ITEMID: 001-105733
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: ADMISSIBILITY
DATE: 2011
DOCNAME: ROBERTS AND ROBERTS v. THE UNITED KINGDOM
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Lech Garlicki;Ledi Bianku;Nicolas Bratza;Päivi Hirvelä;Simon Brown;Sverre Erik Jebens;Vincent A. De Gaetano
TEXT: 1. The applicants, Mr Christopher Roberts (“the first applicant”) and Mr Barry Roberts (“the second applicant”), are British nationals who were born in 1959 and 1956 respectively. The first applicant lives in Benfleet and the second applicant lives in Bexleyheath.
2.
3. The applicants are brothers and active members of the British National Party (“BNP”), a political party. At the time of the events in question, the first applicant, the London and Essex regional organiser for the BNP, was a potential candidate for the BNP in the London mayoral election due to take place in 2004. He was also a candidate for the BNP in the European elections in 2004 and in the United Kingdom general election of 2005. The second applicant was a candidate for the BNP in the 2001 and 2005 general elections.
4. On 9 March 2003 the applicants attended a BNP rally in London to promote the campaign for the London mayoral and local elections due to take place in 2004. Over GBP 1,000 in donations was collected during the rally.
5. Following the rally, in its March 2003 British Nationalist newsletter, the BNP published a report alleging that D. and R. had forcibly entered the first applicant’s home following the meeting of 9 March and stolen the collection money. In the article, headed “London ‘rally’ shambles”, it was reported:
“Last month a meeting to reinvigorate the party in London’s East End turned into a shambles. The meeting was hijacked by disruptive elements, many of whom not members of our party – and the event served not to breathe new life into the East End and support the party’s GLA [Greater London Authority] campaign next year, but to attack the party, its leadership and add personal grievances of all kinds.
The keynote address was given by the party’s previous, old leader, Mr John Tyndall, who launched a strong attack upon the party. This is merely the latest in a continual barrage of attacks that began last summer, the object of which is to cause as much disruption as possible.
...
[D.] of Stepney, east London is henceforth a proscribed person. A non-member, [D.] with [R.] (himself a proscribed person) and one other forcibly entered the home of London & the Essex regional organiser Chris Roberts on 9/3/03 and, with threats, stole £1,024 collection taken at the day’s east London meeting, [D.] and [R.] were prominent in turning the East End rally into a farcical beer garden. The matter is now in the hands of the police.”
6. The April 2003 edition of Spearhead, a far-right magazine owned and edited by Mr John Tyndall, the BNP’s former leader, also reported on the rally in an article headed “London rally best for years”:
“East London saw one of its best BNP meetings for many years on 9th March when an audience of 120 gathered above a pub in Newham to hear speeches aimed at generating support for the party’s campaign to contest the London mayoral election and the elections to the Greater London Authority in 2004.
...
The meeting ended in tremendous enthusiasm and a collection raised a really splendid £1,024.00.”
7. The rally was also reported in an article by Mr Nick Knowles in the April 2003 edition of Searchlight, a magazine that reports on the activities of far-right groups in Europe and which is openly critical of the BNP:
“The fractious infighting in the British National Party shows little sign of abating as its north-west regional organiser resigns and its former leader, John Tyndall, rallies forces against the current leadership in London.
...
Over 100 London activists attended the meeting arranged by the BNP east London organiser ...
Despite the best efforts of Chris Roberts to keep to the set agenda, Tyndall and others openly attacked the leadership, Tyndall’s exceptionally robust and bitter speech never mentioned anyone by name, referring only to ‘our chairman’ and ‘our leadership’. His words were punctuated by bursts of applause, especially when he directly criticised the party leadership.”
8. The story was picked up by Mr Gerry Gable in the May 2003 edition of Searchlight. In an article headed “Night of the short knives”, he reported:
“... Shortly after the rally the BNP March members’ bulletin came out with the claim that [D.] and [R.] had turned up at Roberts’ house and stolen the money collected at the meeting ... The party claims that the police have been informed about the alleged theft.
The story doing the rounds is that [D.] and [R.] initially went to collect the £200 booking fee for the meeting room, which Roberts had forgotten to pay in his rapid exit from the pub, but seeing all the money it appears that temptation got the better of them and they took the lot.”
9. D. and R. responded to the allegations in the June and August editions of Spearhead, setting out their version of the events of 9 March 2003 and denying the allegations of forced entry and attempted theft of the collection money.
10. In October 2003, Mr Gable wrote a further article for Searchlight in his regular column called “News from the sewers”. The article was headed “BNP London Row Rumbles on” and, in so far as material, reported as follows:
“... the BNP’s March bulletin accused two members of stealing the collection from the meeting. The story that was put around was that [D.] and [R.] ... stole the money from the house of Chris Roberts, the London and Essex organiser. It appears that the police investigated but decided not to act.
Perhaps the police are now more interested in Roberts and his brother Barry. [D.] and [R.] recently issued a long open letter attacking Griffin [the leader of the BNP] and his supporters, including Chris Roberts. It explains that it was Roberts who stole the money from the rally and that although it went against the grain, [D.] and [R.] reluctantly threatened to report him to the police. After Roberts angrily returned the money, the letter alleges, he and his brother Barry threatened to ‘kneecap, torture and kill’ [D.], [R.] and their respective families.
The letter complains that the Griffin leadership described Roberts as a self-made millionaire who was leaving the City to devote his time and fortune to the BNP, but he turned out to be a disappointment. ‘It was now quite obvious that a little village somewhere, was missing its idiot’.”
11. The applicants commenced libel proceedings against Searchlight and Mr Gable on 30 September 2004 in respect of the article of October 2003. The defendants raised two defences to the claim: justification (that the facts reported were true) and qualified privilege (that there was a public interest in the reporting and that the statements had been made without malice – see Reynolds at paragraph 26 below). In particular, the defendants relied upon the “reportage” variant of the qualified privilege defence, set out in the case of Al-Fagih, which permits journalists to repeat allegations that have already been published without verifying the accuracy of the allegations in certain circumstances (see paragraphs 27-28 below).
12. On 26 and 27 April 2006 a single judge sitting in the High Court heard a preliminary issue on the question of qualified privilege. In his judgment of 12 May 2006, he explained the general background as follows:
“... The BNP regularly places candidates before the electorate, both in London and elsewhere, and that in itself could be said to render the allegations and crossallegations (especially of apparent criminality) as of ‘significant interest’, but it is also relevant to have in mind that there was in or about October 2003, when the article was published ... ‘heightened public interest in the BNP’. This was in large measure because Mr Nick Griffin, who had taken over the leadership from Mr John Tyndall in 1999, had been given a high media profile in the course of presenting the party and its policies to the electorate.
My attention was drawn, in particular, to an article published in March 2003 in the BNP journal Identity ... [which] attracted a certain amount of media attention. Moreover, following success in local elections in Lancashire in 2002, the BNP had begun to put up more candidates in elections. Because of this high profile, people were naturally taking a greater interest in the party and also in policy and doctrinal divisions among its activists. A focus of particular interest was the split between two factions generally identified, respectively, with Mr Griffin and Mr Tyndall ...”
13. He summarised the various articles published in the British Nationalist, Spearhead and Searchlight (see paragraphs 5-10 above) and continued:
“24. It was against this background that the Defendants reported the [D./R.] denial of the allegation of criminality, to which they had already given currency in the May issue. It is clear to me that readers of the words complained of would be well aware of Mr Gable’s antipathy to the BNP and that he was merely reporting the conflicting positions rather than taking sides with either. They could hardly conclude that he had been present as an eye-witness and would, therefore, realise that he was not in a position to espouse one version or the other. What would be of interest to the reader would be the fact that the allegations and cross-allegations of criminal offences were being made by BNP factions against each other, and ‘not necessarily [their] truth or falsity’ ... It seems to me that these were allegations they were entitled to know about, in the context of a party presenting itself before the electorate of London, and especially so since the allegations against Messrs [D.] and [R.] had already been reported.”
14. Referring to the relevant criteria for establishing the defence of qualified privilege set out by Lord Nicholls of Birkenhead in the House of Lords judgment of Reynolds (see paragraph 26 below), the judge noted that the allegations were serious and that there was a legitimate general public interest in the subject matter. While no steps had been taken to verify the information, this was not fatal in a reportage case where the fact of the allegations being made was the important element of the story. The judge further observed that the source was less significant in a reportage case, as it was not the reliability of either side which mattered but rather the nature of the quarrel. He commented that there was no urgency about the matter, that no investigation into the allegations had been conducted and that no comment was sought from the applicants. However, he noted that both claimants had in any case accepted that they would never have discussed political matters with anyone from Searchlight and, in light of the long history of Mr Gable’s interaction with the BNP, he considered that the failure to make an approach to the applicants was reasonable. Finally, he considered it obvious to readers that each of the factions was denying impropriety and accusing the other and noted that Mr Gable was merely reporting the accusations and not “adopting” them. He concluded:
“36. There is a duty ... upon political commentators generally ... to cover the goingson in political parties, including disputes, fully and impartially. There is a corresponding legitimate interest in the public, and especially those who have a vote, to have such information available. More specifically, Searchlight having covered the allegations against Messrs [D.] and [R.] in its May 2003 issue, it would also be incumbent on it to cover their denials ...
37. In all the circumstances, I have no hesitation in upholding the privilege defence.”
15. He accordingly dismissed the applicants’ claim.
16. The applicants applied for leave to appeal to the Court of Appeal. Leave was refused on the papers by a single judge of the Court of Appeal on 9 August 2006, who endorsed the approach taken by the High Court judge, observing that:
“[The judge’s] approach, which would undoubtedly be taken by this court too, is that libel litigation is not the conduct of political vendettas by other means. The article was a gratified report by the BNP’s enemies of a venal falling out between some of its leading members and ex-members.”
17. At the renewed hearing for leave on 8 November 2006, leave was granted by two Court of Appeal judges.
18. The appeal was heard on 22 February 2007 before three judges of the Court of Appeal, including the judge who had initially refused leave to appeal on the papers. The applicants wished their counsel to apply for the judge who had refused leave to appeal to withdraw from the case. However, they were advised against this course of action by their counsel on the grounds that a judge would not allow his political opinions to influence his judgment and in any case such an application risked antagonising the judge in question.
19. On 12 July 2007, the Court of Appeal handed down its judgment dismissing the appeal.
20. As to the scope of the appeal, the judge who delivered the leading judgment of the court noted that in light of the pleaded defence of reportage, which had only recently been introduced to the jurisdiction through AlFagih, the appeal gave the court the opportunity to explore the nature and extent of that defence and its place in the libel law landscape. Following an examination of domestic and Strasbourg authorities, the judge summarised the position as follows:
“53. ... [T]he journalist has a good defence to a claim for libel if what he publishes, even without an attempt to verify its truth, amounts to reportage, the best description of which gleaned from these cases is that it is the neutral reporting without adoption or embellishment or subscribing to any belief in its truth of attributed allegations of both sides of a political and possibly some other kind of dispute ...”
21. The judge considered that the following matters had to be taken into account when examining whether there was a defence on the ground of reportage:
“(1) The information must be in the public interest.
(2) ... the publisher will not normally be protected unless he has taken reasonable steps to verify the truth and accuracy of what is published ... This is where reportage parts company with Reynolds. In a true case of reportage there is no need to take steps to ensure the accuracy of the published information.
(3) ... To qualify as reportage the report, judging the thrust of it as a whole, must have the effect of reporting, not the truth of the statements, but the fact that they were made ...
(4) Since the test is to establish the effect of the article as a whole, it is for the judge to rule upon it in a way analogous to a ruling on meaning ...
(5) This protection will be lost if the journalist adopts the report and makes it his own or if he fails to report the story in a fair, disinterested and neutral way ...
(6) To justify the attack on the claimant’s reputation the publication must always meet the standards of responsible journalism as that concept has developed from Reynolds, the burden being on the defendants ...
(7) The seriousness of the allegation ... is obviously relevant for the harm it does to reputation if the charges are untrue. Ordinarily it makes verification all the more important ...
(8) The relevant factors properly applied will embrace the significance of the protagonists in public life and there is no need for insistence as pre-conditions for reportage on the defendant being a responsible prominent person or the claimant being a public figure ...
(9) The urgency is relevant ... in the sense that fine editorial judgments taken as the presses are about to roll may command a more sympathetic review than decisions to publish with the luxury of time to reflect and public interest can wane with the passage of time ...”
22. On the facts of the case, the judge considered that the October 2003 article covered a subject of legitimate public interest. He further found that the allegations were made in the context of reportage and were not adopted by the respondents as their own, thus absolving the respondents from verifying the truth of the allegations. While the allegations were serious, the thrust of the article related to the disagreement as to who should take charge of the collection money and not whether one or the other of the protagonists had stolen it. The judge was of the view that the public were entitled to know that the BNP was divided by this dispute. He observed that the source of the information was attributed and, given that the truth of the information was not being asserted, the reliability of the source was of little significance. In this regard, he noted that Mr Gable had made some inquiries of other sources in order to establish that the dispute was real. Although no comment was sought from the applicants, this was understandable in light of the history between them and Mr Gable. While the tone was somewhat sarcastic, it was nonetheless as neutral and disinterested as any Searchlight article on the BNP could be. He concluded that the impugned article constituted a piece of responsible journalism.
23. On 19 July 2007 the applicants wrote to the judge who had initially refused leave to appeal on the papers and who had been a member of the Court of Appeal bench which heard the appeal (see paragraph 18 above) accusing him of bias. They referred to the fact that he had refused leave to appeal in the case on the papers (see paragraph 16 above) in a manner which, they considered, indicated his hostility towards their case. They further complained that following the appeal hearing but prior to the delivery of the judgment, the judge had attended a conference on extreme speech and democracy, at which persons hostile to the BNP and acquainted with Mr Gable had been present. They asked for confirmation of whether the judge was a subscriber to Searchlight. The director of the Court of Appeal responded on 14 August 2007 denying that there was any lack of impartiality and explaining that no political issues had been considered by the Court of Appeal in the decision, which concerned solely the development of libel law.
24. On 10 September 2007 the applicants wrote to the Court of Appeal judge who had delivered the leading judgment in their case, referring to the fact that the judge who had initially refused leave to appeal had formerly been a member of the Communist party and alleging that as a consequence he was “diametrically opposed to the BNP”. They referred again to the fact that the judge had attended a conference on extreme speech and pressed for a response as to whether he subscribed to Searchlight. In a subsequent letter dated 14 September 2007, the applicants wrote again to the judge who had delivered the leading judgment to reiterate their complaint of bias, having discovered that Mr Gable had stood as a parliamentary candidate for the Communist Party at the time when the judge who had refused leave on the papers was a member of that party. They concluded that Mr Gable and the judge were therefore personally acquainted with one another.
25. The applicants subsequently applied for leave to appeal the decision of the Court of Appeal. In their grounds of appeal dated 10 August 2007, they contested the Court of Appeal’s decision regarding the defence of reportage. They did not challenge the impartiality of the judge in the appeal proceedings. They were refused leave to appeal by the House of Lords on 31 January 2008.
26. The defence of qualified privilege was examined by the House of Lords in Reynolds v. Times Newspaper Limited [1999] UKHL 45. In the context of his opinion, Lord Nicholls listed ten factors relevant to whether a publication could avail itself of a qualified privilege defence to libel proceedings, noting that the factors set out were illustrative only. The relevant factors he identified were:
“1. The seriousness of the allegation ...
2. The nature of the information, and the extent to which the subject-matter is a matter of public concern.
3. The source of the information ...
4. The steps taken to verify the information.
5. The status of the information ...
6. The urgency of the matter ...
7. Whether comment was sought from the plaintiff ... An approach to the plaintiff will not always be necessary.
8. Whether the article contained the gist of the plaintiff’s side of the story.
9. The tone of the article. A newspaper can raise queries or call for an investigation. It need not adopt allegations as statements of fact.
10. The circumstances of the publication, including the timing.”
27. In Al-Fagih v. HH Saudi Research & Marketing (UK) Ltd [2001] EWCA Civ 1634, the claimant, a member of a dissident party in Saudi Arabia, sued the defendant newspaper, which supported the Saudi government, for reporting a dispute between the claimant and A.M., another member of his political party. The impugned report stated that A.M. had told the defendant’s journalist that the claimant had spread malicious rumours about him (A.M.) and had said that A.M.’s mother had procured women to have sexual intercourse with him at his home. At the liability hearing it was common ground that A.M. had made that allegation to the journalist and that it was in fact untrue. The newspaper published the allegation without verifying the information and the claimant was only contacted and asked for his comments on the allegations the following day.
28. The Court of Appeal considered that in a libel case, verification of a third party’s allegation would ordinarily be appropriate and perhaps even essential before the defence of qualified privilege could be relied upon. However, the public was entitled to be informed of a political dispute which was being fully, fairly and disinterestedly reported without having to wait for the publisher, following an attempt at verification, to commit himself to one side or the other. Lord Justice Simon Brown (as he then was) noted:
“50. ... To my mind [the newspaper] was entitled in this case to publish without attempting verification. Indeed in the present context verification could even be thought inconsistent with the objective reporting of the dispute ...
51. I am not, of course, saying that verification (or at least an attempt at verification) of a third party’s allegations will not ordinarily be appropriate and perhaps even essential ...
52. I am saying, however, that there will be circumstances where ..., in short, both sides to a political dispute are being fully, fairly and disinterestedly reported in their respective allegations and responses. In this situation it seems to me that the public is entitled to be informed of such a dispute without having to wait for the publisher, following an attempt at verification, to commit himself to one side or the other.”


ITEMID: 001-97782
LANGUAGEISOCODE: ENG
RESPONDENT: LVA
BRANCH: ADMISSIBILITY
DATE: 2010
DOCNAME: KEIPENVARDECAS v. LATVIA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Alvina Gyulumyan;Elisabet Fura;Ineta Ziemele;Josep Casadevall;Luis López Guerra
TEXT: 1. The applicants, Mrs Praskovja Keipenvardeca, a permanently resident non-citizen of the Republic of Latvia (“the first applicant”), and her daughter, Ms Natalya Keipenvardeca, a Latvian national (“the second applicant”) were born in 1936 and 1970 and live in Rīga. The respondent Government were represented by their Agent, Mrs Inga Reine.
2. The facts of the case, as submitted by the parties, may be summarised as follows.
3. The applicants' flat was burgled twice in succession, on 19 April (“the first burglary”) and 21 April 1999 (“the second burglary”). On 21 April a preliminary investigation was opened against inter alia X, a minor at the time. With decisions adopted on 22 April, 6 July 1999 and 15 February 2000 the first applicant was joined as a civil party in the criminal proceedings against X. By a decision of 16 February 2000 at the latest, the second applicant was joined as a civil party in the same proceedings.
4. On 21 April 1999 the preliminary investigation was opened.
5. On 23 April 1999 X was remanded in custody, where he remained until 21 September. He was again arrested on 5 August 2000.
6. On 25 April 1999 a decision was taken to impose an attachment on X's property in order to secure the applicants' civil claims. It was noted that X did not possess any property. On 28 April some of the stolen belongings and money were returned to the first applicant.
7. Initially, on 29 April 1999 the case materials in relation to both burglaries were separated since X was suspected of having committed only the second burglary. On 3 May a charge was brought against him in that connection. However, it followed from the testimony given by X on the same date that he had also participated in the first burglary. On 31 July a second charge was brought against X in relation to the first burglary. Subsequently, on 9 August the case materials against X were joined together. On 20 August X's detention order was extended until 21 September. On that date he was released.
8. Following the applicants' complaint of 24 January 2000 about inactivity of the public prosecutor in proceeding with the case, on 7 February another public prosecutor was assigned to the case.
9. On 22 February 2000 the mother of X was joined as a civil respondent in the criminal proceedings. On 28 February 2000 the public prosecutor requested information from a competent domestic authority about any real estate owned by X or his mother.
10. On 9 March 2000 a final charge was brought against X in relation to both burglaries. Since X did not appear before the public prosecutor as requested to be informed of the final charge, a detention order was issued on 14 March. The police set out to locate and arrest him. Eventually, on 5 August, they arrested him and on 5 September 2000 the case was sent to the Rīga Regional Court for adjudication.
11. On 11 September 2000 the Rīga Regional Court received the case. On 1 October X reached the age of majority and on the next day he was committed for trial in that court. The date of the hearing was not set.
12. On 24 August 2001 the applicants submitted a petition to the Rīga Regional Court to clarify whether the amendments to the Code of Criminal Procedure of 20 June 2001 applied in the proceedings against X. They requested that the court proceed with the case within the time-limits prescribed by domestic law. They also asked if the case would be transferred to the Rīga City Latgale District Court pursuant to the same amendments to the Code of Criminal Procedure.
13. On 30 August 2001 the Rīga Regional Court forwarded the case to the Criminal Chamber of the Supreme Court (Augstākās Tiesas Krimināllietu tiesu palāta) to determine the competent court to adjudicate the case pursuant to the amendments to the Code of Criminal Procedure.
14. On 20 September 2001 the Criminal Chamber of the Supreme Court noted as follows:
“The Rīga Regional Court has forwarded the case [against X] for determination of the competent court in accordance with transitional provision no. 2 of 20 June 2001 Amendments to the Code of Criminal Procedure.
Pursuant to the Amendments to the Code of Criminal Procedure, criminal cases against persons accused of crimes for which responsibility is determined in section 175 of the Criminal Law are to be examined by a District (City) Court.
According to transitional provision no. 2, a Regional Court may transfer a criminal case to a District (City) Court if the case has been sent for adjudication to the former court by 20 March 2001, after which date the latter court is competent to adjudicate upon it, and if the former has not yet begun to adjudicate and if a minor is being held in detention in the case.
The Criminal Chamber of the Supreme Court shall decide upon such transfer.
[X] was born on 1 October 1982 and was committed for trial on 2 October 2000 as a minor...”
15. As a result, it was decided to transfer the criminal case to the Rīga City Latgale District Court. On 27 September that court committed X for trial and scheduled the first hearing for 20 December.
16. On 27 December 2001 the Rīga City Latgale District Court convicted X of two counts of aggravated burglary. The offences were qualified under section 175, paragraph 4 of the Criminal Law. The Rīga City Latgale District Court sentenced him to eight years' imprisonment and ordered confiscation of his property. The court awarded 2,692.29 Latvian lati (LVL) and LVL 4,065 in damages to the first and the second applicants, excluding the value of the applicants' property that had been returned to them during the criminal proceedings.
17. On 4 January 2002 the applicants appealed against the judgment of the court of first instance and requested that X's sentence be increased to ten years' imprisonment and that his parents be declared liable for damages.
18. On 13 May 2002 the case was sent to the Rīga Regional Court. The hearings were scheduled for 2 September.
19. On 2 September 2002 the Rīga Regional Court upheld the judgment of the court of first instance but reduced the sentence to five years' imprisonment. That court found that the first instance court had lawfully ordered X to pay damages since he was 19 by the date when that court handed down its judgment and was fully liable for the loss inflicted.
20. According to the applicants, the full judgment was drawn up on 28 October 2002 and sent to them on 22 January 2003. They received its translation into Russian on 21 March 2003.
21. On 5 September 2002 the applicants requested that the Rīga Regional Court extend the time-limit for appeal on points of law and provide a translation of the judgment into Russian.
22. On 11 September 2002 the applicants gave notice of a preliminary appeal on points of law, stating that they would submit an appeal on points of law in full within ten days of receipt of a translation of the judgment into Russian.
23. On 1 April 2003 the applicants appealed on points of law.
24. On 12 May 2003 the Criminal Department of the Senate of the Supreme Court in a preparatory meeting dismissed the appeal on points of law.
25. Following X's conviction, the applicants were not able to have their award of damages enforced because X had no financial means and no property. It appears that the applicants have not received the awarded damages to date.
26. The former Code of Criminal Procedure (in force until 1 October 2005), applicable at the material time, stipulated the competence of the domestic courts. Section 31 provided that District (City) Courts (as the courts of first instance) examined criminal cases not falling within the competence of Regional Courts. According to section 32 Regional Courts examined all cases involving very serious crimes and some other categories of legally complex cases, in addition to their inherent competence as courts of appeal. Aggravated burglaries involving large amounts (section 175, paragraph 4 of the Criminal Law) were very serious crimes and thus had to be examined by Regional Courts.
27. On 15 February 2001 (effective as of 20 March) amendments to the Code of Criminal Procedure were adopted with a view to reducing the backlog of cases before certain District (City) Courts and Regional Courts. They were also aimed at ensuring an even distribution of cases among domestic courts. The competence of Regional Courts was established to hear cases involving specific crimes prescribed by the Criminal Law as courts of first instance. It no longer included any type of burglaries. Thus starting from 20 March 2001 cases involving burglaries had to be examined by District (City) Courts. Yet, according to the transitional provision cases where the accused had already been committed for trial before 20 March were to be examined by the court that initially received the case.
28. On 20 June 2001 (effective as of 12 July) another set of amendments to the Code of Criminal Procedure was adopted with regard to the detention of minors. According to transitional provision no. 2 in cases where a minor was kept in detention, the trial had not yet commenced and if a case had been sent for adjudicating to Regional Court but after 20 March 2001 it fell to be examined by District (City) Court, the latter could examine the case if the Criminal Chamber of the Supreme Court decided about the transfer.
29. According to section 101, paragraph 1 of the Code of Criminal Procedure a civil claim could be submitted by an individual who had suffered damage as a result of crime. It could be brought against the accused or the person who was materially liable for the acts of the accused. By virtue of section 141 the investigator or the public prosecutor determined who bore the liability for a civil claim. If it was not the accused, the civil respondent, for example parents of the accused, had to be joined in the proceedings. Attachment of property could be imposed on the assets of the accused or of a person who was materially liable for the acts of the accused in order to secure a civil claim (section 175, paragraph 1).
30. In relation to the complaint procedure, section 220 gave a victim of a crime and a civil party the right to complain about the actions of the investigator or the public prosecutor. Further sections of the Code of Criminal Procedure specified the procedure for complaints before and against the actions of a public prosecutor. The prosecutor had to decide upon a complaint within three days following its receipt and notify the petitioner. The decision could be appealed against to a higher-ranking public prosecutor.
31. With regard to the trial at the first-instance court, section 223, paragraph 4 set a time-limit for committing the accused for trial. The decision had to be adopted within fourteen days of the date when the case was received at the court. Pursuant to section 241, adjudication of a case in a hearing had to be commenced within twenty days (in exceptional cases within a month) of the date when the case was received at the court. A legal representative of a minor was required to take part in the proceedings until the minor reached the age of majority (section 251).
32. Finally, section 447, paragraph 3 of the Code of Criminal Procedure, concerning decisions of an appellate court, stipulated that a judgment or its operative part (rezolutīvā daļa) had to be pronounced. If only the operative part was pronounced, this had to be done in writing. The reasoned judgment had to be drawn up within five days.


ITEMID: 001-78623
LANGUAGEISOCODE: ENG
RESPONDENT: ITA
BRANCH: GRANDCHAMBER
DATE: 2006
DOCNAME: CASE OF MARKOVIC AND OTHERS v. ITALY
IMPORTANCE: 1
CONCLUSION: Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Access to court)
JUDGES: Anatoly Kovler;Christos Rozakis;Egbert Myjer;Ireneu Cabral Barreto;Ján Šikuta;Jean-Paul Costa;John Hedigan;Karel Jungwiert;Lucius Caflisch;Luzius Wildhaber;Margarita Tsatsa-Nikolovska;Mindia Ugrekhelidze;Nicolas Bratza;Vladimiro Zagrebelsky
TEXT: 9. The ten applicants are all citizens of Serbia and Montenegro, which was known at the time of the events in question as the Federal Republic of Yugoslavia (“the FRY”).
The first two applicants, Dusan and Zoran Markovic, were born in 1924 and 1952 respectively, and applied to the Court on behalf of Dejan Markovic, deceased son of Dusan Markovic and brother of Zoran Markovic.
The third and fourth applicants, Dusika and Vladimir Jontic, were born in 1948 and 1978 respectively, and applied to the Court on behalf of Slobodan Jontic, deceased husband of Dusika Jontic and father of Vladimir Jontic.
The fifth applicant, Draga Jankovic, was born in 1947 and applied to the Court on behalf of her deceased husband, Milovan Jankovic.
The sixth and seventh applicants, Mirjana and Slavica Stevanovic, were born in 1945 and 1974 respectively, and applied to the Court on behalf of Slavisa Stevanovic, deceased son of Mirjana Stevanovic and brother of Slavica Stevanovic.
The eighth, ninth and tenth applicants, Milena, Obrad and Dejan Dragojevic, were born in 1953, 1946 and 1975 respectively, and applied to the Court on behalf of Dragorad Dragojevic, deceased son of Milena and Obrad Dragojevic and brother of Dejan Dragojevic.
10. The applicants lodged the present application to complain of the outcome of an action in damages which they had brought in the Italian courts in respect of an air strike against the FRY.
11. The facts of the case relate to the same events as those considered by the Court in its decision in the case of Banković and Others v. Belgium and Others ((dec.) [GC], no. 52207/99, ECHR 2001-XII). The facts in that case were summarised as follows:
“6. The conflict in Kosovo between Serbian and Kosovar Albanian forces during 1998 and 1999 is well documented. Against the background of the escalating conflict, together with the growing concerns and unsuccessful diplomatic initiatives of the international community, the six-nation Contact Group (established in 1992 by the London Conference) met and agreed to convene negotiations between the parties to the conflict.
7. On 30 January 1999, and following a decision of its North Atlantic Council (NAC), the North Atlantic Treaty Organisation (NATO) announced air strikes on the territory of the FRY in the case of non-compliance with the demands of the international community. Negotiations consequently took place between the parties to the conflict from 6 to 23 February 1999 in Rambouillet and from 15 to 18 March 1999 in Paris. The resulting proposed peace agreement was signed by the Kosovar Albanian delegation but not by the Serbian delegation.
8. Considering that all efforts to achieve a negotiated political solution to the Kosovo crisis had failed, the NAC decided on, and on 23 March 1999 the Secretary General of NATO announced, the beginning of air strikes (Operation Allied Force) against the FRY. The air strikes lasted from 24 March to 8 June 1999.
...
9. Three television channels and four radio stations operated from the RTS facilities in Belgrade. The main production facilities were housed in three buildings at Takovska Street. The master control room was housed on the first floor of one of the buildings and was staffed mainly by technical staff.
10. On 23 April 1999, just after 2 a.m. approximately, one of the RTS buildings at Takovska Street was hit by a missile launched from a NATO forces’ aircraft. Two of the four floors of the building collapsed and the master control room was destroyed.
11. ... Twenty-four targets were hit in the FRY that night, including three in Belgrade.”
12. The partial collapse of the RTS building caused the deaths of sixteen people, including the five relatives of the applicants.
13. On 31 May 2000 the first four applicants brought an action in damages in the Rome District Court under Article 2043 of the Italian Civil Code. The other six applicants applied to be joined to the proceedings on 3 November 2000.
14. The applicants believed that civil liability for the deaths of their relatives lay with the Italian Prime Minister’s Office and Ministry of Defence and with the Command of NATO’s Allied Forces in Southern Europe (AFSOUTH).
They argued that the Italian courts had jurisdiction to hear the case. In particular, on the basis of the wording of Article 6 of the Italian Criminal Code, they submitted that the unlawful act that had caused the alleged damage should be regarded as having been committed in Italy inasmuch as the military action had been organised on Italian territory and part of it had taken place there. They based this argument on the extent of Italy’s commitment – involving substantial political and logistical support – to the military mission in question. Specifically, Italy, unlike other NATO members, had provided the air bases from which the aircraft that had bombed Belgrade and the RTS had taken off. They also relied in support of their claim on Article 174 of the Wartime Military Criminal Code and on the London Convention of 1951 and the Protocol Additional to the Geneva Conventions.
15. The defendants argued that the Italian courts had no jurisdiction to hear the case. The proceedings against AFSOUTH were discontinued by the applicants.
16. The Prime Minister’s Office and the Ministry of Defence subsequently sought a preliminary ruling from the Court of Cassation on the question of jurisdiction (regolamento preventivo di giurisdizione) under Article 41 of the Italian Code of Civil Procedure.
17. In written submissions dated 16 November 2001, Assistant Principal State Counsel at the Court of Cassation argued that the application for a preliminary ruling should be declared inadmissible as it concerned the merits of the claim, not the issue of jurisdiction. He stated as follows:
“The governmental bodies defending this claim have requested a preliminary ruling on the issue of jurisdiction, arguing that:
(a) since the action is brought against the Italian State as a specific (unitary) subject of international law for acts performed in the exercise of its imperium (iure imperii), it cannot be brought in the Italian courts;
(b) paragraph 5 of Article VIII of the London Convention of 19 June 1951, which Italy ratified by Law no. 1335 of 1955, does not provide any basis for the action either, as it applies to damage caused in the receiving State.
The government seek to show through this jurisdictional issue that the Italian legal system does not contain any provision or principle capable of providing a basis for the alleged personal right [diritto soggettivo perfetto] or of guaranteeing it in the abstract.
Accordingly, the position is that:
(a) the government argue that the Italian State cannot be held liable for acts carried out in the exercise of its imperium;
(b) in addition, they deny that the said London Convention can be used to determine the place where the acts which caused the alleged damage took place (it is not by accident that the applicant has cited the provisions of the Criminal Code referring to the place where the offence was committed).
It follows that the questions thus raised go to the merits, not to the issue of jurisdiction (see judgment no. 903 of 17 December 1999 of the Court of Cassation, sitting as a full court).
For these reasons, the Court of Cassation, sitting as a full court, is asked to declare the application inadmissible, with all the consequences which that entails in law.”
18. In a ruling (no. 8157) of 8 February 2002, which was deposited with the registry on 5 June 2002 and conveyed to the applicants on 11 June 2002, the Court of Cassation, sitting as a full court (Sezioni Unite), found that the Italian courts had no jurisdiction. It reasoned as follows:
“...
2. The claim seeks to impute liability to the Italian State on the basis of an act of war, in particular the conduct of hostilities through aerial warfare. The choice of the means that will be used to conduct hostilities is an act of government. These are acts through which political functions are performed and the Constitution provides for them to be assigned to a constitutional body. The nature of such functions precludes any claim to a protected interest in relation thereto, so that the acts by which they are carried out may or may not have a specific content – see the judgments of the full court of 12 July 1968 (no. 2452), 17 October 1980 (no. 5583) and 8 January 1993 (no. 124). With respect to acts of this type, no court has the power to review the manner in which the function was performed.
3. While the purpose of the provisions of international agreements governing the conduct of hostilities – the Protocol Additional to the Geneva Conventions (Articles 35.2, 48, 49, 51, 52 and 57) and the European Convention on Human Rights (Articles 2 and 15 § 2) – is to protect civilians in the event of attack, they are rules of international law, and so also regulate relations between States.
These same treaties lay down the procedure for finding a violation and the sanctions in the event of liability (Article 91 of the Protocol and Article 41 of the Convention); they also designate the international courts and tribunals with jurisdiction to make such a finding.
However, the legislation implementing these rules in the Italian State does not contain any express provision enabling injured parties to seek reparation from the State for damage sustained as a result of a violation of the rules of international law.
The notion that provisions to that effect may implicitly have been introduced into the system through the implementation of rules of international law is at odds with the converse principle that has been mentioned which holds that protected individual interests are no bar to carrying out functions of a political nature.
Indeed, in order to enable reparation to be provided in the domestic system for loss sustained as a result of a violation of the ‘reasonable time’ requirement under Article 6 of the Convention on Human Rights, [the State] introduced appropriate legislation (Law no. 89 of 24 March 2001).
4. No entitlement to a review of the government’s decision concerning the conduct of hostilities with respect to the NATO aerial operations against the Federal Republic of Yugoslavia can be found in the London Convention of 1951.
The fact that the aircraft used to bomb the Belgrade radio and television station were able to use bases situated on Italian territory constitutes but one element of the highly complex operation whose lawfulness it is sought to review and is not therefore relevant to the application of the rule laid down in paragraph 5 of Article VIII of the Convention, which on the contrary presupposes the commission of an act that is amenable to review.”
19. The Court of Cassation’s ruling brought to an end, ipso jure, the proceedings in the Rome District Court.
20. The relevant provisions of the Italian Constitution are as follows:
“The Italian legal system shall comply with the generally recognised rules of international law.
...”
“Everyone may bring legal proceedings to protect his or her rights and legitimate interests.
...”
“Civil servants, other agents of the State and public entities shall be directly responsible, in accordance with the criminal, civil and administrative law, for acts committed in breach of rights. In connection with such acts, civil liability shall extend to the State and public entities.
...”
“Judicial protection of rights and legitimate interests in the ordinary and administrative courts shall always lie against acts of the public administrative authorities.
It may not be excluded or limited to extraordinary remedies or specific categories of act.
The law shall specify which judicial bodies are empowered to set aside acts of the public authorities, in what cases and with what effects.”
21. Article 31 of Royal Decree no. 1024 of 26 June 1924 provides:
“No appeal to the Consiglio di Stato, sitting in its judicial capacity, shall lie against acts or decisions of the government which involve the exercise of political power.”
22. Article 2043 of the Civil Code provides:
“Any unlawful act which causes damage to another will render the perpetrator liable in damages under the civil law.”
23. Article 41 of the Code of Civil Procedure, which deals with the issue of jurisdiction, provides:
“For so long as there has been no determination of the merits of the proceedings at first instance, any party may seek a ruling on a question of jurisdiction under Article 37 from the Court of Cassation, sitting as a full court. ...”
Article 37 of the Code of Civil Procedure provides:
“A ruling that an ordinary court has no jurisdiction because the case concerns a public authority or is within the province of a special court may be made at any time and at any level of jurisdiction, including by the court of its own motion.”
24. The relevant provisions of the Criminal Code provide:
“Anyone who commits an offence on the territory of the State shall be punished in accordance with Italian law.
The offence will be regarded as having been committed on the territory of the State if all or part of the act or omission at the origin of the offence or all or some of the consequences of such act or omission occurred there.”
“Restitution and compensation for damage.
The commission of an offence shall give rise to an obligation of restitution under the civil law [Articles 2043 et seq. of the Civil Code].
Any offence that causes pecuniary damage [Article 2056 of the Civil Code] or non-pecuniary damage [Article 2059 of the Civil Code] shall impose an obligation on the perpetrator and those accountable for his or her actions under the civil law [Article 2047 of the Civil Code] to make reparation.”
25. Article 174 of the Wartime Military Criminal Code reads as follows:
“A commanding officer of a military force who, in order to inflict damage on the enemy, orders or authorises the use of a means or method of warfare that is prohibited by law or by international treaty or which is in any event contrary to the military code of honour shall be liable on conviction to a minimum of five years’ imprisonment unless the act concerned is a criminal offence under a specific statutory provision.
If the act results in a massacre, the minimum term of imprisonment shall be ten years.”
26. In a judgment of 10 July 1992 (no. 124/1993), the Court of Cassation, sitting as a full court, established the rule that the courts had no jurisdiction to hear cases against the authorities relating to political acts.
A trade union had brought an action against the Prime Minister, the Civil Service Ministry and the Ministry of State Education on the ground that the government had failed to comply with their undertakings. The Court of Cassation noted, inter alia, that such a failure could only engage the government’s political responsibility, but could not create a right. It ruled that the courts had no jurisdiction to hear the case after formulating the following principle:
“Legislative action is a political act since it is the standard means of performing political and governmental functions. The governmental authority’s conduct in the present case was not, therefore, capable in law of causing individuals damage (whether to their personal rights or to their legitimate interests); it consequently escapes all judicial scrutiny.”
27. The Italian courts had in fact already examined this question in a number of earlier cases and had ruled that, as they were political in nature, the following acts escaped the scrutiny of the domestic courts:
(i) a waiver of the right to exercise jurisdiction under Article VII of the Agreement of 1951 between the Parties to the North Atlantic Treaty regarding the Status of their Forces (Court of Cassation, Third Criminal Division, 21 March 1962, no. 1645, Kinardi and Others, Giust. Pen. [Criminal Justice], 1963, III, p. 80);
(ii) the assignment of property belonging to Italian nationals under the London Convention of 1951 (Court of Cassation, sitting as a full court, 12 July 1968, no. 2452, De Langlade v. the Treasury, Rivista diritto internazionale [International Law Review], 1969, p. 583);
(iii) a Transport Ministry decree suspending permission to transport goods to Austria (Rome District Court, 18 May 1993, Soc. S. and C. Transp. GmbH v. Ministry of Transport, Rivista diritto internazionale privato e processuale [Review of Private International Law and Procedure], 1995, p. 755);
(iv) a decision by the Ministry of Employment appointing employees’ representatives as delegates to the International Labour Organisation (Lazio Regional Administrative Court, 20 August 1976, no. 492, CISNAL v. Ministry of Employment and Ministry of Foreign Affairs, Italian Yearbook of International Law, 1978-79, p. 184);
(v) a declaration of war and treaty provisions relating to compensation for war damage (Lazio Regional Administrative Court (I), 28 January 1985, no. 106, Pestalozza v. the Treasury, Trib. Amm. Reg. [Regional Administrative Court Review], 1985, p. 381).
28. The full court of the Court of Cassation delivered a further judgment (no. 5044) on 11 March 2004. It concerned the jurisdiction of the Italian civil courts to hear claims for compensation for damage sustained by a person who had been captured by the German military in 1944 and deported to work for German industry. Germany had pleaded State immunity and the courts of first instance and appeal had held that they had no jurisdiction to make an order against it. The Court of Cassation carried out a very extensive examination of the international treaties on international crime, imprescriptibility, the international responsibility of States, immunity from jurisdiction and of the case-law of various international tribunals. In holding that the immunity plea failed and the Italian courts had to decide the claim, it stated inter alia:
“... In a decision no. 8157 of 5 June 2002, this full court did indeed rule that acts performed by the State in the conduct of hostilities escape all scrutiny by the courts, as they are acts through which ‘political’ functions are carried out. The nature of these functions ‘precludes any claim to a protected interest in respect thereto, so that there may or may not be a specific content to the acts through which they are performed’. Pursuant to this principle, the Italian courts were held to have no jurisdiction to hear a claim against the Italian Prime Minister’s Office and the Italian Ministry of Defence for compensation for the destruction of a non-military objective during NATO air strikes against the Federal Republic of Yugoslavia or for the resultant civilian deaths. It is readily apparent, however, firstly, that the fact that the court cannot contest the manner in which the actions of the supreme head of the res publica are conducted does not prevent it from finding that a criminal offence has been committed or that there is related liability under the criminal or civil law (Articles 90 and 96 of the Constitution; section 15 of Constitutional Law no. 1 of 1953; and section 30 of Law no. 20 of 1962); secondly, by virtue of the principle of adaptation established by Article 10 § 1 of the Constitution, the ‘generally recognised’ principles of international law which govern the fundamental values constituted by the freedom and dignity of the human being and characterise the most serious assaults upon the integrity of those values as ‘international crimes’ have ‘automatically’ been integrated into our system and are entirely apt for use as a standard whereby the injustice of damage caused to others by intentional or negligent ‘acts’ may be gauged. It is evident, therefore, that the principles referred to in this decision cannot be taken into consideration in the instant case. ...
9.1 Granting immunity from jurisdiction to States who have been guilty of such wrongdoing is in manifest contradiction with the aforementioned normative rules because it constitutes an obstacle to the defence of values whose protection, like these norms and principles, must on the contrary be considered essential for the entire international community, even to the point of justifying forms of mandatory response in the most serious cases. Nor is there any doubt that the antinomy must be resolved by giving priority to the highest ranking norms, as the judges in the minority (eight to nine) stated in their dissenting opinion appended to the judgment in Al-Adsani [v. the United Kingdom [GC], no. 35763/97, ECHR 2001-XI], by precluding in such cases any claim by the State to immunity from suit in the foreign courts.”
29. In 1993 the Italian government decided to send a military expeditionary force to Somalia to perform peacekeeping operations. After the expeditionary force had returned to Italy, it was discovered that some of its members had engaged in the torture of Somali prisoners. Two members of the expedition were charged and given prison sentences. They were also ordered to pay compensation to the civil party. In judgment no. 28154 of 7 March 2002, the text of which was deposited with the registry on 10 July 2002, the Rome Civil Court ordered another Italian serviceman and the Ministry of Defence to make reparation for the damage sustained by the relatives of a civilian whom the serviceman had killed unlawfully.
30. The applicants relied in the domestic courts on the Protocol Additional of 8 June 1977 to the Geneva Conventions of 12 August 1949, relating to the Protection of Victims of International Armed Conflicts (Protocol I). The Protocol, which Italy ratified through Law no. 672 of 11 December 1985, contains, inter alia, the following provisions:
“1. In any armed conflict, the right of the Parties to the conflict to choose methods or means of warfare is not unlimited.
2. It is prohibited to employ weapons, projectiles and material and methods of warfare of a nature to cause superfluous injury or unnecessary suffering.
3. It is prohibited to employ methods or means of warfare which are intended, or may be expected, to cause widespread, long-term and severe damage to the natural environment.
...”
“In order to ensure respect for and protection of the civilian population and civilian objects, the Parties to the conflict shall at all times distinguish between the civilian population and combatants and between civilian objects and military objectives and accordingly shall direct their operations only against military objectives.”
“1. ’Attacks’ means acts of violence against the adversary, whether in offence or in defence.
2. The provisions of this Protocol with respect to attacks apply to all attacks in whatever territory conducted, including the national territory belonging to a Party to the conflict but under the control of an adverse Party.
3. The provisions of this section apply to any land, air or sea warfare which may affect the civilian population, individual civilians or civilian objects on land. They further apply to all attacks from the sea or from the air against objectives on land but do not otherwise affect the rules of international law applicable in armed conflict at sea or in the air.
4. The provisions of this section are additional to the rules concerning humanitarian protection contained in the Fourth Convention, particularly in Part II thereof, and in other international agreements binding upon the High Contracting Parties, as well as to other rules of international law relating to the protection of civilians and civilian objects on land, at sea or in the air against the effects of hostilities.”
“1. The civilian population and individual civilians shall enjoy general protection against dangers arising from military operations. To give effect to this protection, the following rules, which are additional to other applicable rules of international law, shall be observed in all circumstances.
2. The civilian population as such, as well as individual civilians, shall not be the object of attack. Acts or threats of violence the primary purpose of which is to spread terror among the civilian population are prohibited.
3. Civilians shall enjoy the protection afforded by this section, unless and for such time as they take a direct part in hostilities.
4. Indiscriminate attacks are prohibited. Indiscriminate attacks are:
(a) those which are not directed at a specific military objective;
(b) those which employ a method or means of combat which cannot be directed at a specific military objective; or
(c) those which employ a method or means of combat the effects of which cannot be limited as required by this Protocol;
and consequently, in each such case, are of a nature to strike military objectives and civilians or civilian objects without distinction.
5. Among others, the following types of attacks are to be considered as indiscriminate:
(a) an attack by bombardment by any methods or means which treats as a single military objective a number of clearly separated and distinct military objectives located in a city, town, village or other area containing a similar concentration of civilians or civilian objects;
and
(b) an attack which may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated.
6. Attacks against the civilian population or civilians by way of reprisals are prohibited.
7. The presence or movements of the civilian population or individual civilians shall not be used to render certain points or areas immune from military operations, in particular in attempts to shield military objectives from attacks or to shield, favour or impede military operations. The Parties to the conflict shall not direct the movement of the civilian population or individual civilians in order to attempt to shield military objectives from attacks or to shield military operations.
8. Any violation of these prohibitions shall not release the Parties to the conflict from their legal obligations with respect to the civilian population and civilians, including the obligation to take the precautionary measures provided for in Article 57.
...”
“1. Civilian objects shall not be the object of attack or of reprisals. Civilian objects are all objects which are not military objectives as defined in paragraph 2.
2. Attacks shall be limited strictly to military objectives. In so far as objects are concerned, military objectives are limited to those objects which by their nature, location, purpose or use make an effective contribution to military action and whose total or partial destruction, capture or neutralization, in the circumstances ruling at the time, offers a definite military advantage.
3. In case of doubt whether an object which is normally dedicated to civilian purposes, such as a place of worship, a house or other dwelling or a school, is being used to make an effective contribution to military action, it shall be presumed not to be so used.
...”
“1. In the conduct of military operations, constant care shall be taken to spare the civilian population, civilians and civilian objects.
2. With respect to attacks, the following precautions shall be taken:
(a) those who plan or decide upon an attack shall:
(i) do everything feasible to verify that the objectives to be attacked are neither civilians nor civilian objects and are not subject to special protection but are military objectives within the meaning of paragraph 2 of Article 52 and that it is not prohibited by the provisions of this Protocol to attack them;
(ii) take all feasible precautions in the choice of means and methods of attack with a view to avoiding, and in any event to minimizing, incidental loss or civilian life, injury to civilians and damage to civilian objects;
(iii) refrain from deciding to launch any attack which may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated;
(b) an attack shall be cancelled or suspended if it becomes apparent that the objective is not a military one or is subject to special protection or that the attack may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated;
(c) effective advance warning shall be given of attacks which may affect the civilian population, unless circumstances do not permit.
3. When a choice is possible between several military objectives for obtaining a similar military advantage, the objective to be selected shall be that the attack on which may be expected to cause the least danger to civilian lives and to civilian objects.
4. In the conduct of military operations at sea or in the air, each Party to the conflict shall, in conformity with its rights and duties under the rules of international law applicable in armed conflict, take all reasonable precautions to avoid losses of civilian lives and damage to civilian objects.
5. No provision of this Article may be construed as authorizing any attacks against the civilian population, civilians or civilian objects.
...”
“A Party to the conflict which violates the provisions of the Conventions or of this Protocol shall, if the case demands, be liable to pay compensation. It shall be responsible for all acts committed by persons forming part of its armed forces.”
31. The applicants also relied in the domestic courts on paragraph 5 of Article VIII of the London Convention of 19 June 1951 between the Parties to the North Atlantic Treaty regarding the Status of their Forces, which Italy ratified through Law no. 1335 of 1955.
Article I defines certain terms as follows:
“...
(d) ’sending State’ means the Contracting Party to which the force belongs;
(e) ’receiving State’ means the Contracting Party in the territory of which the force or civilian component is located, whether it be stationed there or passing in transit;
...”
Article VIII provides, inter alia:
“...
5. Claims (other than contractual claims and those to which paragraphs 6 or 7 of this Article apply) arising out of acts or omissions of members of a force or civilian component done in the performance of official duty, or out of any other act, omission or occurrence for which a force or civilian component is legally responsible, and causing damage in the territory of the receiving State to third parties, other than any of the Contracting Parties, shall be dealt with by the receiving State in accordance with the following provisions:
(a) Claims shall be filed, considered and settled or adjudicated in accordance with the laws and regulations of the receiving State with respect to claims arising from the activities of its own armed forces.
(b) The receiving State may settle any such claims, and payment of the amount agreed upon or determinated by adjudication shall be made by the receiving State in its currency.
(c) Such payment, whether made pursuant to a settlement or to adjudication of the case by a competent tribunal of the receiving State, or the final adjudication by such a tribunal denying payment, shall be binding and conclusive upon the Contracting Parties.
(d) Every claim paid by the receiving State shall be communicated to the sending States concerned together with full particulars and a proposed distribution in conformity with sub-paragraphs (e) (i), (ii) and (iii) below. In default of a reply within two months, the proposed distribution shall be regarded as accepted.
(e) The cost incurred in satisfying claims pursuant to the preceding sub-paragraphs and paragraph 2 of this Article shall be distributed between the Contracting Parties, as follows:
(i) Where one sending State alone is responsible, the amount awarded or adjudged shall be distributed in the proportion of 25 per cent chargeable to the receiving State and 75 per cent chargeable to the sending State.
(ii) Where more than one State is responsible for the damage, the amount awarded or adjudged shall be distributed equally among them: however, if the receiving State is not one of the States responsible, its contribution shall be half that of each of the sending States.
(iii) Where the damage was caused by the armed services of the Contracting Parties and it is not possible to attribute it specifically to one or more of those armed services, the amount awarded or adjudged shall be distributed equally among the Contracting Parties concerned: however, if the receiving State is not one of the States by whose armed services the damage was caused, its contribution shall be half that of each of the sending States concerned.
(iv) Every half-year, a statement of the sums paid by the receiving State in the course of the half-yearly period in respect of every case regarding which the proposed distribution on a percentage basis has been accepted, shall be sent to the sending States concerned, together with a request for reimbursement. Such reimbursement shall be made within the shortest possible time, in the currency of the receiving State.
(f) In cases where the application of the provisions of sub-paragraphs (b) and (e) of this paragraph would cause a Contracting Party serious hardship, it may request the North Atlantic Council to arrange a settlement of a different nature.
(g) A member of a force or civilian component shall not be subject to any proceedings for the enforcement of any judgment given against him in the receiving State in a matter arising from the performance of his official duties.
(h) Except in so far as sub-paragraph (e) of this paragraph applies to claims covered by paragraph 2 of this Article, the provisions of this paragraph shall not apply to any claim arising out of or in connexion with the navigation or operation of a ship or the loading, carriage, or discharge of a cargo, other than claims for death or personal injury to which paragraph 4 of this Article does not apply.
6. Claims against members of a force or civilian component arising out of tortious acts or omissions in the receiving State not done in the performance of official duty shall be dealt with in the following manner:
(b) The report shall be delivered to the authorities of the sending State, who shall then decide without delay whether they will offer an ex gratia payment, and if so, of what amount.
(c) If an offer of ex gratia payment is made, and accepted by the claimant in full satisfaction of his claim, the authorities of the sending State shall make the payment themselves and inform the authorities of the receiving State of their decision and of the sum paid.
(d) Nothing in this paragraph shall affect the jurisdiction of the courts of the receiving State to entertain an action against a member of a force or of a civilian component unless and until there has been payment in full satisfaction of the claim.
7. Claims arising out of the unauthorized use of any vehicle of the armed services of a sending State shall be dealt with in accordance with paragraph 6 of this Article, except in so far as the force or civilian component is legally responsible.
8. If a dispute arises as to whether a tortious act or omission of a member of a force or civilian component was done in the performance of official duty or as to whether the use of any vehicle of the armed services of a sending State was unauthorized, the question shall be submitted to an arbitrator appointed in accordance with paragraph 2 (b) of this Article, whose decision on this point shall be final and conclusive.
9. The sending State shall not claim immunity from the jurisdiction of the courts of the receiving State for members of a force or civilian component in respect of the civil jurisdiction of the courts of the receiving State except to the extent provided in paragraph 5 (g) of this Article.
10. The authorities of the sending State and of the receiving State shall co-operate in the procurement of evidence for a fair hearing and disposal of claims in regard to which the Contracting Parties are concerned.
...”
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-69198
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: CHAMBER
DATE: 2005
DOCNAME: CASE OF ASLANGIRAY AND OTHERS  v. TURKEY
IMPORTANCE: 4
CONCLUSION: Violation of P1-1;Not necessary to examine Art. 6-1;Pecuniary damage - financial award;Non-pecuniary damage - finding of violation sufficient
JUDGES: Nicolas Bratza
TEXT: 4. On 19 July 1993 the applicants brought separate actions before the Baskil Civil Court of First Instance against the National Water Board. They alleged that their plots of land had been illegally seized by the administration for dam construction without any payment being made and requested compensation in this respect.
5. On 2 December 1993 the Baskil Civil Court of First Instance held that the cases should be characterised as compensation claims arising from expropriation rather than compensation claims arising from the illegal seizure of the applicants’ land since a committee of experts had assessed the value of the land and this amount had been paid by the authorities to those who were indicated as the owners of the land in the Land Registry. The court ordered the administration to pay the applicants an amount of increased compensation, plus interest at the statutory rate, running from 1986, when the plots of lands were submerged in the waters of the dam.
6. On 6 October 1994 the Court of Cassation quashed the judgments of the first-instance court and held that the cases could not be characterised as compensation claims arising from expropriation. The applicants requested rectification of the decisions of the Court of Cassation.
7. On 7 March 1995 the Court of Cassation rectified its decisions, holding that the cases could be characterised as compensation claims arising from expropriation. It quashed the judgments of the first-instance court only in respect of the date from which the statutory rate of interest began to run from.
8. On 9 October 1997 the first-instance court abided by the ruling of the Court of Cassation. It accordingly ordered the administration to pay Ali Aslangiray, Fatma Özbilge and Gülsüm Özbilge 303,510,000 Turkish liras (TRL) (approximately 1,540 euros (EUR)), TRL 216,503,800 (approximately EUR 1,100) and TRL 424,914,000 (approximately EUR 2,155) respectively, plus interest at the statutory rate, running from 19 August 1993, the date on which the ownership of the property was transferred to the National Water Board. The National Water Board appealed.
9. On 17 March 1998 the Court of Cassation upheld the judgments of the Baskil Civil Court of First Instance.
10. On 2 April 1998 the decisions of the Court of Cassation were served on the applicants.
11. On 11 November 1998 the administration paid the applicants the amounts due together with interest.
12. The relevant domestic law and practice are set out in the case of Akkuş v. Turkey (judgment of 9 July 1997, Reports of Judgments and Decisions 1997IV, §§ 13-16).


ITEMID: 001-105699
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: CHAMBER
DATE: 2011
DOCNAME: CASE OF BULDAKOV v. RUSSIA
IMPORTANCE: 3
CONCLUSION: Remainder inadmissible;No violation of Art. 6-1;Violation of Art. 34;Pecuniary damage - claim dismissed;Non-pecuniary damage - award
JUDGES: Anatoly Kovler;Elisabeth Steiner;Julia Laffranque;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Peer Lorenzen
TEXT: 4. The applicant was born in 1975 and is currently serving a prison sentence in Chernorechenskiy in the Komi Republic.
5. On 25 November 2001 the applicant was arrested in connection with a series of gang robberies that had taken place from September to November 2001 in a number of St Petersburg massage parlours.
6. On 27 November 2001 the authorities opened a criminal case and drew up a record of the applicant’s arrest.
7. On 28 November 2001 the applicant was charged with robbery and on the same day he was remanded in detention by the decision of a prosecutor.
8. On an unspecified date in 2001 and later, in 2003, the applicant asked to be tried by a jury. Both his requests were dismissed.
9. On 13 June 2002 the applicant was newly charged with banditry and organised robbery.
10. On 15 October 2002 the charges against the applicant were finalised, and now also included charges of organisation and management of a criminal gang, ten organised robberies with further aggravating factors, and illegal carrying and storage of arms.
11. On 17 October 2002 the pre-trial investigation was completed, following which the applicant and his counsel spent until 21 November 2002 studying the case file.
12. On 27 November 2002 the case was referred to the St Petersburg City Court (“the City Court”).
13. On 10 December 2002 the City Court fixed a preliminary hearing for 12 March 2003. On that date the hearing was postponed to 25 March 2003, according to the applicant, on account of the prosecutor’s failure to appear.
14. At the hearing of 25 March 2003 the applicant filed a number of requests for the striking-out of some of the evidence as inadmissible, the summoning of witnesses, the dropping of the banditry charge, the transfer of the case to a district court, and the selection of a non-custodial measure of restraint. These requests were dismissed at the next hearing on 1 April 2003, which was further adjourned following a decision to summon the victims and witnesses.
15. At the hearings that took place on 29 April, 17 June, 22 August, 1 October and 20 November 2003 the trial court questioned the victims and witnesses in the case.
16. The next two hearings did not take place on account of the unavailability or illness of counsel.
17. The hearings continued on 22 January, 5, 11 and 24 February, and10 and 11 March 2004.
18. By a judgment of 25 March 2004 the City Court convicted the applicant of aggravated robbery and sentenced him to thirteen years’ imprisonment.
19. The applicant appealed and his grounds of appeal and two supplements to it were returned to him for insufficient reasoning. The new grounds of appeal and a request for the extension of the time-limit for appeal were also rejected for the same reasons on 24 May 2004. That decision was overturned on appeal by the Supreme Court of Russia on 16 September 2004, when the time-limit in question was extended.
20. On 27 January 2005 the Supreme Court of Russia modified the judgment in the part concerning the legal classification of the criminal acts and upheld the remainder of the conviction.
21. On 28 November 2001 the prosecutor of the Tsentralnyy District of St Petersburg authorised the applicant’s pre-trial detention in accordance with the old Code of Criminal Procedure. This decision was upheld in a final decision of the City Court of 2 July 2002.
22. On an unspecified date the prosecutor extended the applicant’s detention until 27 August 2002.
23. On 20 August 2002 the Kuybyshevskiy District Court of St Petersburg, citing the gravity of the charges against the applicant, extended his detention until 27 November 2002. On 15 October 2002 the City Court upheld the extension order on appeal. However, on 13 October 2004 the Presidium of the City Court quashed the decisions of the lower courts by way of supervisory review on the ground that the applicant had not appeared at the hearing, and ordered the re-examination of his detention in respect of the above-mentioned period.
24. On 9 November 2004 the Kuybyshevskiy District Court discontinued the examination of the request to extend the applicant’s detention since on 25 March 2004 the applicant had been convicted. On 18 January 2005 the City Court set aside this decision on appeal and remitted the matter for fresh consideration. On 8 February 2005 the Kuybyshevskiy District Court approved the extension of the applicant’s detention from 27 August to 27 November 2002 and on 13 April 2005 the City Court upheld that decision.
25. On 10 December 2002 the City Court held that the measure of restraint applied to the applicant should remain unchanged. A copy of that decision was made available to the applicant on 14 February 2003, that is, after the expiry of the statutory time-limit for lodging an appeal. In March 2005 the applicant sought to have the time-limit for introducing his appeal extended, but on 25 August 2005 the Supreme Court, at final instance, dismissed his request since by that time his conviction had become final.
26. On 13 May, 22 August, 20 November 2003 and 24 February 2004 the City Court extended the applicant’s detention until 27 August and 27 November 2003, and 27 February and 27 May 2004, respectively. On 7 August, 5 November 2003 and 16 February and 21 April 2004 the Supreme Court upheld the above extension orders on appeal.
27. On 29 July 2005 the applicant submitted to the special registry office (отдел специального учета) of remand centre SIZO-1 of St Petersburg and the Leningrad Region a completed application form with enclosures of 910 pages addressed to the Court. On the same day the mailing was registered by the special registry office and handed over to the dispatch office. However, the mailing was never dispatched.
28. The applicant brought this issue before the prosecutor’s office of St Petersburg on 9 March 2006. Following an inquiry, the town prosecutor established that the mailing had never been dispatched and had subsequently been lost. The prosecutor issued a special statement addressed to the head of the SIZO-1 remand centre following which, according to the Government, the official responsible was disciplined. The Government further submitted that the applicant had received two new application forms from the officials of the prison system to compensate him for the loss of his mailing.
29. In 2009 the applicant brought proceedings against the remand centre and the federal penitentiary agency seeking compensation for non-pecuniary damage sustained as result of the loss of the mailing. By a judgment of 23 June 2009 the Kalininskiy District Court of St Petersburg dismissed the applicant’s claim, finding that he had not been irreversibly deprived of the opportunity to lodge a complaint with the Court. That judgment was upheld on appeal by the City Court on 15 April 2010.
30. Federal Law no. 68-ФЗ “On Compensation for Violation of the Right to a Trial within a Reasonable Time or the Right to Enforcement of a Judgment within a Reasonable Time” of 30 April 2010 (in force from 4 May 2010) provides that in the case of a violation of the right to trial within a reasonable time or of the right to enforcement of a final judgment, Russian citizens are entitled to seek compensation for non-pecuniary damage. Federal Law no. 69-ФЗ, adopted on the same day, introduced the pertinent changes into Russian legislation.
31. The transitional arrangements (section 6.2 of Federal Law no. 68ФЗ) provided that everyone who had a pending application before the European Court of Human Rights concerning a complaint of the type described in the law had six months to lodge the complaint with the domestic courts.
VIOLATED_ARTICLES: 34
NON_VIOLATED_ARTICLES: 6
NON_VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-91990
LANGUAGEISOCODE: ENG
RESPONDENT: POL
BRANCH: CHAMBER
DATE: 2009
DOCNAME: CASE OF WIKTORKO v. POLAND
IMPORTANCE: 3
CONCLUSION: Violation of Art. 3 (substantive aspect);Violation of Art. 3 (procedural aspect);Remainder inadmissible;Non-pecuniary damage - award
JUDGES: David Thór Björgvinsson;Giovanni Bonello;Lech Garlicki;Ledi Bianku;Mihai Poalelungi;Nicolas Bratza
TEXT: 5. The applicant was born in 1957 and lives in Olsztyn.
6. On the evening of 27 December 1999 the applicant met with her friend.
7. Subsequently the applicant took a taxi to go home and refused to pay the allegedly exorbitant fare without obtaining a proper bill. As a result, the driver did not let the applicant out of the taxi in front of her house but took her to a soberingup centre in Olsztyn. The applicant called the police from the taxi as she felt threatened by the driver’s behaviour. So did the driver as regards the applicant’s behaviour.
8. Subsequently, the applicant was detained in the soberingup centre. She refused to undergo a breathalyser test. The applicant submitted that she had had two beers. The Government maintained that she had been in a state of “average intoxication”.
9. The applicant submitted that the staff of the centre had insulted her and that she had been brutally manhandled and beaten. She had also been forcibly stripped naked by two men and a woman. Afterwards, she had been forcibly put into a disposable gown.
10. The Government submitted that it was the applicant who had been aggressive towards the staff and had verbally insulted them. They had therefore had no choice but to undress her by force as she had refused to undress herself and had subsequently resisted their legitimate efforts to dress her in a disposable gown.
11. They further argued that she had had to be placed in restraining belts because after being put to bed she had been kicking the doors of the room and screaming abuse, waking other patients.
12. The parties’ submissions are concordant as to the fact that the applicant was subsequently restrained by belts, tied to a bed and locked in a cell until the morning of 28 December 1999, when she was released.
The applicant submitted that she had remained in the cell, restrained by the belts, for approximately ten hours. The Government did not challenge this submission.
13. On 29 December 1999 the applicant obtained a medical certificate concerning her condition.
The relevant part of the certificate read:
A bloody bruise on the left hip, at the front, of approximately 3 cm in diameter, abrasion at the wrist at the elbow side; mobility and rotation of the shoulder limited (unclear whether passive or active movements concerned); the [applicant] complained of pain in her jaw at the left side; the jaw at that side swollen.
14. Shortly afterwards the applicant filed a complaint against the staff of the centre with the head of the district police in Olsztyn. She submitted that she had not been intoxicated, that nothing in her conduct had justified the decision to deprive her of her liberty and that she had been brutally manhandled and undressed by the staff of the centre.
15. On 21 January 2000 the head of the district police refused to institute an investigation in her case. The grounds of the decision read:
On 29.12.1999 Ms A. Wiktorko complained to the Town Police Station that on 27/28 December a taxi driver and the staff of the sobering-up centre had used physical force against her and insulted her. In her formal complaint that a criminal offence had been committed, which she submitted on 4 January 2000, she [explained] that on 27 December 1999 at 11 p.m. approximately a driver of a taxi No. [...] had first insulted her verbally and afterwards had taken her to the sobering-up centre where she had been detained against her will and physical force, resulting in bruises and scratches, had been used against her by the staff. A number of persons were requested to provide information, but no one confirmed the applicant’s allegations. The taxi driver stated that Ms Wiktorko had been taken to the sobering-up centre because she had not wanted to pay the fare or to leave the taxi and that she had herself agreed to be taken there; while she could have left the taxi at any time; she was detained at the centre by the police, not by the taxi driver himself as she says; furthermore she did not want to have a breathalyser test but when she was already in the centre she did not want to undress herself and when she was put in the room for the patients she was hitting the door with her hands and other parts of her body inflicting injuries on herself so that restraining belts had to be used for fear that her life and health might be endangered.”
On 31 January 2000 the Olsztyn district prosecutor upheld this decision.
16. On 8 February 2000 the applicant appealed. In particular, she reiterated that her detention had been completely unjustified as she had not been intoxicated. She had had two beers on the evening of 27 December 1999 which by no standards could be described as intoxication, still less as intoxication justifying deprivation of liberty in a soberingup centre. She had been illtreated by the staff of the centre after her arrest, but the decision of 21 January 2000 had obviously failed to elucidate the facts of the case. She submitted that during her detention she had been stripped naked. She stressed that the police had failed to grant her access to the file concerning her detention and that the investigation had been superficial.
17. On 21 February 2000 the head of the district police in Olsztyn decided to investigate the applicant’s allegations.
18. On 17 March 2000 an expert prepared an opinion as to the applicant’s health upon her release on the basis of the file of the investigation. The opinion reiterated the findings of the certificate of 29 December 1999 and stated that the injuries could have been sustained both as a result of the use of force against the applicant or of her behaviour after she had been undressed and put into the cell.
19. The investigation was subsequently discontinued by the police and on 19 April 2000 the district prosecutor confirmed this decision. The written grounds of the decision read:
“During the investigation factual findings were made, witnesses were questioned, the [applicant’s] medical records were examined and a medical expert was appointed with a view to establishing the injuries and circumstances in which they might have been sustained. It was established on the basis of this material that on 27 December 1999 Anna Wiktorko, having drunk alcohol and having refused to pay for the taxi, had been taken by the taxi-driver to [the sobering-up centre]. Afterwards she was taken, in the presence of a police patrol, to the building of the centre. Once she was inside, a decision was taken to detain her in the centre, regard being had to her behaviour which was vulgar and offensive towards those who were present there. As she did not want to comply with the regulations in force by taking a breathalyser test and by voluntarily undressing and changing into a gown, the staff used force against her in order to make her change her clothes and put her in a room for detainees. As she continued to be aggressive and to destroy property and could have harmed herself, she was put in restraining belts so that she could calm down.
The applicant’s complaints were not confirmed by the witnesses. Her behaviour was reprehensible and it was necessary to put her in the sobering-up centre. It has not been established that physical force was used against her over and above what was necessary to calm her down. Hence, as there was no indication that a criminal offence had been committed the investigation has to be discontinued.”
20. The applicant, represented by a lawyer, appealed to the regional prosecutor. She submitted that she had not been intoxicated and that the actions of the employees of the centre had infringed her personal rights, her dignity and her bodily integrity. She also submitted that her procedural rights had been breached in that the police had failed to inform her representative about any of the investigative measures that had been taken during the proceedings. It was also submitted that during the investigation the applicant should have had an opportunity to confront the employees of the centre.
21. On 7 June 2000 the Olsztyn regional prosecutor, having regard to the applicant’s procedural arguments, quashed the contested decision of 19 April 2000. He noted that there had been significant discrepancies between the applicant’s testimony and that given by other persons, which had to be elucidated.
22. On 2 August 2000 the Olsztyn-North district prosecutor discontinued the proceedings, finding that no criminal offence had been committed. The written grounds of the decision read:
“In the evening of 27 December 1999 [the applicant] called a taxi [...] After the trip a disagreement as to the amount of the fare to be paid arose between her and the driver. As the parties disagreed, [the driver] decided to solve the problem with the assistance of the police. After he had called the dispatch centre [of the taxi company], he drove to the vicinity of the sobering-up centre and waited for the police to come. They then waited for the patrol to come; at that time the driver entered the building of the centre, while the applicant stood by the taxi and also called the police from her mobile phone.
It is noted that the driver did not commit the offence of unlawful deprivation of property against the applicant, given that at that time both parties wanted to solve the problem with the assistance of the police; it is also noted that at that time the applicant could simply have walked away or used her phone.
After police officers A.R. and W.K. arrived at the scene, they tried to obtain a friendly resolution of the situation, but to no avail. Having regard to the vulgar and aggressive behaviour of the applicant, who smelled of alcohol, the officers decided that she should be detained in the sobering-up centre, where she refused to take a breathalyser test. Hence, the doctor on duty decided, on the basis of a general examination, that the applicant was in a state of intoxication justifying her detention for up to twelve hours.
Staff member M.P [a woman] subsequently tried to make the applicant change into a disposable garment.
As the applicant offered stubborn resistance, M.P. requested other members of staff, L. Z. and T.P. [men] to help her; the applicant was dressed in a gown with their assistance and put into the room for intoxicated persons.
The applicant continued to be aggressive; therefore physical force against her was used and she was put in restraining belts.
It transpires from the provisions governing the organisation of the sobering-up centres and job descriptions of the members of staff, the staff acted in compliance with law on the basis of the applicable legal provisions and there is therefore no basis for a well-founded suspicion that a criminal offence of unlawful deprivation of liberty or coercion had been committed.
On the basis of section 41 of the Law on Education ... in Sobriety and the Fight against Alcoholism and sections 19 and 20 of the ... ordinance a bill for PLN 250 was drawn for the applicant to pay for the costs of her detention.
It should be unequivocally stated that the conduct of the staff toward the applicant was lawful.
During the investigations all persons involved in the applicant’s arrest and detention were questioned. The ample evidence gathered in the case did not give rise to a suspicion that a criminal offence had been committed.
Subsequently, the decision reiterated the findings of the medical report (see paragraph 3 above). The decision further read:
In her submissions the applicant complained that the staff of the centre had breached her dignity and ... Having in mind that the injuries which the applicant suffered and the insults can be examined in proceedings instituted by a private bill of indictment, it is open to the applicant to bring such a bill within 14 days from the service of the present decision.
23. The applicant appealed, reiterating the arguments she had submitted in her previous appeal. She also submitted that she had been humiliated by the staff of the centre as she had been forcibly undressed and tied to a bed with restraining belts until the morning of 28 December 1999. This had made it impossible for her to go to the toilet.
24. On 25 October 2000 the Olsztyn Regional Court upheld the decision to discontinue the proceedings. In its decision, which consisted of twenty lines, the court observed that the evidence gathered in the case had led it to the logical conclusion that the applicant had been intoxicated and that therefore her detention in the sobering-up centre and the use of force against her had been justified.
25. The Law on Education in Sobriety and the Fight against Alcoholism (Ustawa o wychowaniu w trzeźwosci i przeciwdziałaniu alkoholizmowi) provides for measures which may be applied in respect of intoxicated persons. Sections 39-40 set out measures which may be applied to such persons.
26. Pursuant to section 39 of the Law, soberingup centres are to be set up and managed by the authorities of municipalities with more than 50,000 inhabitants. Section 40 of the Law, as applicable at the relevant time, provided, in so far as relevant:
“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 soberingup centre or a public health care facility, 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. ...”
27. The Ordinance of the Minister of Health and Social Welfare of 23 October 1996 on the procedure for dealing with intoxicated persons, the organisation of soberingup centres and the scope of health care and rules on assessing the fees connected with admittance to and stays in soberingup centres (Rozporządzenie Ministra Zdrowia i Opieki Społecznej w sprawie trybu doprowadzania osób w stanie nietrzeźwości organizacji izb wytrzeźwień i zakresu opiekli zdrowotnej oraz zasad ustalania opłat związanych z doprowadzeniem i pobytem w izbie wytrzeźwień) set out detailed rules relating to detention in a sobering-up centre.
28. Section 9 of the Ordinance provided, in so far as relevant:
“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 placement in a sobering-up centre.”
Its paragraph 13 (1) provided:
“A replacement garment shall be issued to all detained persons.”
29. Section 16 of the Ordinance states that direct coercion may be applied in accordance with the rules laid down in section 18 of the 1994 Protection of Mental Health Act, which provides in particular that direct coercion can consist of immobilisation, among other methods. Section 16 of that Act further refers to the Ordinance of the Minister for Health and Social Welfare of 23 August 1995 on the form of application of direct coercion (w sprawie sposobu stosowania przymusu bezpośredniego), which determines the manner in which direct coercion may be applied. The latter ordinance provides, in so far as relevant:
“9 (2). A doctor shall recommend application of direct coercion in the form of immobilisation or isolation for a period of no longer than four hours. If necessary, the doctor, after personal examination of the patient, may extend the use of immobilisation for subsequent periods of six hours.
13. A nurse on duty shall check the state of the immobilised or isolated person no less frequently then every 15 minutes, including when the person is asleep. The state of the person shall be recorded on the [patient’s] card without delay.”
VIOLATED_ARTICLES: 3