ITEMID: 001-5375
LANGUAGEISOCODE: ENG
RESPONDENT: DEU
BRANCH: ADMISSIBILITY
DATE: 2000
DOCNAME: DANKOVSKY v. GERMANY
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Antonio Pastor Ridruejo
TEXT: The applicant, born in 1954, is a German national and resident in Saarbrücken. When lodging his application, he was serving a prison sentence in the Stuttgart-Stammheim Prison. In the proceedings before the Court, he is represented by Mr R. Neumann, a lawyer practising in Tübingen. The respondent Government are represented by Mr K. Stoltenberg, Ministerialdirigent.
A.
The facts of the case, as submitted by the parties, may be summarised as follows.
In 1993 criminal proceedings were instituted against the applicant and others on the suspicion of inter alia theft. In these proceedings, the applicant was assisted by a court-appointed defence counsel.
The trial against the applicant and the two co-accused, Mr C. and Mr S. opened before the Tübingen Regional Court (Landgericht) on 20 September 1994. In the course of the trial, the applicant repeatedly applied to the presiding judge to be allowed to put personally questions to the co-accused S. This was refused. The applicant’s defence counsel did not put the questions concerned.
On 16 December 1994 the Tübingen Regional Court convicted the applicant of four counts of theft. Taking into account the applicant’s previous sentences imposed by the Zweibrücken District Court (Amtsgericht) in January 1992 and the Zweibrücken Regional Court in March 1992, respectively, the Regional Court fixed a cumulative sentence of four years’ imprisonment. Moreover, he was convicted of kidnapping (räuberischer Menschenraub) and extortion with violence (räuberische Erpressung) as well as of theft on twelve counts and, in respect of these offences, a cumulative sentence of ten years’ imprisonment was imposed. He was acquitted of the remainder of charges.
The Regional Court convicted the co-accused Mr C. of kidnapping and extortion with violence and, taking into account his previous prison sentence, it fixed a cumulative sentence of ten years and six months’ imprisonment and confirmed his preventive detention. Mr S. was convicted of kidnapping and extortion with violence on two counts as well as of eight counts of theft, and he was sentenced to eight years’ imprisonment.
In its judgment, insofar as it concerned offences involving the applicant, the Regional Court found that in March/April 1992 the applicant and Mr S. had committed several burglaries and, together with Mr C., they had taken part in a bank robbery. Moreover, between February and July 1993, the applicant, while serving an earlier prison sentence in an open prison, had committed further counts of burglaries with Mr S. and other persons, including Mr A., who had meanwhile been convicted.
The Regional Court noted that the accused Mr S. had fully confessed his participation in the offences in question. The applicant had, to a large extent, confessed his participation in the burglaries. These statements were confirmed in particular by the statements made by the other participants in the offences in question as well as by the statements of the victims as to the stolen goods.
As regards the offences of kidnapping and extortion with violence, the Regional Court found that the applicant had denied any participation in bank robberies, which had taken place on 8 and 16 April 1992, respectively.
The Regional Court found that the statements made by the co-accused Mr S. on the bank robbery of 16 April 1992, including his indications as to the participation of the applicant and the co-accused Mr C., were credible. In this respect, the Regional Court considered that several witnesses had confirmed Mr S.’s account of details of the robbery.
The Regional Court rejected the applicant’s and MrC.’s defence that Mr S. had made false statements about his and their participation in this offence. The Regional Court noted their allegation that Mr S. himself had intended to obtain a long term of imprisonment or that he had wanted to cause sensation and that he had wanted to revenge himself on them. The Regional Court considered that these arguments were far-fetched. In particular, Mr S.’s own participation in the offence was proven by his detailed knowledge about the robbery. Moreover, Mr S. had stated a valid reason for his confession, namely the intention to terminate his criminal activities and to start a new life following therapy in the course of his detention after conviction. From the angle of psychiatric evidence, the Regional Court found no indication that, due to mental reasons, Mr S. had wrongly accused himself and the co-accused. According to the Regional Court, Mr S.’s disappointment and annoyance about bad treatment and insufficient pay by the applicant might have contributed to his open confession. However, there was nothing to show that he had therefore wrongly accused the applicant of a serious criminal offence. Moreover, there was no explanation that, for such a reason, Mr S. would wrongly accuse himself and Mr C., who in the past had been his friend.
In assessing the credibility of Mr C., the Regional Court had also regard to the general context of statements made in the course of the investigations against the persons involved in the offences in question. It noted that, following the full confession of Mr S. at an early stage, the applicant and the other accused, who had been prosecuted separately, had confessed their participation in the burglaries. Furthermore, an accomplice, who had been prosecuted separately, had stated that the applicant had told him in the course of a telephone conversation in May or June 1992 that he had robbed a bank. The Regional Court noted that the applicant had admitted the contents of this conversation, pretending that it had been a joke. Further statements made by a Mr M. on the weapon used in the course of the robbery as well as statements made by witnesses on the circumstances of the bank robbery confirmed Mr S.’s deposition. The applicant’s and Mr C.’s affirmations that they had been elsewhere at the relevant time were contradictory and inconclusive. The witnesses named by them had not confirmed their alleged alibi.
The Regional Court dismissed the applicant’s request to hear Mr A., one of the accomplices having been convicted in separate proceedings, on the question that the applicant had never talked about having been with the other accused after the bank robbery. The Regional Court considered that this issue was irrelevant, as the circumstance that the applicant had not told others about his participation in the offence could not prove his innocence.
As regards the second bank robbery of 8 April 1992, the Regional Court found that the statements of Mr S. were credible as far as his own participation in the offence was concerned. However, as regards his accusation of a participation of the applicant and Mr C., his statements, though plausible, were, unlike in the other case, not corroborated by any other evidence. The Regional Court therefore acquitted the applicant and Mr C. of the charges in respect of the bank robbery of 8 April 1992.
On 30 January 1996 the Federal Court of Justice (Bundesgerichtshof), upon the applicant’s appeal on points of law (Revision), quashed the Regional Court’s judgment as far as the fixing of a cumulative sentence of ten years’ imprisonment was concerned, and referred this matter back to the Regional Court. The remainder of the appeal was dismissed.
The Federal Court of Justice found in particular that the Regional Court had not been required to stay the criminal proceedings and to refer to the Federal Constitutional Court the question concerning the constitutionality of section 240(2), second sentence, of the German Code of Criminal Procedure (Strafprozessordnung), excluding the direct questioning (direkte Befragung) of an accused by a co-accused.
According to the Federal Court of Justice, the decisions of the Presiding Judge on this matter could not be objected to from a procedural point of view. Moreover, in the circumstances of the present case, the applicant, as conceded by him, could have availed himself of the opportunity to have his questions to the co-accused Mr S. put by the Presiding Judge. Having regard to Article 6 § 3 (d) of the Convention, the Federal Court of Justice considered that the right to examine or have examined witnesses against him was a procedural right of the defence. However, it was the applicant’s own submission that his defence counsel had not wished to put questions to Mr S.
As regards the fixing of the sentence of 10 years’ imprisonment, the Federal Court of Justice found that the Regional Court’s reasoning did not show that it had considered the cumulative effect of 14 years’ imprisonment appropriate.
On 21 August 1996 the Federal Constitutional Court (Bundesverfassungs-gericht) refused to entertain the applicant's constitutional complaint (Verfassungsbeschwerde) about his conviction by the Regional Court, as confirmed by the Federal Court of Justice.
The Federal Constitutional Court considered that the complaint did not raise any fundamental questions of constitutional law and that the refusal of a decision on the merits did not cause the applicant any particularly serious disadvantage.
As regards the main issue raised by the applicant, the Federal Constitutional Court found that section 240(2), second sentence, of the Code of Criminal Procedure was not unconstitutional. This provision did not affect the right of an accused to a fair trial. In this respect, the Federal Constitutional Court recalled that in a fair trial an accused should not be the object of proceedings, but be in a position actively to participate in the proceedings in order to safeguard his rights. Section 240(2), second sentence, did not limit the contents of the right of the defence to examine a co-accused. In the interest of the proper conduct of the trial, the right to put questions to a co-accused was merely limited to an indirect questioning, i.e. the right to have a co-accused examined by the defence counsel or by the presiding judge. In these circumstances, there was no indication of a breach of the right to a fair trial.
The decision was served on 9 September 1996.
B. Relevant domestic law

Section 240 of the Code of Criminal Procedure provides as follows:
“1. Upon request, the presiding judge shall permit the associate judges to address questions to the accused, to witnesses and to experts.
2. The presiding judge shall permit the public prosecutor’s office, the accused and the defence counsel, as well as the lay judges, to do the same. Direct questioning of an accused by a co-accused is not permitted.”


ITEMID: 001-58067
LANGUAGEISOCODE: ENG
RESPONDENT: CHE
BRANCH: CHAMBER
DATE: 1996
DOCNAME: CASE OF ANKERL v. SWITZERLAND
IMPORTANCE: 3
CONCLUSION: Preliminary objection rejected (non-exhaustion of domestic remedies);No violation of Art. 6-1;Not necessary to examine Art. 14+6-1
JUDGES: John Freeland
TEXT: 9. In 1978 Mr Guy Ankerl and his wife moved into a flat on the second floor of no. 3, rue Saint-Léger, Geneva. He subleased the flat from a property-management company, Régie Immobilière SA ("Régie Immobilière"), itself the tenant of a property company, SI Chrysanthemum SA ("Chrysanthemum"), the owner of the building.
10. In the autumn of 1985 Mr Ruffieux became Chrysanthemum’s main shareholder.
11. On 14 November 1986 the property-management company Régie Naef SA ("Naef"), which managed the building in which the flat in issue was located, informed the applicant that renovation and building work was going to be carried out on the block.
12. In a letter of 8 May 1987 Naef gave Régie Immobilière - which was in liquidation - notice to quit the flat with effect from 29 February 1988, the date of expiry of the lease, and requested them to terminate the subtenancy agreement with Mr Ankerl.
13. It would appear that Régie Immobilière asked Naef to collect the rent direct from Mr Ankerl. On 14 July 1987 Naef allegedly sent Mr Ankerl receipts relating to the payment of rent from April to July of that year and - what is denied by the applicant - specified that in collecting the sums in question they were not recognising the existence of any direct legal relationship between Mr Ankerl and Chrysanthemum.
14. In a registered letter of 21 July 1987 Régie Immobilière informed Mr Ankerl that they were terminating the subtenancy agreement with effect from its expiry. The applicant then applied to the Rents and Leases Conciliation Board for an extension of the agreement. No settlement having been reached, he applied to the Rents and Leases Tribunal but subsequently withdrew the application.
15. From February 1988 onwards the management of the block was taken over by the GPR Degenève SA agency ("GPR Degenève"). The latter notified the applicant of their bank account number. In an unanswered letter of 29 February 1988 Mr Ankerl confirmed to the agency that he would in future pay the rent into that account. He maintains that he did so each month from March 1988 to August 1991, taking care to write "rent" on the payment advice slips, without meeting any objection.
16. On 22 April 1988 the applicant and his wife had an interview - the terms of which are disputed – with Mr Linder, the director of GPR Degenève (see paragraph 18 below).
17. On 15 November 1988 Chrysanthemum brought an action for possession in the Canton of Geneva Court of First Instance, alleging that the applicant was occupying the premises unlawfully since his subtenancy agreement had been terminated.
Mr Ankerl argued that the court had no jurisdiction ratione materiae, maintaining that he had an orally agreed lease from the plaintiff.
The court thus had to determine whether the conduct of the protagonists amounted to an agreement to enter into a lease after the termination of the subtenancy.
18. The court held a hearing on 19 May 1989. It heard Mr Linder (GPR Degenève), Mr Veuillet (Naef) and Mrs Ankerl; Mr Ruffieux (Chrysanthemum) and the applicant also gave evidence. Only the first two were heard as witnesses on oath.
The transcript of the testimony reads as follows:
"...
1. Mr Jean-Gabriel Linder ...
When I resumed [the management of the building in March 1988], Mr Ankerl was occupying the premises but he had no written or oral lease or even a tacit one.
It is true that I had an interview with Mr Ankerl on my own initiative ... I wanted to know what Mr Ankerl’s position was. I made it clear to him that in my view he did not have a lease.
Mr Ankerl said that he very much wished to remain in the flat on sentimental grounds, having, so he said, written a book there. He may have told me that he had earlier supposedly been granted an oral lease, but I cannot state that with certainty. At all events, Mr Ankerl did not ask me to have a lease drawn up for him.
At the end of the interview Mr Ankerl suggested to me that he pay a higher rent in order to be able to stay in the flat. I suppose that implies that he was asking to be given a lease.
I told the defendant that I would pass on his request to the landlord. I told him clearly, both at the beginning and at the end of the interview, that I could not take a decision myself.
I consequently informed the landlord of the conversation I have just described. He told me that he did not wish to proceed in the matter and he did not give me the reasons.
I did not myself communicate the shareholder’s position to Mr Ankerl but, on the other hand, I did send the file to our lawyer, who must have informed him of the shareholder’s position.
My office staff must, it would seem, have communicated our account number to Mr Ankerl when we took over from Naef.
...
I heard about an agreement that had earlier been made between Naef and Mr Ankerl to the effect that Mr Ankerl should pay the rent direct to Naef.
2. Mr Dominique Veuillet ...
I have worked for Naef since 1 March 1983.
...
We knew that Mr Ankerl was in de facto occupation of the premises ...
... In 1986 or 1987 Mr Ankerl came to see me and told me that his position vis-à-vis Régie Immobilière was a rather special one. I cannot remember now the exact reasons. The defendant asked that we should draw up a lease in his name.
At the same time Régie Immobilière had asked us to collect the rent direct from Mr Ankerl ... I myself handed the file over to another property-management company on 31 December 1987, and at that time, as far as we were concerned, Mr Ankerl’s position remained as we had described in our letter of 14 July 1987 ...
It is true that on 14 November 1986 we had informed Mr Ankerl about the proposed works in the building. That was because we could not ignore his presence in the building.
...
3. Mrs Méryl Ankerl ...
I was present at the interview with Mr Linder in April 1988. Mr Linder asked us what our intentions were regarding this flat and we told him that we wanted to stay in it. He then explained to us that the building was going to be made higher and asked whether the works would not inconvenience us. We replied that the works might perhaps inconvenience us but that we would put up with it since we wanted to stay. Mr Linder added that at all events the process would be a long one, because the architect’s plans had not been approved by the Public Works Department. He also told us that during the building work we could occupy another flat in the block and that after the work was completed we could occupy a newly built flat at the top of the house. Or else we could move back into our second-floor flat.
When we left, Mr Linder told us that he would keep us informed. When we came out we were really reassured and optimistic.
Mr Linder never asked us to look for a flat elsewhere and he did not indicate that we had to leave within a given time.
I cannot remember if Mr Linder said that he was going to consult the landlord. I myself had the impression that he had some freedom of action.
Mr Ruffieux: I have myself been the director of the plaintiffs since October 1985. I have never set eyes on Mr Ankerl until today. I once replied to a letter he had sent me asking for an interview and I told him that his case was being dealt with by Naef’s legal department.
... It is true that I told Mr Linder that I refused to give Mr Ankerl a lease. We had never accepted that Mr Ankerl had a tenancy and I did not wish us to agree to it. I knew from the beginning that Mr Ankerl was occupying the premises. He is up to date with the rent.
I would not have been opposed to a settlement at the outset but relations with Mr Ankerl have become difficult. I have already allowed Mr Ankerl four years.
Mr Ankerl: When I concluded the lease with Régie Immobilière, I did not realise that it was a subtenancy. I had consulted a lawyer before signing it.
Mr Ruffieux says today that it is not easy to get on with me, but he said before that he wanted us out because he wanted to renovate his building."
19. On 12 October 1989 the court held that there was no lease agreement between the parties and ordered Mr Ankerl to move all property and persons from the flat and restore it to the plaintiffs in good condition. The judgment reads as follows:
"...
Mr Veuillet, an employee of [Naef], told the Court that the tenant, Régie Immobilière, had asked Naef to collect the rent direct from Mr Ankerl.
This arrangement was accepted, the payments being received as an indemnity for unlawful occupation, as appears from a letter of 14 July 1987 ...
On 20 January 1988 the new management, the GPR Degenève SA agency, wrote to Régie Immobilière SA, asking that in future the company should pay the indemnity for Mr Ankerl’s unlawful occupation to their own office.
Mr Linder, an employee of the new management, told the Court that he had had an interview with Mr Ankerl and had made it clear to him that in his view Mr Ankerl did not have a lease.
Mr Ankerl, he said, implicitly requested that a lease should be drawn up, to which Mr Linder said he had replied that it was not for him to decide.
Mr Ruffieux, the director and shareholder of the plaintiffs, told the Court that he had never agreed, and did not wish to agree, to enter into a lease with the defendant.
However, ... Mr Ankerl had been supplied personally with GPR Degenève’s account number and wrote to that company on 29 February 1988 to inform them that in future he would pay the rent into their account ...
That letter does not appear to have been answered, except that, three months later, the lawyer instructed by the landlord wrote to enquire when Mr Ankerl would be leaving.
The defendant’s wife - who was present at her husband’s interview with Mr Linder – recalled from that interview that the property-management company had been contemplating offering them another flat in the building for the duration of the works, and that when they had left Mr Linder, the couple had had every reason to be reassured, seeing that they were not being asked to leave the premises.
...
In law the only issue which it is necessary to resolve is whether the defendant, since his sublease was terminated, has been given a lease by the landlord.
A lease may be entered into orally, although it is to be noted that property-management companies customarily draw up a written agreement.
In the instant case no lease has been signed since the termination of the sublease.
None of the documents produced discloses any agreement by the plaintiffs to enter into a lease.
It remains to be determined whether, by not immediately or clearly replying to the defendant’s letter of 29 February 1988 or by allowing an employee of the property-management company to tell the defendant that he was going to refer back to the landlord, the plaintiffs may – under the doctrine of good faith – have agreed to enter into a lease.
The Court reaches the conclusion that, in the circumstances of this case, no lease was entered into orally (the existence of an oral agreement has not been proved) or even implied by the clear conduct of the parties.
While it is true that the defendant wishes to remain in the flat, it is not even apparent from the evidence that he has clearly asked for a lease to be drawn up.
Despite the unambiguous letters from the plaintiffs, the defendant did not take the trouble to reply in writing.
He therefore could not truly suppose – in good faith – that the plaintiffs were implicitly granting him a lease.
He had all the less reason to assume a tacit agreement of this kind as, since the termination of the head lease, and accordingly of the sublease, proceedings had been pending for an extension of the lease, during which the landlord had clearly denied being contractually bound to the defendant or wishing to be.
Consequently, there is no lease between the parties.
... it must be held that the defendant is on the premises unlawfully.
Article 641 para. 2 [of the Civil Code] applies in this case ..."
20. In a judgment of 7 June 1990 the Canton of Geneva Court of Justice dismissed an appeal by Mr Ankerl on the following grounds:
"The Court cannot but agree with the court below that there was no contractual relationship between the landlord, Chrysanthemum SA, and Guy Ankerl. It is bold to argue that the existence of a lease is evidenced by the conduct of the landlord or of the landlord’s representatives, who, on the contrary, always emphasised their determination not to enter into a lease with Guy Ankerl for flat at no. 3, rue Saint-Léger, second floor. The fact of having handed over rent receipts accompanied by the letter of 14 July 1987 or of not having replied to the appellant’s letter of 29 February 1988 cannot be construed as meaning that a lease was in existence. It follows, in the absence of any lease, that the Court of First Instance had jurisdiction ratione materiae.
... According to this Court’s case-law, a landlord is entitled to raise his ownership against a subtenant and to rely on Article 641 para. 2 [of the Civil Code], in the absence of any legal relationship between the parties ...
The sublease is a lease between the tenant and the subtenant ...
Having been given notice for 28 February 1988, Guy Ankerl, from that date, no longer has any right to remain on the premises.
..."
21. The applicant lodged a public-law appeal with the Federal Court against the Court of Justice’s judgment. In his pleading he relied, in particular, on Articles 6 and 14 of the Convention (art. 6, art. 14) and argued:
"... the fact that [the cantonal courts] allowed the representative of a party to be heard as a witness on oath created a flagrant inequality vis-à-vis the other party, who by the force of circumstance was not able to call witnesses to whom the oath could be administered. The equality of arms guaranteed both in the Federal Constitution and in the European Convention on Human Rights was not ensured. Such inequality is all the more flagrant where the court dealing with the case has not taken the slightest account in its decision of statements made by a witness, even if heard purely for information purposes. This was a gross breach of the law, which expressly provides, even if it precludes taking the oath, that a spouse may testify and therefore implies that the court dealing with the case will consider that evidence."
22. The First Civil Division of the Federal Court delivered its judgment on 3 October 1990. It declared inadmissible - in particular - the complaint based on a violation of Articles 6 and 14 of the Convention (art. 6, art. 14), as follows:
"... On a public-law appeal, the Federal Court will consider only the complaints adequately pleaded ... the notice of appeal must contain, inter alia, a succinct statement of the constitutional rights or legal principles violated, specifying in what the breach consists (section 90 (1) (b) of the Federal Judicature Act).
... In many respects, the present appeal does not comply with this requirement that reasons must be given.
This is true ... of the ground based on a breach of Articles 6 and 14 (art. 6, art. 14) [of the] European Convention on Human Rights, of which the appellant makes a bald assertion without providing any explanation."
23. Dismissing the remainder of the appeal, the First Civil Division said:
"The appellant also submitted that the Court of Justice had made an arbitrary assessment of the evidence taken by the court below.
...
... If the appellant’s argument, which is not very clear, has been understood correctly, the cantonal appellate court inadmissibly took into account the interview that Mr Linder had with the appellant in April 1988 in the presence of the appellant’s wife, in that it completely ignored her statements and only took Mr Linder’s statement into consideration.
In this connection it must be pointed out that the appellant’s wife was heard only for information purposes and without taking the oath, in accordance with Article 226 [of the] Civil Proceedings Act [of the Canton of Geneva]. According to commentators on Geneva’s Civil Proceedings Act, however, hearing a witness for information purposes is of purely informative import and has no probative value ... There was therefore nothing arbitrary in the instant case in not taking account of the explanations provided by Mrs Ankerl. The appellant did not, moreover, show in what way the cantonal appellate court had unsustainably interpreted the statements made by the sworn witness Jean-Gabriel Linder. Contrary to what he appeared to be arguing, the court below did not infer from those statements that the witness had indicated to the appellant that he would have to leave the flat. It merely found that Mr Linder `confirmed that he would pass on to the landlord Guy Ankerl’s wish to enter into a new lease’. The appellant did not attack that finding.
...
The present appeal is manifestly ill-founded, and it must accordingly be dismissed in so far as it is admissible."
24. Mr and Mrs Ankerl left the flat in issue on 16 October 1991.
25. The relevant provisions of the Canton of Geneva Civil Proceedings Act of 10 April 1987, which came into force on 1 August 1987, are the following:
"Unless otherwise laid down by law, the court shall freely assess the results of measures taken to obtain evidence."
"Anyone of sound mind who has been lawfully summoned shall be required to appear as a witness to give evidence on oath."
"1. The following cannot be heard as witnesses:
(a) lineal relatives of one of the parties;
(b) brothers and sisters;
(c) uncles and nephews;
(d) relatives of the same degree by marriage;
(e) spouses, even if divorced.
2. The parties may, however, have these persons heard as witnesses, with the exception of descendants, in proceedings for withdrawal of parental authority, in matters concerning personal status and in cases concerning judicial separation, divorce and measures to preserve marital union."
"The persons referred to in Article 225 para. 1 may be heard as witnesses in other cases without distinction, but without taking the oath and solely for information purposes.
..."
26. Section 90 of the Federal Judicature Act of 16 December 1943 provides:
"1. In addition to identifying the order or decision being appealed against, the notice of appeal must contain:
(a) the appellant’s submissions; and
(b) a statement of the main facts and a succinct statement of the constitutional rights or legal principles violated, specifying in what the breach consists.
2. ..."
NON_VIOLATED_ARTICLES: 6
NON_VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-103415
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: CHAMBER
DATE: 2011
DOCNAME: CASE OF ÇAMYAR AND BERKTAŞ v. TURKEY
IMPORTANCE: 3
CONCLUSION: Remainder inadmissible;Violation of Art. 10;Violation of Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - award
JUDGES: Françoise Tulkens;Guido Raimondi;Ireneu Cabral Barreto;Kristina Pardalos;Nona Tsotsoria
TEXT: 5. The applicants were born in 1968 and 1958 respectively and live in Istanbul. The first applicant is the owner of a publishing house in Istanbul which published a book giving rise to the present application. The second applicant is the editor and author of the book in question.
6. On 25 April 2000 the public prosecutor at the Istanbul State Security Court commenced an investigation in connection with a book, entitled Hücreler, published and written by the first and second applicants respectively as a critique of the Turkish penitentiary system. The book contains nine articles, five of which are written by the second applicant, in which the authors criticise the cell system in Turkish prisons. By way of examples from other countries and personal anecdotes, the second applicant claims in her articles that the cell system facilitates illtreatment and leads to deaths in prison. The introductory part of the book states the following:
“This book is a salute to the new generations who fascism is trying to separate from our history of resistance and tradition of unity. It is a white page handed over by those who made courage and sacrifice the norm and created future revolutionary fighters. It is a message from those who, like a magnet, carried new powers from generation to generation to our ranks. We did not and will not allow [future generations] to forget the traditions and norms that were created during humanity's, revolutionists' and communists' struggle and revolt against slavery, genocide, fascism and national and class exploitation ... In this book, we transmit our conscience and hearts to those who are fighting for a better future.”
7. The book also contains four other articles written by persons serving prison sentences, following their conviction for having been involved in an illegal armed organisation called the TIKB (Bolşevik). In their articles, entitled “Isolation cells are death cells”, “She was in [prison], I was out”, “Empty the dungeons, free the prisoners” and “Prisons and health”, the authors criticise the isolation of prisoners, ill-treatment of detainees and poor prison conditions and recount their personal experiences of imprisonment. Furthermore, the book comprises newspaper clippings concerning the real events on which the articles are based.
8. On 23 October 2000 the public prosecutor filed a bill of indictment against the applicants, accusing them of disseminating propaganda that undermined the territorial integrity and the indivisible unity of the Republic of Turkey through publishing, and of aiding and abetting an illegal armed organisation, namely, TIKB (Bolşevik), in certain parts of the book. The charges were brought under sections 5 and 8 subsections 1, 2 and 4 of Law no. 3713 and Articles 36 and 169 of the now defunct Criminal Code. The Government noted that TIKB (Bolşevik) had been involved in a number of terrorist acts with a view to detaching part of the territory of Turkey and forming a political regime based on Marxist-Leninist ideology. The organisation, which was qualified as a terrorist organisation under the domestic law of Turkey, disseminated separatist propaganda within the Kurdish community and incited hatred and hostility by making distinctions on the basis of race and region.
9. At the first hearing, held on 24 January 2001, the Istanbul State Security Court invited the applicants to present their defence arguments against the bill of indictment filed by the public prosecutor. Both applicants requested an extension of the time-limit for the preparation of their defence, which was granted. The applicants were informed that they were expected to present their defence arguments at the next hearing and that otherwise they would be deemed to have waived their defence rights in so far as the bill of indictment was concerned.
10. At the second hearing, on 11 April 2001 the applicants requested a further extension. The first applicant, Elif Çamyar, claimed that she had appointed a new lawyer who had prior engagements, and the second applicant argued that she had encountered problems in meeting with her lawyer due to the searches conducted on lawyers visiting the prison. The State Security Court dismissed the applicants' request for a further extension and indicated that that interim decision could be appealed against along with the decision on the merits.
11. At the third and fourth hearings, on 11 July 2001 and 24 October 2001 Nevin Berktaş requested extensions of the time-limit for submission of her defence arguments, whereas Elif Çamyar or her representative did not attend. The court granted the extensions requested and ruled that at the next hearing the applicants were required to be present and make their final submissions.
12. On 7 November 2001 the Istanbul State Security Court heard the applicants' defence submissions. The applicants pleaded not guilty and argued that in the book they had merely criticised fascist policies in Turkey and, particularly, had expressed their opinion about the prison system. They claimed further that their trial by a State security court for publication of a book had constituted a violation of Articles 6 and 10 of the European Convention on Human Rights. Following this hearing, the State Security Court rendered its judgment and convicted the applicants under Article 169 of the now defunct Criminal Code of aiding and abetting the illegal armed organisation TIKB (Bolşevik). The court sentenced the first applicant to three years and nine months' imprisonment, convertible to a fine of 4,152,330,000 Turkish liras (TRL), and the second applicant to four years, four months and fifteen days' imprisonment in view of her previous conviction of membership of the TIKB (Bolşevik). The State Security Court did not make reference to any specific passages or pages of the book, but rather based its conviction on a review of the book as a whole.
13. By petitions dated 8 and 12 November 2001 the applicants appealed against the above-mentioned judgment and requested the Court of Cassation to hold a hearing. The Court of Cassation decided to hold a hearing in respect of Nevin Berktaş but dismissed the request of Elif Çamyar on the grounds that the conditions required under Article 318 of the Code of Criminal Procedure had not been met.
14. On 4 April 2002 the Court of Cassation upheld the judgment of the State Security Court without holding a hearing. It noted that Nevin Berktaş and her representative had not attended the hearing and had not informed the court of the reason for their absence. The opinion of the Chief Public Prosecutor submitted to the Court of Cassation was not communicated to the applicants.
15. On 26 April 2002 the decision of the Court of Cassation was returned to the registry of the Istanbul State Security Court.
16. On 10 January 2004 the applicants requested a re-examination of their case by the 14th Chamber of the Istanbul Assize Court in view of the future entry into force of the new criminal code on 13 January 2005 (Law no. 5237). They further asked the court to suspend the execution of their sentences.
17. In a judgment dated 29 June 2007 the Istanbul Assize Court first determined which law was the most favourable in respect of the applicants. It held that the former criminal law was more favourable to the first applicant because she had been convicted of an offence under Article 169 of the now defunct Criminal Code and her sentence had been converted to a fine, whereas if the new amendments had applied she would have been sentenced to at least one year of imprisonment, which could not be converted into a fine.
18. As regards the second applicant, Nevin Berktaş, the court held that the provisions of the new criminal code were more favourable to her. Thus, it convicted her of the offence under section 7(2) of Law no. 3713. The court, after reducing the penalty to be imposed by 1/6 under Article 62 of the new Criminal Code, sentenced the second applicant to ten months' imprisonment and to a fine of TRY 416. The applicants appealed.
19. On an unspecified date, the Court of Cassation quashed the above judgment in respect of the first applicant, Elif Çamyar, on the ground that a pre-payment notice (ön ödeme ihtaratı) had not been served on her. It noted that the offence committed by the applicant fell within the scope of section 7(2) of Law no. 3713, as amended by Law no. 5532, and that the said provision provided for a fine and required pre-payment.
20. In a judgment dated 18 December 2009 the Istanbul Assize Court convicted the first applicant, Elif Çamyar, of the offence under Article 169 of the former Criminal Code and sentenced her to three years and nine months' imprisonment. The Assize Court reiterated that the former criminal code was more favourable to the first applicant since it provided for a lighter sentence that could be converted to a fine. Thus, in the light of the new amendments, the court converted the first applicant's prison sentence to a fine in the amount of TRY 4,095 (approximately EUR 2,000). The court noted that the first applicant and her representative had failed to attend the hearing and had also failed to make the pre-payment.
21. On 26 January 2010 the first applicant appealed against that judgment. The proceedings are still pending before the Court of Cassation.
22. At the time of the applicants' conviction, Article 169 of the Criminal Code provided as follows:
“Any person who, knowing that an armed gang or organisation is illegal, assists it, harbours its members, provides it with food, weapons and ammunition or clothes or facilitates its operations in any manner whatsoever shall be sentenced to no less than three and no more than five years' imprisonment ...”
On 30 July 2003 this Article was amended and the part “... or facilitates its operations in any manner whatsoever ...” was deleted.
23. Under section 7(2) of the Prevention of Terrorism Act (Law no. 3713 of 12 April 1991), any person who disseminates propaganda in favour of a terrorist organisation shall be liable to a term of imprisonment of one to five years.
24. Further information on the relevant domestic law and practice in force at the material time can be found in the following judgments and decision: İbrahim Aksoy v. Turkey, nos. 28635/95, 30171/96 and 34535/97, §§ 41-42, 10 October 2000; Özel v. Turkey no. 42739/98, §§ 20-21, 7 November 2002; Gençel v. Turkey, no. 53431/99, §§ 11-12, 23 October 2003; and Halis v. Turkey (dec.), no. 30007/96, 23 May 2002.
25. By Law no. 5190 of 16 June 2004, published in the official journal on 30 June 2004, the State Security Courts were abolished.
VIOLATED_ARTICLES: 10
6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-100393
LANGUAGEISOCODE: ENG
RESPONDENT: DEU
BRANCH: CHAMBER
DATE: 2010
DOCNAME: CASE OF BREILER v. GERMANY
IMPORTANCE: 4
CONCLUSION: No violation of Art. 6-1
JUDGES: Ganna Yudkivska;Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Peer Lorenzen;Rait Maruste;Renate Jaeger
TEXT: 4. The applicant was born in 1939 and lives in Berlin. He studied educational science and aircraft engineering and piloting in the former German Democratic Republic (GDR). From 1969 until 1990 he worked for the GDR airline Interflug.
5. On 4 December 2000 he applied for the transfer of alleged future pension rights under one of the additional pension schemes for certain professions or groups (Zusatzversorgungssysteme). On 20 February 2002 the applicant's request was dismissed. His subsequent administrative appeal, submitted on 13 March 2002, was rejected on 26 July 2002.
6. On 30 August 2002 he brought an action in the Social Court, which, following a hearing on 20 January 2003, dismissed the action, finding that the applicant did not qualify for any of the additional pension schemes. The judgment was served on the applicant on 20 February 2003. On 18 March 2003 he appealed the judgment.
7. On 18 June 2003 the Federal Social Court rendered a decision concerning a similar subject-matter, which was consistent with the Social Court's decision in the instant case. On 28 August 2003 the Social Court of Appeal advised the parties of the Federal Social Court's decision and classified the case as ready for decision.
8. During the course of the appeal proceedings the applicant's representative declared that he was seeking fundamental clarification of the subject-matter before the Federal Constitutional Court. The Social Court of Appeal therefore awaited a decision of that court.
9. On 24 April 2006 the judge rapporteur enquired whether the appeal was to continue after the Federal Constitutional Court on 1 March 2006 (file no. 1 BvR 320/06) had declined to admit for examination a constitutional complaint in a similar case.
10. On 8 May 2006 the applicant's representative announced that he would submit further observations until 30 June 2006. After a reminder of the Social Court of Appeal on 15 August 2006 these observations were submitted on 20 December 2006.
11. On 16 February 2007 the Social Court of Appeal dismissed the applicant's appeal and refused to grant leave to appeal on points of law. On 15 March 2007 the judgment was served on the applicant's representative.
12. Within the statutory time limit the applicant's representative objected to the refusal to grant leave to appeal on points of law and reasoned the objection on 15 June 2007. On 22 January 2008 the Federal Social Court dismissed the objection as inadmissible. This decision was served on the applicant's representative on 1 February 2008.
13. Section 88 of the Social Courts' Act exempts applicants from the requirement to await the outcome of the preliminary administrative proceedings and allows them to lodge a court action directly with the Social Court if the administrative authorities fail without sufficient justification to decide the administrative appeal within a reasonable time, in general three months.
14. Further relevant domestic law and practice is described in the Court's decision of Klose and Others v. Germany (see Klose and Others v. Germany (dec.), no. 12923/03, 25 September 2007) and Ritter v. Germany (see Ritter v. Germany (dec.), no. 31102/04, 20 November 2007).
NON_VIOLATED_ARTICLES: 6
NON_VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-92288
LANGUAGEISOCODE: ENG
RESPONDENT: UKR
BRANCH: ADMISSIBILITY
DATE: 2009
DOCNAME: IVASHCHENKO v. UKRAINE
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Rait Maruste;Renate Jaeger;Stanislav Shevchuk;Zdravka Kalaydjieva
TEXT: The applicant, Ms Vera Nikolayevna Ivashchenko, is a Ukrainian national who was born in 1947 and lives in Rovenky. The Ukrainian Government (“the Government”) were represented by their Agent, Mr Yuriy Zaytsev.
The facts of the case, as submitted by the parties, may be summarised as follows.
On 12 June 2002 the applicant had a quarrel with a certain P., which led to a fight. On the same day the applicant complained to the police that P. had beaten her up. On the next day the latter lodged a similar complaint against the applicant. On 19 June 2002 the Rovenky Town Police (“the Rovenky police”) refused to institute criminal proceedings against the applicant for lack of corpus delicti found in her actions.
On the same day the Deputy Chief of the Rovenky police informed the applicant of the above ruling, but confused the case reference with the applicant's own complaint. Therefore, being convinced that the police had refused to open criminal proceedings against P., the applicant challenged it before the Lugansk Regional Prosecutor's Office.
On 7 August 2002 the police joined the two criminal claims for common investigation.
On 8 January 2003 the Rovenky Prosecutor's Office quashed the 19 June 2002 ruling and remitted the case to the police, who in February 2003 questioned the witnesses to the events of 12 June 2002. On 12 February 2003 it held a confrontation between the applicant and P. On the same day a forensic medical examination of P. was carried out, reaching the conclusion that she had sustained injuries of medium gravity in June 2002.
On 24 March 2003 formal charges of deliberate infliction of medium bodily harm were brought against the applicant, who by now had legal representation. At the same time, she was placed under an undertaking not to abscond.
On 2 April and 14 May 2003 she requested the investigator to carry out a reconstruction of the circumstances of the events and to arrange a confrontation with P. On 7 April and 17 May 2003 respectively her requests were rejected.
On 23 May 2003 the applicant's lawyer requested that the investigations be stayed because of the applicant's illness.
On 1 June 2003 the investigator ordered a medical examination of the applicant in connection with her allegation that she had been beaten up by P. He also reported to the Rovenky Prosecutor's Office that the applicant had refused to undergo this medical examination or to participate in any investigative activities, referring to her poor health.
On 2 June 2003 an on-site reconstruction of the events was carried out with the applicant's participation. She requested the investigation not to carry out any further confrontations between her and P.
On 4 June 2003 the medical report was drawn up. It found that the applicant had sustained light bodily injuries possibly originating from her fight with P.
On 6 June 2003 the investigator decided to open a new investigation into the applicant's allegation that she had been beaten up by P., referring to the finding in the medical report.
On 10 June 2003 the Lugansk Region Deputy Prosecutor informed the applicant that disciplinary measures had been applied to the investigator in charge of the case for delays in its examination.
On 11 June 2003 the investigator issued a warrant for compulsory appearance of the applicant, as the latter had twice failed to answer the summonses without any valid reasons. The police officers reported that the applicant was not at her regular residence address.
On 18 June 2003 the investigator requested to be replaced, stating that he had been insulted by the applicant.
On 20 June 2003 the Rovenky police issued a ruling on refusal to open criminal investigations against P. on the basis of the applicant's complaint of 12 June 2002.
By a decision of 23 June 2003 the investigation was stayed because of the applicant's illness. On 1 July 2003 the Regional Prosecution Office quashed this decision as not based on any documentary evidence.
On 15 July 2003 the Rovenky Town Court (“the Rovenky court”) rejected the investigator's request to order the applicant's detention pending trial.
On 2 August 2003 the applicant confirmed in writing that she would appear before the investigator on 4 August 2003.
On 29 August 2003 the investigation was stayed, the applicant's whereabouts being unknown, but was resumed on 15 October 2003. On the same day the Rovenky police established a special investigation group, referring to a particular complexity of the case.
On 7 November 2003 the applicant was newly charged with deliberately inflicting medium bodily harm on P. On 17 November 2003 a forensic psychiatric examination was scheduled, but the applicant failed to appear, referring to her health problems. The investigator therefore requested the court to order the applicant's admission to a psychiatric hospital as an inpatient. On 24 November 2003 the court dismissed the request as unsubstantiated.
On 4 March 2004 the Rovenky Prosecutor's Office approved a bill of indictment against the applicant and sent the case for trial to the court.
On 15 March 2004 the Rovenky court held a preliminary hearing.
About twenty-five hearings followed, but there were five adjournments for a total of almost seven months because of the applicant's absence or because she had requested adjournments. Ten of the hearings were adjourned for a total of almost nine months because of the witnesses' or other participants' failure to appear or following their requests for adjournment. Four hearings had to be adjourned for a total of almost two months due to the prosecutor's absence, on the court's requests to the police for additional documents, and because of the judge's illness.
In October and November 2004, September 2005 and January 2006 the court requested from the police (apparently unsuccessfully) the results of the examination of the applicant's complaint against P., which had been singled out in a separate investigation.
On 29 December 2004 the court ruled that the case should be returned to the Rovenky Prosecutor's Office for an additional investigation. The prosecutor and P. appealed.
On 11 March 2005 the Lugansk Regional Court of Appeal allowed those appeals, finding that remittal of the case for additional investigation had not been justified, as the first-instance court could clarify the issues, which it believed remained unaddressed, in the course of the trial.
In November 2006 the Rovenky court issued a ruling that the investigation into the applicant's complaint against P. had been excessively lengthy. It also noted that the investigation officials had infringed the applicant's rights as an accused, having unlawfully turned down her request to carry out the confrontation and other investigative acts, having unjustifiably requested her admission to a psychiatric hospital, and having committed some procedural errors. These findings were to be brought to the attention of the Lugansk Regional Police Chief so that adequate measures could be taken.
In a judgment of 20 November 2006 the court found the applicant guilty of deliberately inflicting medium bodily harm on P. It sentenced her to a fine of 510 Ukrainian hryvnias (UAH) and ordered her to pay UAH 1,500 to P. in compensation for non-pecuniary damage.
On 29 and 30 November and 1 and 5 December 2006 the applicant studied the case file.
On 5 December 2006 the court considered the applicant's remarks on the record of the hearings and accepted most of them.
The applicant, her lawyer and P. appealed against the judgment. On 2 March 2007 the Lugansk Regional Court of Appeal dismissed the appeals as unfounded.
On 1 August 2007 the Supreme Court rejected the applicant's request for leave to appeal in cassation as unsubstantiated. However, on 4 September 2007, it reconsidered its decision and requested the criminal case file from the Rovenky court. On 19 February 2008 it dismissed appeals in cassation by the applicant and her lawyer as unsubstantiated.
The applicant made a new cassation appeal, which was found inadmissible by the Supreme Court on 7 April 2008.
Pursuant to Article 28, a victim of a criminal offence may lodge a civil claim either in the framework of criminal proceedings or under a separate civil procedure.
Article 120 concerning duration of pre-trial investigation is set out in the judgment of Merit v. Ukraine, no. 66561/01, 30 March 2004.
Provisions as regards the duties of witnesses during pre-trial investigation and trial are summarised in the case of Kobtsev v. Ukraine, no. 7324/02, § 31, 4 April 2006.
Article 281 concerning remittal of a case for additional investigation is set out in the judgment of 6 September 2005 in the case of Salov v. Ukraine, no. 65518/01, § 72, 6 September 2005.


ITEMID: 001-23179
LANGUAGEISOCODE: ENG
RESPONDENT: SWE
BRANCH: ADMISSIBILITY
DATE: 2003
DOCNAME: OLSSON v. SWEDEN
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Nicolas Bratza
TEXT: The applicant, Daniel Olsson, is a Swedish national, who was born in 1971 and lives in Orsa. The respondent Government were represented by Ms I. Kalmerborn, Ministry for Foreign Affairs.
The facts of the case, as submitted by the parties, may be summarised as follows.
In its tax return for value-added tax for the period January – June 1993, Dondolare AB, a limited liability company owned by the applicant, claimed a right to deduct value-added tax (VAT) in the amount of 599,125 Swedish kronor (SEK) which had allegedly been paid in connection with the purchase of certain computer software rights.
By a decision of 30 May 1994 the Tax Authority (skattemyndigheten) of the County of Kronoberg refused the deduction, considering that it was based on a fictitious transaction. The Authority also ordered the company to pay a tax surcharge (skattetillägg) amounting to 20% of the increased tax liability, claiming that the company had submitted incorrect information in its tax return. On the basis of this decision the Authority, on 3 January 1995, reported the applicant to the police authorities in Växjö on suspicion that he had committed a tax crime (hereinafter referred to as “case A”).
As a consequence of the report, a preliminary investigation was opened on 10 January 1995. The applicant was questioned on 19 January 1995. The Växjö police authorities completed its investigation on 2 February 1995 and the applicant received, on that date, a copy of the file.
Another preliminary investigation, initiated in 1994 and involving, inter alia, the applicant, was being conducted by the special department for economic crimes of the Public Prosecutor’s Office (åklagarmyndigheten) in Malmö (hereinafter referred to as “case B”). As the two investigations were considered to have much in common, they were joined and, as from 23 February 1995, directed by the prosecutor in Malmö.
In the tax proceedings, the applicant’s company appealed against the imposition of a tax surcharge. By a judgment of 28 February 1995 the County Administrative Court (länsrätten) of the County of Kronoberg found that, although there were circumstances in the case which justified the calling into question of the right to the claimed VAT deduction, there was not sufficient evidence to show that the transaction in question had been fictitious or that the information submitted in the tax return in this respect had been incorrect in any other sense. The court noted that the mere rejection, under taxation law, of the arguments made in support of a claim for deduction of tax could not in itself lead to the conclusion that incorrect information had been submitted. Consequently, the court quashed the Tax Authority’s decision in so far as it concerned the imposition of a tax surcharge. The Authority did not appeal against the judgment.
The applicant alleges that, following the County Administrative Court’s judgment, he and his legal counsel requested both the Tax Authority and the Public Prosecutor’s Office in Malmö to observe it and to take action accordingly.
During the criminal investigations it emerged that, in case A, the applicant, as representative of Dondolare AB, had bought computer software and certain related sales rights from Media Mic Software AB, a company which had previously been owned by the applicant’s brother, M.O., and in which the brother was considered to have a continuing deciding influence. The latter company had, in its turn, bought the software from another company owned by M.O, Bo Michael Trade AB. Moreover, Dondolare AB’s purchase had been financed by M.O.
In case B, M.O. had financed the purchase by an Indonesian company of certain licensing rights to computer software from a Swedish company, Svenska Dataintressenter AB. That company had, in its turn, bought the rights from another Swedish company, PE & BE Reklam AB, of which, inter alia, the applicant was a representative. The latter company had claimed to have purchased the rights from a Polish company which later turned out to be non-existent. A third Swedish company, Svenska Dataintressenter i Malmö AB, thus having a similar name as the one that had bought the licensing rights from PE & BE Reklam AB, had claimed in its tax return for the period January – June 1993 a deduction for VAT paid on the basis of that sales agreement, although it had not been a partner to the agreement and therefore not entitled to claim the deduction. It was suspected that the transactions in case B had been initiated by M.O. and that he had had a deciding influence over the various Swedish companies. Moreover, the computer software to which the licensing rights applied had been of insignificant value, according to an expert opinion, and it was suspected that the transactions had been carried out in order to fraudulently obtain VAT refunds. The applicant, M.O. and a third person were suspected of tax crimes in relation to the VAT claim in case B.
The Public Prosecutor’s Office concluded that the persons involved, the mode of action and the relevant time-periods were essentially the same in cases A and B and considered that the possibilities of indicting both the applicant and M.O. were good. It was further considered that, in regard to both cases and thus in regard also to the suspicions against the applicant, it was necessary to hear M.O., who was living in Jakarta, Indonesia.
In the beginning of the investigation into case B, M.O. had expressed his readiness to be interviewed by the Swedish police. M.O. having later changed his mind, the prosecutor had, via the Swedish Ministry for Foreign Affairs and the Swedish Embassy in Jakarta, in June 1994 requested legal assistance from the Indonesian authorities in obtaining information from a bank concerning certain documents submitted by M.O which were suspected to be forgeries. No information was forthcoming from the Indonesian police authorities in charge of the matter and further contacts via diplomatic channels were therefore taken in November 1994 and in February and March 1995. By a decision of the public prosecutor of 13 September 1995 M.O. was ordered to be detained on remand in his absence and a Swedish warrant for his arrest was issued. In early 1996 and in June the same year the public prosecutor again contacted the Ministry for Foreign Affairs in relation to the mentioned request for legal assistance. At the time of the latter contact, the District Court had upheld the decision on detention on remand and, as a consequence, an international warrant for M.O.’s arrest was issued. The prosecutor also asked the Ministry for Foreign Affairs to examine the possibilities of having M.O. extradited from Indonesia. The efforts to get legal assistance from the Indonesian authorities continued. In January 1997 there was a further contact between the prosecutor and the Ministry for Foreign Affairs concerning both the request for legal assistance and the extradition issue. At about this time, a Swedish liaison officer temporarily staying in Indonesia and an employee of the Swedish Embassy had paid a visit to some high-ranking Indonesian police officers and had raised the problem of receiving legal assistance from Indonesia. The outcome of this meeting was considered positive and it was hoped that the requested information would arrive within a month or two. Apparently, however, this did not happen. On 9 June 1997 the Swedish Embassy reported that the local police authorities were waiting for permission from the Indonesian Ministry of Finance to put questions to the Indonesian bank. The next day, it submitted information from Interpol in Jakarta, according to which M.O. had moved and his new address was unknown. In addition to the above-mentioned measures, the Swedish police was continuously searching for M.O., having received indications on several occasions that he would come to Sweden.
On 19 June 1997 the Public Prosecutor’s Office decided to terminate the criminal proceedings in cases A and B on the ground that it could not be proved that a crime had been committed. The applicant was informed thereof on 4 September 1997.
On 30 January 1998 the Parliamentary Ombudsman (Justitieombuds-mannen), examining a complaint made by the applicant, concluded that there was nothing calling for further action and therefore decided not to make any inquiries in the matter.
On 22 December 1999 the Chancellor of Justice (Justitiekanslern), in reply to a request for damages made by the applicant, decided that there was no reason to assume that a crime had been committed by any public official and the applicant was therefore not entitled to damages. His request was consequently rejected.


ITEMID: 001-75719
LANGUAGEISOCODE: ENG
RESPONDENT: POL
BRANCH: CHAMBER
DATE: 2006
DOCNAME: CASE OF WOS v. POLAND
IMPORTANCE: 1
CONCLUSION: Preliminary objections rejected (incompatibility ratione personae;non-exhaustion of domestic remedies);Preliminary objection joined to merits (incompatibility ratione materiae);Violation of Art. 6-1;Non-pecuniary damage - financial award;Costs and expenses (Convention proceedings) - claim dismissed
JUDGES: Giovanni Bonello;Josep Casadevall;Kristaq Traja;Lech Garlicki;Nicolas Bratza;Stanislav Pavlovschi
TEXT: 8. The applicant was born in 1928 and lives in Cielcza, Poland.
9. The realities of the international situation following the end of the Second World War prevented the Republic of Poland from asserting any claims arising out of persecution of its citizens, including as forced labourers, by Nazi Germany.
10. In the period immediately following the Second World War, Poland did not conclude a specific agreement with Germany regarding the issue of reparations. It relied on the Potsdam Agreement of 1 August 1945, concluded by the governments of the United States of America, the United Kingdom of Great Britain and Northern Ireland and the Union of Soviet Socialist Republics.
11. On 27 February 1953 the London Agreement on German External Debts (the London Debt Agreement) was concluded by the United States of America, Great Britain, France and the Soviet Union. Under this Agreement, consideration of claims arising out of the Second World War by countries that had been at war with, or were occupied by, Germany, and by nationals of such countries, against the Reich or agencies of the Reich was deferred until the final settlement of the issue of reparations.
12. On 23 August 1953, the day after a similar declaration by the government of the Soviet Union, the government of Poland declared that it renounced any claims against Germany in respect of war reparations as of 1 January 1954. In a declaration of 27 September 1969 made at the United Nations, the government of Poland clarified that the renouncement of 1953 did not affect individual claims arising out of unlawful acts.
13. It was only after the conclusion of the Treaty on the Final Settlement with respect to Germany of 12 September 1990 (the socalled TwoPlusFour Treaty) and the conclusion of two treaties between the Federal Republic of Germany and the Republic of Poland in 1990 and 1991 that the issue of persons persecuted by the Nazi regime was addressed in the bilateral agreement of 16 October 1991 (see paragraph 28 below).
14. The applicant was subjected to forced labour during the Second World War on the territory of occupied Poland. In February and March 1941 he worked on a German farm near Cielcza. Subsequently, from April 1941 to April/May 1944, the applicant worked as a forest labourer in Cielcza. Finally, he was relocated to an area situated 200 kilometres from his habitual place of residence, where he was required to reinforce German defences from May/June 1944 to 26 January 1945. In February 1944 the applicant reached the age of 16.
15. On 20 October 1993 the applicant applied to the Polish-German Reconciliation Foundation (Fundacja PolskoNiemieckie Pojednanie – “the Foundation”) for compensation on account of his forced labour from the funds contributed by the government of the Federal Republic of Germany under the Agreement of 16 October 1991 (see paragraphs 28-29 below). On 2 February 1994 the Foundation’s Verification Commission (Komisja Weryfikacyjna), having regard to a document issued by the social security authorities, established that the applicant had been subjected to forced labour from February 1941 to January 1945 and awarded him 1,050 Polish zlotys (PLN) in compensation. This payment was granted within the framework of the “primary payments scheme” (wypłaty podstawowe). The issue of deportation was apparently not addressed in the decision. The applicant’s subsequent appeal against this decision was dismissed by the Appeal Verification Commission (Odwoławcza Komisja Weryfikacyjna) on an unspecified date. The Appeal Verification Commission found that the amount of payment granted to the applicant had been calculated correctly.
16. On an unspecified date in 1999 the Foundation’s management board (Zarząd Fundacji) adopted Resolution no. 29/99, which introduced a deportation requirement for claimants who had been forced labourers. The resolution also provided that those claimants who had been subjected to forced labour as children under the age of 16 could be granted compensation regardless of whether the deportation condition was met (see paragraph 35 below).
17. On 2 March 2000, following the adoption of Resolution no. 29/99, the Foundation’s Verification Commission granted the applicant a supplementary payment of PLN 365. The decision on supplementary payment related to the applicant’s forced labour as a child under the age of 16 ( from April 1941 to February 1944). Thus, the period of forced labour from March 1944 to January 1945 was not taken into account because the deportation condition as defined in Resolution no. 29/99 had not been met. The period of forced labour from February to March 1941 was not acknowledged in the absence of appropriate evidence.
18. On 12 March 2000 the applicant appealed against that decision to the Appeal Verification Commission, challenging the amount of compensation granted. It appears that the applicant complained that the period of his forced labour between May/June 1944 and 26 January 1945, carried out in particularly harsh conditions connected with his relocation, was not taken into account by the Verification Commission. Having received no reply to his appeal, the applicant made further enquiries with the Foundation on 31 October 2000 and 3 January 2001.
19. In the meantime, the applicant had lodged a complaint with the Ombudsman regarding the Foundation’s inactivity. On 4 April 2001 the Ombudsman informed the applicant that, regrettably, he was not in a position to question the lawfulness of resolutions adopted by the PolishGerman Reconciliation Foundation or any other foundation. The PolishGerman Reconciliation Foundation was established in accordance with the Foundations Act of 6 April 1984. In this particular case, the Foundation operated under the supervision of the Minister of the State Treasury. However, the Ombudsman could not interfere with the Foundation’s actions as long as they complied with its statute and other legal regulations. The Ombudsman also referred to the Supreme Court’s decision of 31 March 1998, which refused to recognise the Polish-German Reconciliation Foundation as a public administration body (see paragraphs 4142 below).
20. By a letter of 24 April 2001, the President of the Foundation’s Appeal Verification Commission informed the applicant that, under the Foundation’s internal regulations in force at the material time (Resolution no. 29/99), only forced labourers deported to the Third Reich or to an area occupied by the German Reich (with the exception of the territory of occupied Poland) were eligible for compensation. Finally, the applicant was informed that no further appeal lay against the decision of the Appeal Verification Commission.
21. Nevertheless, on an unspecified later date, the applicant lodged a complaint against the decision of the Appeal Verification Commission of 24 April 2001 with the Supreme Administrative Court (Naczelny Sąd Administracyjny). It appears that in his complaint the applicant also challenged Resolution no. 29/99.
22. On 14 December 2001 the Supreme Administrative Court dismissed the applicant’s complaint, considering it inadmissible in law. It relied on Decision no. OPS 3/01, adopted by the Supreme Administrative Court on 3 December 2001 (see paragraph 45 below).
23. In a letter dated 23 September 2002, the Minister of the State Treasury informed the applicant that, in order for a forced labourer to be granted compensation, it was necessary for him to comply with the deportation requirement as specified in Resolution no. 29/99 of the Foundation’s management board.
24. On 21 November 2000 the applicant applied to the Foundation for compensation under the scheme for slave and forced labourers (the second compensation scheme), established under the Joint Statement of 17 July 2000, the German Law of 2 August 2000 on the creation of the Remembrance, Responsibility and Future Foundation (“the German Foundation Act”) and the subsequent Agreement of 16 February 2001 between the Remembrance, Responsibility and Future Foundation and the Polish-German Reconciliation Foundation (see paragraph 37 below). On 17 April 2001 the Foundation’s Verification Commission rejected his request on the ground that he did not satisfy the deportation requirement set out in section 11(1)2 of the German Foundation Act. It appears that the applicant did not appeal against the decision of the Verification Commission of 17 April 2001. The applicant’s subsequent complaints to the Minister of the State Treasury were to no avail.
25. In a letter dated 28 June 2005, the Foundation’s management board, referring to the Court’s admissibility decision in the present case, informed the applicant that its Resolution no. 29/99 of 18 August 1999 concerning interpretation of the term “deportation” had never restricted or violated his rights to receive a benefit, for the following reasons:
(a) the applicant did not comply with the deportation requirement specified in Resolution no. 27/92 of 17 August 1992, under which deportation was defined as “deportation outside one’s place of permanent residence into the territory of the Third Reich combined with performing labour for the benefit of the Third Reich”;
(b) the granting of compensation within the framework of the so-called primary payments for the period between February 1941 and January 1945 had been in breach of the Foundation’s regulations, namely Resolution no. 27/92;
(c) thus, the applicant should have received compensation solely for the period up to February 1944, namely, for the period until his 16th birthday, since he had never complied with the deportation requirement as specified in Resolution no. 27/92;
(d) the Foundation’s error committed in respect of the primary payment was rectified within the framework of the supplementary payments, and thus it could not be said that the applicant’s rights were restricted or breached.
26. The applicant was further informed that, since he had resided and performed forced labour on the territory of Wielkopolska province which, known as Warthegau province at the time, was annexed by the Third Reich in October 1939, the obligation to perform forced labour in the area of the applicant’s residence (his first workplace was located 10 km from his place of residence and the second – Cielcza forest – was in his habitual place of residence) could not be considered as deportation with a view to performing forced labour. Similarly, the obligation to reinforce German defences on Polish territories annexed by the Third Reich was not considered “deportation” under Resolution no. 27/92. Lastly, the applicant was informed that in cases such as his, when the Foundation had made an error in favour of a claimant, the consequences of that error were borne by the Foundation, which had never claimed reimbursement of the overpaid amounts.
27. Article 9 of the Constitution, which was adopted by the National Assembly on 2 April 1997 and came into force on 17 October 1997, states:
“The Republic of Poland shall respect international law binding upon it.”
Article 45 § 1 of the Constitution reads:
“Everyone shall have the right to a fair and public hearing of his case, without undue delay, before a competent, impartial and independent court.”
Chapter III of the Constitution, entitled “Sources of Law”, refers to the relationship between domestic law and international treaties.
Article 87 § 1 provides:
“The sources of the universally binding law of the Republic of Poland shall be: the Constitution, statutes, ratified international agreements, and regulations.”
The relevant parts of Article 91 state:
“1. After promulgation thereof in the Journal of Laws of the Republic of Poland [Dziennik Ustaw], a ratified international agreement shall constitute part of the domestic legal order and shall be applied directly, unless its application depends on the enactment of a statute.
2. An international agreement ratified upon prior consent granted by statute shall have precedence over statutes if such an agreement cannot be reconciled with the provisions of such statutes.”
Chapter VIII of the Constitution contains provisions related to the judiciary.
Article 175 § 1 of the Constitution provides:
“The administration of justice in the Republic of Poland shall be implemented by the Supreme Court, the ordinary courts, administrative courts and military courts.”
Article 177 of the Constitution states:
“The ordinary courts shall implement the administration of justice concerning all matters save for those statutorily reserved for other courts.”
The relevant part of Article 184 provides:
“The Supreme Administrative Court and other administrative courts shall exercise, to the extent specified by statute, control over the performance of public administration.”
28. On 16 October 1991 the governments of the Federal Republic of Germany and the Republic of Poland concluded an agreement on the basis of which the German government declared that, prompted by humanitarian considerations, it was prepared to contribute 500 million German marks (DEM) for the benefit of the Polish-German Reconciliation Foundation. The Foundation was to be established by the government of Poland with a view to providing financial assistance to victims of Nazi persecution who had suffered serious damage. The Foundation was to determine the necessary criteria for the granting of compensation, having regard to serious damage to the victims’ health and to their current financial difficulties. The government of Poland declared that it would not pursue further individual claims by Polish citizens arising out of Nazi persecution. Both governments indicated that their agreement should not amount to limitation of the rights of citizens of either country.
29. Subsequently, on 27 November 1991, the Minister – Head of the Cabinet’s Office (Minister – Szef Urzędu Rady Ministrów), acting as a founder, made a declaration before the State notary on the establishment of the Foundation. He declared that, acting on the initiative of the government of the Republic of Poland and on behalf of the State Treasury, he was establishing the Polish-German Reconciliation Foundation. The Foundation’s aim was to provide assistance to the victims of Nazi persecution and to undertake other activities for the benefit of those persons. The Minister also declared that the Foundation’s capital fund consisted of DEM 500 million, contributed by the German government to the Polish government.
30. The Polish-German Reconciliation Foundation was established in accordance with the Foundations Act of 6 April 1984, which regulates the activities of foundations in Poland. The Act stipulates that individuals and legal persons may establish foundations in order to carry out socially and economically beneficial goals which comply with the basic interests of the Republic of Poland. In principle, supervision of a foundation’s activities is exercised by the regional governor (Wojewoda) or the competent minister. These supervisory authorities may apply to a court to establish whether a foundation’s actions have complied with its aim, its statute and the general legislation (section 12). The competent minister or the regional governor may also apply to the courts to quash a resolution adopted by a foundation if it is evidently incompatible with its aim, its statute or the general legislation (section 13).
31. The statute of the Polish-German Reconciliation Foundation was drafted and subsequently registered by the Warsaw District Court on 24 February 1992. On that date the Foundation began its activities. The founder could amend the statute and decide whether the Foundation was to go into liquidation. According to paragraph 6 of the statute, the Foundation’s primary aim was to render direct financial assistance to those victims of Nazi persecution whose health had been seriously damaged and who were in financial difficulties as a result of that persecution. The function of supervisory authority was exercised in respect of the Foundation by the Minister of Labour and Social Policy (Minister Pracy i Polityki Socjalnej).
32. The Foundation’s main bodies were the supervisory board (Rada Nadzorcza), composed of twenty-one members, and the management board (Zarząd), composed of nine members. The members of those bodies were appointed and dismissed by the founder, namely, the Minister – Head of the Cabinet’s Office, who exercised full control in this respect. The two other bodies of the Foundation were the Verification Commission (Komisja Weryfikacyjna), whose members were appointed by the Foundation’s management board, and the Appeal Verification Commission (Odwoławcza Komisja Weryfikacyjna), whose members were appointed by the Foundation’s supervisory board.
33. The Foundation assessed the substantive and procedural aspects of requests for financial assistance on the basis of its statute and the regulations drawn up by the management board and adopted by the supervisory board. The Verification Commission was responsible for reaching decisions on whether to grant financial assistance to victims. Appeals against the Verification Commission’s decisions could be lodged with the Appeal Verification Commission. The latter’s decisions were to be final.
34. The financial assistance granted by the Foundation from the funds contributed by the government of the Federal Republic of Germany in 199293 was paid in two parts: a primary payment and a supplementary payment, the latter deriving from the interest accrued on the original contribution from the German government. On 7 June 2002 the disbursement of all those compensation payments was terminated on the basis of Resolution no. 29/2002 of the Foundation’s supervisory board as the relevant funds were depleted.
35. On an unspecified date in 1999 the Foundation’s management board adopted Resolution no. 29/99 which introduced a deportation requirement. The Resolution specified that only those forced labourers who had been deported from their place of residence to the territory of the German Reich or to territories occupied by Germany were eligible for compensation. It stipulated that the deportation condition was not fulfilled by those persons who had been subjected to forced labour on the territory of Poland within that country’s borders of August 1939. In addition, Resolution no. 29/99 laid down a separate eligibility criterion to the effect that those who had been subjected to forced labour as children under the age of 16 could be granted compensation regardless of whether the deportation condition was met.
36. On 10 December 2002 the Minister of the State Treasury (Minister Skarbu Państwa) assumed the function of founder and supervisory authority of the Foundation.
37. The facts relating to the second compensation scheme and the applicable legal provisions, which are not directly relevant for the merits stage of the present case, are set out in paragraphs 29-42 of the admissibility decision (see Woś v. Poland (dec.), no. 22860/02, ECHR 2005-IV).
38. In a decision of 12 January 1993 (no. I SA 1762/92), the Supreme Administrative Court stated that:
“A foundation is not a civic organisation and therefore, in accordance with the Code of Administrative Procedure, it is not possible to delegate to a foundation power to determine individual cases by way of administrative decisions.”
Consequently, a foundation’s decisions cannot be appealed against to the Supreme Administrative Court.
39. In a decision of 12 March 1993 (no. I ACr 133/93), the Warsaw Court of Appeal (Sąd Apelacyjny) held that:
“The Foundation’s aims in respect of its capital fund, which are determined in the Foundation’s statute, do not create rights for other persons vis-à-vis the capital fund. Lack of legal protection for the entitlements of particular persons to receive benefit from the Foundation implies that a claim raised in this respect is not a civil one, and accordingly the jurisdiction of the [civil] courts is excluded.”
40. In 1997 the Ombudsman referred to the Supreme Court a question of law (pytanie prawne), as to whether decisions given by the bodies of the Foundation could be appealed against to the Supreme Administrative Court and, if not, whether they could be subjected to judicial review in civil proceedings. The Ombudsman relied, inter alia, on Article 45 of the Constitution and Article 6 § 1 of the Convention. In particular, the Ombudsman asked the Supreme Court to consider the following issues:
(a) whether there was any legal provision excluding judicial review if a dispute arose between an individual and the Foundation;
(b) whether the Foundation could be regarded as a body performing functions in the area of public administration, given that it served public aims with the use of public resources;
(c) whether Article 1 § 2 and Article 5 § 2 (3) of the Code of Administrative Procedure constituted sufficient grounds to conclude that it could not perform any functions in the area of public administration;
(d) whether the assessment of facts and law established by the Foundation also had a bearing on the claimant’s relationship with the Director of the Veterans and Persecuted Persons Office;
(e) whether the decision to award or refuse to award compensation was not a purely technical act, since it was always preceded by a legal assessment of an individual case.
41. On 31 March 1998 the Supreme Court (Sąd Najwyższy) adopted Decision no. III ZP 44/97, holding that, since administrative functions could only be delegated by a statute, which was not the case with regard to the Polish-German Reconciliation Foundation, its decisions did not meet the requirements of an administrative decision and thus could not be challenged before the Supreme Administrative Court. However, the Supreme Court refused to give a definite answer to the question whether the Foundation’s decisions were subject to judicial review in civil proceedings. It nevertheless observed that entitlement to receive a benefit from the Foundation did not fall within the scope of civil law, and thus could not be raised before a civil court. In exceptional cases, such as where the claimant’s eligibility was established but the benefit had not been paid, a claim could arise under civil law.
42. The Supreme Court considered that the fact that the Foundation’s aims were the same as the aims which were to be achieved by the public authorities would not justify the conclusion that the PolishGerman Reconciliation Foundation performed functions in the area of public administration. Similarly, the manner in which the Foundation had been established and the nature of its tasks, common – in the Supreme Court’s view – to all foundations, could not support the above conclusion.
43. In a decision of 19 February 1999 (no. V SAB 7/99), the Supreme Administrative Court ruled:
“The Polish-German Reconciliation Foundation does not perform any functions in the area of public administration, in that there is no legal provision giving it the competence to do so. It follows that, in view of the lack of statutory authority, decisions granting or refusing to grant compensation to a victim of the Nazi regime are not administrative decisions and cannot be challenged before the Supreme Administrative Court.”
44. In a decision of 5 October 2001 (no. III CZP 46/01), the Supreme Court ruled that a plaintiff’s claim seeking recognition of the fact that he had been subjected to forced labour during the Second World War could not be examined by a (civil) court. The Supreme Court considered that the awarding of compensation by the Foundation under the second compensation scheme did not create an individual right of a contractual nature. The Foundation decided whether the eligibility conditions for the granting of payment were established. Thus, according to the Supreme Court, the Foundation was not a debtor vis-à-vis the claimants, but acted as a decision-making body. The Foundation’s decisions merely created a legal basis for the awarding of compensation. The above situation did not, therefore, resemble civil-law relations.
45. In a decision of 3 December 2001 (no. OPS 3/01), the Supreme Administrative Court confirmed the earlier case-law to the effect that it did not have jurisdiction to review the decisions of the Foundation and observed:
“The Polish-German Reconciliation Foundation, which awards benefits to the victims of Nazi persecution using the financial resources allocated to it by foreign entities, does not perform functions in the area of public administration. Thus, the source of the entitlement to receive an award from the Foundation does not stem from acts of the public administration.”
It further observed:
“There is no doubt that the Agreement of 16 October 1991 concluded between the Polish and German governments, which was not ratified, as well as subsequent acts [starting with the Joint Statement and the German Foundation Act] concerning grants of financial assistance by the Foundation on account of Nazi persecution do not fulfil the criteria which would make it possible to classify them as sources of binding Polish law. No administrative-law relation arises between a claimant and the Foundation on the basis of the aforementioned acts, and consequently the Foundation is not an organ of public administration established by law to determine cases in the sphere of public administration.”
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-4564
LANGUAGEISOCODE: ENG
RESPONDENT: GRC
BRANCH: ADMISSIBILITY
DATE: 1999
DOCNAME: TSARKNIAS v. GREECE
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Marc Fischbach
TEXT: The applicant is a Greek national, born in 1942 and living in Athens.
He is represented before the Court by Mrs I. Kourtovik, a lawyer practising in Athens.
The applicant considers himself to be part of a Macedonian ethnic minority in Greece. In 1973 he was ordained a priest in the Greek Orthodox Church. He used to live and work in the northern district of Florina and during the 1970s and 1980s became increasingly involved in the advocacy of greater cultural rights for Macedonian Greeks. In April 1992, he became a monk in the monastery of St George near Skopje. In February 1993 he was expelled from the Greek Orthodox Church. He claims that, since 1989, he has been arrested thirteen times and prosecuted for a series of offences, in particular that of abusing of his position as a priest.
In January 1992 the applicant was involved in an incident in his church in the village of Aghios Athanasios. The bishop of the city of Florina, who arrived at the church to attend the mass celebrated by the applicant, was confronted with thirty or forty persons shouting insults at him and calling for the Church to support Macedonian cultural rights. The applicant was accused of disrupting a religious congregation, abusing his position as a priest and disturbing citizen’s peace.
On 12 February 1996, he was tried in absentia (because he was unable to attend for health reasons) by the Salonica Criminal Court and was sentenced to forty months’ imprisonment for having disrupted a Christian congregation. The Criminal Court had previously rejected a request to adjourn the hearing. After having heard six witnesses for the prosecution, it found that on 29 December 1990, the applicant incited the congregation to violent disorder by saying to them that if the bishop arrived at the church by saying that “you must make him understand that you don’t want him to come in and if he does, blood will flow”. It also found that on 1 January 1992, while the bishop had managed to enter the church and had started celebrating the mass, the applicant unplugged the church’s microphones.
The applicant appealed against this judgment to the Salonica Court of Appeal composed of three judges, which heard the case on 12 February 1997 in the presence of the applicant and his lawyer. Ten witnesses were heard, five for the prosecution and four for the defence. The Court of Appeal delivered its judgement on the same day. It found the applicant guilty of disturbing the citizen’s peace (Article 190 of the Code of Criminal Procedure), of disrupting a religious congregation (Article 200) and of abusing his position as a priest (Article 196) ; it upheld the applicant’s conviction but reduced his prison sentence to twenty-four months and converted it into a pecuniary penalty of 1 500 drachmas (GDR) per day.
On 8 April 1998, the applicant appealed on points of law. He maintained that although he had invited the Appeal Court to hear ten witnesses on his behalf, the president of the Court refused to hear two of them and that this refusal had not been included in the minutes of the hearing although the applicant’s lawyer had invited the Court to do so. He also alleged that the Court of Appeal, contravening Article 339 § 2 of the Code of Criminal Procedure, had interrupted the taking of evidence and had examined in between some other small cases ; as a result, the applicant had lost the thread of his defence in violation of Article 6 of the European Convention. He maintained that the judgment of the Court of Appeal was not reasoned because it had merely reproduced the wording of the indictment and had not specified in what way the accused had actually committed the offences. In addition, he alleged that the members of the Court of Appeal and the Public Prosecutor lacked impartiality towards him. Finally, he alleged that the fact that the Court of Appeal refused to call all the witnesses for the defence amounted to a lack of public hearing.
The Court of Cassation dismissed the appeal on 11 November 1997. It noted that the applicant failed to appeal to the Court of Appeal sitting in full when its president rejected the request to hear six witnesses for the defence (Articles 333 § 2, 335 § 2 and 170 § 2 of the Code of Criminal Procedure). It also noted that it did not appear from the minutes that any interruption of the taking of evidence had ever occurred during the hearing. It considered that the Court of Appeal had sufficiently motivated its judgement and held that the plea of impartiality of the judges was not, according to Greek law, a ground for quashing the judgment of the Court of Appeal.