding that the detention created any serious risk for the applicant’s health or life. The decision was upheld on 28 December 2000 by the Warsaw Regional Court.
8. The applicant’s pre-trial detention was subsequently extended by the same court’s decisions of 27 April, 24 August, 31 December 2001, 27 March and 9 August 2002. They were based in particular on the need to conduct further complex investigative measures, the need to obtain extensive evidence and the fear of the applicant colluding with other gang members or absconding. The risk was very serious in view of the applicant’s position in the criminal world and the fact that other members of the gang were still sought by the police.
9. The bill of indictment against the applicant and thirteen co-accused was transferred to the Warsaw Regional Court on 20 March 2002. The prosecutor requested 113 witnesses and three experts to give evidence and extensive documentary evidence was also submitted.
10. Between 19 September 2002 and 29 May 2003 the trial court held 57 hearings. The hearings were held on average 6 to 7 times per month, at times even 13 times per month. Prior to the first hearing the court held three preparatory meetings in order to examine the question of the extension of the applicant’s detention and his health. On 7 May 2002 the director of the detention centre submitted a medical opinion prepared by a doctor from the remand centre and subsequently another by an orthopaedist. The specialists recommended that the treatment be continued and confirmed that the applicant was receiving adequate medical assistance. The court ordered medical examinations by a surgeon, including a vascular surgeon, and by a pulmonologist, with a view to verifying whether the applicant could be treated in the detention centre’s ward.
11. On 29 May 2003 the Warsaw Regional Court found the applicant guilty of founding and leading an armed criminal gang for 10 years and sentenced him to 7 years’ imprisonment. Both the applicant and the prosecutor appealed.
12. On 27 August 2003 the applicant’s counsel lodged an application for the applicant to be released to allow him to receive specialist treatment.
13. On 1 September 2003 the Warsaw Regional Court ordered a medical opinion from the Tuberculosis and Lung Diseases Institute. The opinion of 10 October 2003 stated that
“(...) the patient presents a high risk of recurrent thromboembolic complications, which means that there is a need for preventive measures in certain situations to be taken (...). His current condition does not seem to warrant further diagnostic studies or referrals, such as to a pulmonologist.”
14. On 31 March 2004 the Warsaw Court of Appeal upheld the first-instance judgment.
15. By a ruling of 10 May 2005 the Supreme Court dismissed the applicant’s cassation appeal.
16. The relevant domestic law and practice concerning the imposition of detention during judicial proceedings (aresztowanie tymczasowe), the grounds for its extension, release from detention and rules governing other “preventive measures” (środki zapobiegawcze) are stated in the Court’s judgments in the cases of Gołek v. Poland, no. 31330/02, §§ 27-33, 25 April 2006, and Celejewski v. Poland, no. 17584/04, §§ 22-23, 4 August 2006.
NON_VIOLATED_ARTICLES: 5
NON_VIOLATED_PARAGRAPHS: 5-3


ITEMID: 001-89854
LANGUAGEISOCODE: ENG
RESPONDENT: BGR
BRANCH: CHAMBER
DATE: 2008
DOCNAME: CASE OF SLAVCHO KOSTOV v. BULGARIA
IMPORTANCE: 3
CONCLUSION: Remainder inadmissible;Violation of Art. 3 (substantive aspect);Violation of Art. 13+3;Non-pecuniary damage - award
JUDGES: Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Rait Maruste;Renate Jaeger;Volodymyr Butkevych;Zdravka Kalaydjieva
TEXT: 6. The applicant was detained on 16 September 1995 and was charged with aiding and abetting another individual to commit murder and attempted murder on the previous day, the 15th – the applicant had been in the car of the victim when the latter and his wife had been shot and was a close relative of the alleged murderer. The applicant was placed in pre-trial detention on the same day.
7. The applicant was released on 12 October 1995 and a restriction was placed on him not to leave his place of residence without the authorisation of the public prosecutor’s office.
8. On 16 December 1996 the Sliven regional public prosecutor’s office terminated the criminal proceedings against the applicant as unproven and lifted the restriction on his movement.
9. Between 16 September and 12 October 1995 the applicant was detained at the Sliven Regional Investigation Service detention facility.
10. The applicant contended that at this detention facility there had been (a) overcrowding, as he had been accommodated in a cell with another five detainees, (b) insufficient oxygen in the cell, (c) inadequate hygiene, as he had had no access to a toilet and all six detainees had had to drink from the same water container, (d) insufficient food, (e) no possibility for visits by friends or relatives, and (f) no access to newspapers or other media. He also claimed that as a result of having been detained in such conditions his selfesteem had declined and he had endured physical and psychological suffering.
11. On an unspecified date in 1999 the applicant initiated a civil action for damages against the Chief Public Prosecutor’s Office under section 2 of the State and Municipalities Responsibility for Damage Act 1988 (the “SMRDA”: renamed in 2006). He claimed that he had been charged with an offence which he had not committed, that on 16 September 1995 he had been detained for almost a month and that a restriction had then been placed on his movement for more than a year. The applicant also argued that he had had to endure physical and mental pain and suffering as a result of the unlawful criminal proceedings against him and the inadequate conditions of detention at the Sliven Regional Investigation Service detention facility. In addition, because of the prolonged restriction on his movement he claimed to have suffered loss of income as he had been unable to accept a job in Greece. The applicant sought 50,000 Bulgarian levs (BGN: 25,641 euros (EUR)) in compensation of which BGN 35,000 (EUR 17,948) represented compensation for pecuniary damage and BGN 15,000 (EUR 7,692) represented compensation for nonpecuniary damage.
12. In a judgment of 23 April 2001 the Sliven Regional Court found in favour of the applicant and ordered the Chief Public Prosecutor’s Office to pay him BGN 5,000 (EUR 2,564). This represented compensation for the non-pecuniary damage suffered by the applicant as a result of the unlawful acts and actions of the public prosecutor’s office during the period from 16 September 1995 to 16 December 1996 in charging him with aiding and abetting another individual to commit murder, holding him in pre-trial detention and then replacing it with a restriction not to leave his place of residence without the authorisation of the public prosecutor’s office. In reaching its decision, the Regional Court took into account the fact that the criminal proceedings and the associated restrictions imposed on the liberty and movement of the applicant had lasted for more than a year, which it found had caused him suffering and had brought about the break-up of his relationship with his fiancée. The court further found that he had been detained in “extremely harsh conditions” at the Sliven Regional Investigation Service detention facility, which it considered to have caused him physical and mental pain and suffering and to have had a negative effect on his dignity as he had been held in an overcrowded cell with another six individuals, without access to a toilet, bathing or any other facilities in order to maintain even basic hygiene, had been given food only once a day, had not been allowed visits by friends or relatives and had had no access to newspapers or any other media. The Regional Court also took note of a report by the paramedic at the said detention facility that the applicant had been healthy at the time of his arrival there, but had then developed an inflammation of the sciatic nerve accompanied by pain in the pelvis area and down the left leg. Lastly, the court found that the applicant’s reputation had been damaged as a result of having been unlawfully held in pre-trial detention and having had criminal proceedings initiated against him. The Regional Court dismissed as unsubstantiated the remainder of the claims in respect of pecuniary and non-pecuniary damage and, by applying section 10 (2) of the SMRDA, ordered the applicant to pay court fees of four percent on the dismissed part of his claim, which amounted to BGN 1,800 (EUR 923).
13. Both the applicant and the Sliven regional public prosecutor’s office appealed against the judgment.
14. In a judgment of 16 November 2001 the Burgas Court of Appeal reached similar conclusions on the facts of the case. It also found that the applicant had had a good reputation and no criminal record and that the criminal proceedings against him, his arrest and detention in inadequate conditions and the restriction on his movement had damaged his reputation and had caused him pain and suffering. Nevertheless, the Court of Appeal considered the amount awarded to be excessive and lowered the compensation for non-pecuniary damage to BGN 3,000 (EUR 1,538). It upheld the remainder of the judgment of the Regional Court and ordered the applicant to pay an additional BGN 80 (EUR 41) in court fees, proportionate to the additionally dismissed part of his claim.
15. The parties’ ensuing cassation appeals were both dismissed by the Supreme Court of Cassation on 18 April 2003.
16. Criminal proceedings were initiated against the applicant on an unspecified date in 2004 for having committed perjury in the proceedings regarding the murder of 15 September 1995.
17. On an unspecified date the applicant concluded a plea bargain agreement with the Sliven district public prosecutor’s office whereby he pleaded guilty to perjury and was sentenced to ten months’ imprisonment, which was suspended for three years. The plea bargain agreement was approved by the Sliven District Court on 10 February 2005.
18. The relevant provisions of the CCP and the Bulgarian courts’ practice before 1 January 2000 are summarised in the Court’s judgments in several similar cases (see, among others, Nikolova v. Bulgaria [GC], no. 31195/96, §§ 25-36, ECHR 1999-II; Ilijkov v. Bulgaria, no. 33977/96, §§ 55-59, 26 July 2001; and Yankov v. Bulgaria, no. 39084/97, §§ 79-88, ECHR 2003-XII (extracts)).
19. The SMRDA provided at the relevant time that the State was liable for damage caused to private persons by (a) the illegal orders, actions or omissions of government bodies and officials acting within the scope of, or in connection with, their administrative duties; and (b) the organs of the investigation, the prosecution and the courts for, inter alia, unlawful pretrial detention, if the detention order had been set aside for lack of lawful grounds, or for being charged with an offence if the criminal investigation had been terminated because the suspect was the perpetrator (sections 1-2).
20. In respect of the regime of detention and conditions of detention, the relevant domestic law and practice under sections 1 and 2 of the SMRDA has been summarised in the cases of Iovchev v. Bulgaria (no. 41211/98, §§ 76-80, 2 February 2006) and Hamanov v. Bulgaria (no. 44062/98, §§ 5660, 8 April 2004).
21. The system of court fees, which existed at the relevant time, in proceedings under the SMRDA and the practice of the domestic courts has been summarised in the cases of Stankov v. Bulgaria (no. 68490/01, §§ 19 21, ECHR 2007...) and Mihalkov v. Bulgaria (no. 67719/01, §§ 1923, 10 April 2008).
22. Following the judgment in the case of Stankov (cited above) the system of court fees was changed as of 30 May 2008. At present, a flat rate court fee is due for filing a claim under the SMRDA, which varies depending on the type of the claimant and is either BGN 10 or BGN 25 (EUR 5.12 or EUR 12.82). The court fee due for each subsequent appeal or request for reopening is half the aforestated amounts – BGN 5 or BGN 12.50 (EUR 2.56 or EUR 24.38: section 9a of the SMRDA and sections 2a and 18 (3) of Tariff of state fees collected by the courts under the Code of Civil Procedure).
23. The CPT visited Bulgaria in 1995, 1999, 2002, 2003 and 2006.
24. The Sliven Regional Investigation Service detention facility was visited in 2006.
25. A summary of the relevant findings and observations of the CPT, prior to its 2006 visit report, is contained in the Court’s judgments in the cases of Dobrev v. Bulgaria (no. 55389/00, §§ 44-56, 10 August 2006) and Malechkov v. Bulgaria (no. 57830/00, §§ 38-50, 28 June 2007).
26. In several of its reports the CPT has recommended that States apply a minimum standard of 4 sq m per detainee in multiple-occupancy cells (see, for example, the CPT reports on the 2002 visit to Bulgaria, CPT/Inf (2004) 21, paragraphs 82 and 87, on the 2004 visit to Poland, CPT/Inf (2006) 11, paragraphs 87 and 111, and the 2006 visit to Bulgaria, CPT/Inf (2008) 11, paragraphs 55, 77 and 90).
27. The CPT found that cells were often overcrowded – up to four persons in cells measuring 7 sq m. The cramped conditions were aggravated by the lack of direct access to natural light, poor artificial lighting and the absence of a differentiated day/night system, and inadequate ventilation. Further, the cells were in a poor state of hygiene and repair: the beds were dilapidated and in a bad state of repair, giving a very uneven base for the thin, tattered mattresses, and the blankets which were filthy. Similar to the reports cited above (see paragraph 26 above), the CPT recommended that cell occupancy rates be reduced to an acceptable level by applying a minimum standard of 4 sq m per detainee in multiple-occupancy cells.
28. The CPT further found that detainees were usually taken to the toilet three times during the day and kept plastic bottles or buckets in the cells for other occasions. They could take a shower once a week (sometimes, twice a week in the summer months). As regards personal hygiene items, only soap was occasionally provided.
29. Bed linen was usually provided by detainees’ families. There were no laundry facilities and detainees washed their clothes and bed linen themselves when they were taken to have a shower. Further, no cleaning materials were made available.
30. Food was provided three times a day, but the daily food allowance was less than BGN 1.50 (EUR 0.77) per person and detainees complained about the quantity and/or quality of the food.
31. There was no outdoor exercise yard due to the fact that the detention facility was located on one of the top floors in the building of the police station. Thus, the CPT found that detainees continued to spend months on end locked up in their cells twenty four hours a day. Inside the cells, in addition to books and newspapers, detainees were in principle allowed to have battery-operated radio and TV sets.
32. As to the arrangements for the provision of health care to detainees, the CPT found that there could be gaps of several days (up to a week) between admission and the initial medical examination by a doctor. Further, the general medical screening was cursory and did not identify detained persons’ health needs. Access to outside hospital facilities was in principle not a problem, but authorisation was needed from a prosecutor for such a transfer, and medical recommendations could be slowed down or overridden by legal considerations.
VIOLATED_ARTICLES: 13
3


ITEMID: 001-115402
LANGUAGEISOCODE: ENG
RESPONDENT: HRV
BRANCH: COMMITTEE
DATE: 2012
DOCNAME: CASE OF MARELJA v. CROATIA
IMPORTANCE: 4
CONCLUSION: Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Reasonable time)
JUDGES: Erik Møse;Julia Laffranque
TEXT: 4. The applicant was born in 1961 and lives in Đakovo.
5. On 14 July 2004 the applicant brought a civil action in the Zagreb Municipal Civil Court (Općinski građanski sud u Zagrebu) against insurance company J.O. seeking damages.
6. On 3 February 2010 that court adopted a judgement for the applicant.
7. On 22 September 2010 the Zagreb County Court (Županijski sud u Zagrebu) dismissed an appeal by the defendant and upheld the first-instance judgement. The judgement was served on the applicant’s representative on 6 December 2010.
8. Meanwhile, on 30 September 2008 the applicant lodged a request for the protection of the right to a hearing within a reasonable time (zahtjev za zaštitu prava na suđenje u razumnom roku) with the Zagreb County Court.
9. On 30 April 2009 the Zagreb County Court found a violation of the applicant’s right to a hearing within a reasonable time, awarded him 2,000 Croatian kunas (HRK) in compensation and ordered the Zagreb Municipal Civil Court to give a decision in the applicant’s case within six months of service of its decision. This decision was served on the applicant’s representative on 18 May 2009.
10. On 25 May 2009 the applicant appealed against the County Court’s decision in its part concerning the award of compensation. He argued that the compensation that court had awarded him was too low and sought HRK 20,000 instead.
11. On 30 September 2009 the Supreme Court (Vrhovni sud Republike Hrvatske) allowed the applicant’s appeal in part and awarded him additional HRK 4,000, that is, HRK 6,000 in total.
12. On 21 October 2009 the Zagreb County Court’s decision of 30 April 2009 was served on the Zagreb Municipal Civil Court with a view to deciding the applicant’s case within the time-limit set forth in that decision.
13. The relevant provisions of the Courts Act (Zakon o sudovima, Official Gazette nos. 150/05, 16/07 and 113/08), governing the request for the protection of the right to a hearing within a reasonable time, as the remedy for the length of judicial proceedings in Croatia, are set out in Praunsperger v. Croatia, no. 16553/08, § 21, 22 April 2010.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-106804
LANGUAGEISOCODE: ENG
RESPONDENT: UKR
BRANCH: COMMITTEE
DATE: 2011
DOCNAME: CASE OF MAKHONKO v. UKRAINE
IMPORTANCE: 4
CONCLUSION: Violation of Art. 6
JUDGES: Isabelle Berro-Lefèvre;Mark Villiger
TEXT: 4. The applicant was born in 1933 and lives in Mariupol.
5. On 2 June 1998 he lodged a claim with the Zhovtnevyy District Court of Mariupol (“Zhovtnevyy Court”) against his former employer, the A. company (subsequently succeeded by the M. company), seeking reimbursement of medication expenses and compensation for non-pecuniary damage caused to him as a result of the work-related injury.
6. Following three remittals of the case for fresh examination, on 26 September 2005 the court partly allowed the claim and awarded the applicant certain amounts. The judgment was enforced on 22 June 2006.
7. On 8 December 2005 and 22 October 2007, respectively, the Donetsk Regional Court of Appeal and the Kyiv City Court of Appeal (the latter court acting as a court of cassation) upheld that judgment.
8. According to the Government, in the course of the proceedings the applicant specified his claim and lodged several procedural petitions. Eight hearings were adjourned following his requests or due to his or both parties’ failure to appear, which protracted the proceedings by ten months approximately. Twenty-six hearings were adjourned mainly due to the respondent’s failure to appear or following its requests, due to the absence of a judge, because the court needed to obtain additional documents or for unspecified reasons. Four forensic examinations were carried out.
9. On 9 June 1998, in the course of the first set of proceedings, the applicant lodged an additional clam with the Zhovtnevyy Court against the A. company, seeking the recovery of salary-related arrears. On 13 December 2001 the court disjoined this claim from the first set.
10. Following two remittals of the case for fresh examination, on 29 December 2004 the court partially allowed that claim and awarded the applicant certain amounts. The judgment was enforced on 8 July 2005.
11. On 29 November 2005 and 26 February 2008, respectively, the Donetsk Regional Court of Appeal and the Kyiv City Court of Appeal (the latter court acting as a court of cassation) upheld that judgment.
12. According to the Government, in the course of the proceedings the applicant specified his claim, lodged several procedural petitions and twice lodged appeals in breach of the procedural formalities. Fifteen hearings were adjourned following his requests or due to his failure to appear, which protracted the proceedings by nine and a half months approximately. Nineteen hearings were adjourned mainly due to the respondent’s failure to appear or following its requests, because the court needed to obtain additional documents or for unspecified reasons. Six forensic examinations were carried out.
13. In September 1998 the applicant lodged a claim with the Zhovtnevyy Court against the A. company, seeking the recovery of certain health-related payments.
14. As it appears from the case file, on 13 December 2001 the court partially allowed the applicant’s claim and awarded him certain amounts. On 11 March 2003 and 8 September 2004, respectively, the Donetsk Regional Court of Appeal and the Supreme Court partially amended that judgment and upheld its remainder.
15. On 10 May 2002 the applicant lodged a claim with the Zhovtnevyy Court against the Social Insurance Fund, seeking the recovery of certain health-related payments.
16. Following one remittal of the case for fresh examination, on 20 October 2006 the court allowed the claim in part and awarded the applicant certain amounts. On 13 December 2006 and 2 April 2007, respectively, the Donetsk Regional Court of Appeal and the Supreme Court amended that judgment having increased the amounts due to the applicant.
17. According to the Government, in the course of the proceedings the applicant specified his claim and challenged the judge. Three hearings were adjourned due to his absence or following his requests. The applicant disagreed that he had requested adjournments. These delays on the applicant’s part protracted the proceedings by three months approximately. Nineteen hearings were adjourned mainly upon the respondent’s requests or its failure to attend the hearings, absence of a judge, electricity blackouts in the court premises, because the court needed to obtain additional documents or for unspecified reasons.
18. In September 2004 the applicant lodged a claim with the domestic courts against the Social Insurance Fund, seeking the recovery of the cost of sanatorium vouchers.
19. By the final ruling of 27 December 2007, the Supreme Court rejected that claim as unsubstantiated.
VIOLATED_ARTICLES: 6