ITEMID: 001-71023
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: ADMISSIBILITY
DATE: 2005
DOCNAME: BANFIELD v. THE UNITED KINGDOM
IMPORTANCE: 1
CONCLUSION: Inadmissible
JUDGES: Josep Casadevall;Nicolas Bratza
TEXT: The applicant, Mr Paul Banfield, is a United Kingdom national who was born in 1967 and is detained at HM Prison, Wakefield. The respondent Government are represented by their agent, Mr J. Grainger, of the Foreign and Commonwealth Office, London.
The facts of the case, as submitted by the parties, may be summarised as follows.
The applicant entered the Metropolitan police force in 1985, and transferred to the Cambridgeshire police in 1989. He was promoted to sergeant in 1998.
On 21 June 2000 the applicant was convicted of sexual offences against women, including rape, and sentenced to a total of 18 years’ imprisonment. Three of the offences were committed whilst the applicant was on duty. His victims were young women in their 20s who had been detained at the Cambridge police station for minor offences. The applicant was the custody sergeant responsible for those women. While on duty at the police station, he sexually assaulted two of the women and raped the other. Two of the offences (burglary with intent to rape and rape) were committed by the applicant after his victim had informed him, when he was on duty in uniform in Cambridge, that she had been burgled some time previously. She gave him her name and address. The applicant subsequently entered the woman’s house in the middle of the night and raped her.
The trial judge described the assaults committed by the applicant whilst on duty as “the most gross breaches of trust and duty”.
On 27 June 2000, the applicant was dismissed from the police force by the Chief Constable. On that date he had 14 years and 40 days of pensionable service.
On 27 September 2001, the Home Secretary on the request of the police authority issued a certificate of forfeiture under Regulation K5 of the Police Pensions Regulations 1987 (“the Regulations”). The letter accompanying the certificate stated:
“The Secretary of State considered whether the offences, which Mr Banfield was convicted of, were liable to lead to a serious loss of confidence in the public service. In reaching his decision he took account of the circumstances leading up to the offences and conviction, the sentences imposed by the court and the media publicity given to the case.
The Secretary of State considers the conviction on the offences of rape, indecent assault and burglary to be very serious; as it clearly constitutes the betrayal of important positions of trust, especially as three of the offences were committed while Mr Banfield was custody sergeant. The gravity of the offences is well illustrated by the judge’s comments.
The Secretary of State also considers that Mr Banfield abused his position as a police officer, especially as the offences clearly constitute the betrayal of an important position of trust for personal satisfaction.
He takes the view that as an officer of fourteen years’ service, Mr Banfield’s actions and conviction and the reporting of these, are liable to lead to a serious loss of confidence in a public service. The Secretary of State has decided therefore to issue a certificate which will allow the authority to forfeit Mr Banfield’s pension. ...”
On 28 February 2002 the Complaints and Custody Visitors Committee of the Cambridgeshire Police Authority heard representations from the applicant as to why he should not forfeit his pension. The applicant was represented at that hearing by a solicitor. At the conclusion of the hearing, the applicant was notified that 75% of his pension would be forfeited; the remaining 25% represented his own contributions.
The applicant appealed to the Crown Court, as provided for by Regulation H5 of the Regulations. A hearing was originally listed for 18 October 2002. However, the applicant was at that time seeking judicial review of the Legal Services Commission’s refusal to grant him civil legal aid for the purposes of the appeal. The hearing was accordingly adjourned pending the determination of the applicant’s claim for judicial review. That claim was dismissed on 6 March 2003 on the ground, inter alia, that it stood no prospects of success.
The applicant’s appeal to the Crown Court was subsequently heard by the Recorder of Leeds on 28 and 29 April 2003, and judgment was given on 4 June 2003. The Recorder held that the forfeiture of the applicant’s pension did not represent a double penalty and did not otherwise unlawfully interfere with the applicant’s Convention rights. In support of the conclusions, he noted, amongst other matters:
“A police officer’s pension is partly contributory but substantially publicly funded. It stands to represent the public’s gratitude for good public service given by the officer during his years of service, and an honourable police officer is entitled to that pension as of right. It must follow that if a police officer becomes a criminal the public must be entitled to say that he should not be rewarded as though he was a responsible and decent officer. If an officer’s criminality is such that it can only be likely to undermine the confidence of the public in the police as a service, then he cannot be rewarded for having produced that situation.
In my judgment it is almost impossible to find circumstances in which public confidence is more likely to be undermined than in the present case. Some of the applicant’s attacks on women took place when they were in his care as custody sergeant at a police station. In addition, he used information coming to him as a police officer to prey on women outside the police station. Such conduct runs the very considerable risk of causing women not to trust their local police.”
The Recorder did, however, request further evidence as to the basis on which it had been calculated that the applicant’s contributions represented only 25% of his pension. As a result of the information provided, the Recorder reduced the amount of the applicant’s pension ordered to be forfeit to 65%.
The Recorder commented at the end of his judgment that, although the applicant had been obliged to present his own case, he had done so admirably and could not have been better represented by a lawyer.
The applicant’s application for permission to apply for judicial review of the Crown Court’s decision was refused by Mr Justice Davis on 3 October 2003 on the following grounds:
“2.1 The applicant’s application for legal aid was refused, for reasons which Collins J. has already decided cannot be attacked. The applicant may have been a litigant in person, but there is no question of inequality of arms or other unfairness: on the contrary, all the points that the applicant (who had ample time to prepare himself) wished to argue were fully debated before the Recorder of Leeds (and indeed the applicant partially succeeded). I note, in passing, that the Recorder observed that the applicant presented his case very ably and that he could not have been better represented by a lawyer.
2.2 There is no infringement of Article 1 [of Protocol No. 1]. The forfeiture of the pension can be justified by reference to the public interest, and a fair balance was struck and proportionality achieved, in the outcome of this case. No lack of proportionality arises from the fact that the applicant had already been sentenced to an 18-year term or other matters now advanced by him. As for Azinas v. Cyprus, that is clearly distinguishable: in that case the relevant statute provided for mandatory forfeiture of accrued pension rights, with no allowance for discretion. That is not this case. ...
2.6 In substance this claim is an appeal challenging the correctness of the Recorder of Leeds’ decision. But in my view the judge’s reasoning was correct in all relevant respects.”
The written notification of the judge’s decision included a note that:
“Where the judge has refused permission a claimant or his solicitor may request the decision to be reconsidered at a hearing by completing and returning form 86B within 7 days of the service upon him of this notice.”
The applicant did not apply for reconsideration of the decision at a hearing.
Regulation K5 of the Police Pensions Regulations 1987 provides, so far as relevant, as follows:
“(4) [A] police authority ... may determine that [a] pension be forfeited, in whole or in part and permanently or temporarily as they may specify, if the grantee has been convicted of an offence committed in connection with his service as a member of a police force which is certified by the Secretary of State either to have been gravely injurious to the interests of the State or to be liable to lead to serious loss of confidence in the public service.
(5) ... the police authority in determining whether a forfeiture should be permanent or temporary and affect a pension in whole or in part, may make different determinations in respect of the secured and unsecured portions of the pension; but the secured portion of such a pension shall not be forfeited permanently and may only be forfeited temporarily for a period expiring before the grantee attains state pensionable age or for which he is imprisoned or otherwise detained in legal custody. ”
Home Office Circular 56/98 gives guidance on forfeiture of police pensions. Annex B sets out the three stages of the procedure. The first stage is for the police authority to identify a case where an officer has committed an offence in connection with his or her service as a member of a police force. The second stage is for the Home Secretary to consider whether the officer’s offence was either gravely injurious to the interests of the State or liable to lead to serious loss of confidence in the public service. The Circular provides:
“A person’s rights to a police pension are part of the remuneration to which his/her service has entitled him/her and it is not axiomatic that a certificate will be issued. Forfeiture is an additional penalty which should not be added automatically to whatever sentence the Court has imposed. In deciding whether to issue a certificate therefore, the Home Secretary attaches a greater weight to the words “serious loss of confidence in the public service” than the harm inevitably caused by any police officer or former police officer who commits a crime. The Home Secretary will take into account:
- The seriousness with which the Court viewed the offence (as demonstrated by the punishment imposed and the sentencing remarks);
- the circumstances surrounding the offence and investigation;
- the seniority of the officer or former officer (the more senior, the greater the loss of credibility and confidence);
- the extent of publicity and media coverage; and
- whether the offence involved:
an organised conspiracy amongst a number of officers, active support for criminals, the perversion of the course of public justice, the betrayal of an important position of trust for personal gain, and/or the corruption or attempted corruption of junior officers.”
The third stage of the procedure is the decision by the police authority whether or not the pension should be forfeited and the determination of the extent of the forfeiture. The Circular states that the courts have ruled that the pension may be forfeited by no more than 75%, the remainder reflecting an officer’s own contributions. It continues “As certificates are likely to be issued only in serious cases, it follows that substantial forfeiture (say, 30-75%) would normally be imposed.”
Factors which might influence the extent of forfeiture include those listed above which reflect the gravity of the officer’s conduct, mitigating factors, illness and assistance given to the police during the investigation or following conviction.
As to the amount of pension which can be forfeited, the Lord Chief Justice (Lord Bingham) explained in the case of Whitchelo v. Secretary of State for the Home Department (11 March 1997):
“Regulation K5(5) draws a distinction between the secured and the unsecured portions of a pension. The secured portion of the pension fund is that which represents the officer’s own contributions. The unsecured portion represents a sum which would in ordinary circumstances be contributed out of public funds. It is understandable that a measure of protection should be guaranteed for the secured part. The unsecured part does not enjoy the same measure of protection. It is nonetheless a very serious step to deprive a former police officer of the unsecured portion of his pension since that represents a part of the reward for his service. It is plain, in my judgment, that an officer or former officer is not to be deprived even of the unsecured portion of his pension unless the condition permitting such forfeiture is clearly shown to be satisfied.”


ITEMID: 001-79413
LANGUAGEISOCODE: ENG
RESPONDENT: BGR
BRANCH: CHAMBER
DATE: 2007
DOCNAME: CASE OF REZOV v. BULGARIA
IMPORTANCE: 4
CONCLUSION: Violation of Art. 6-1
JUDGES: Peer Lorenzen
TEXT: 6. At the time of the events, the applicant, a journalist, was the regional correspondent for Vratza for the national newspapers “Trud” and “Noshten Trud”.
7. A newspaper article, contributed by the applicant, was published in “Noshten Trud” in its issue no. 119 of 21-22 June 1995 under the title “Defendants [charged with] kidnapping call for [criminal proceedings against] the police officers who arrested them” (“Подсъдими за отвличане поискаха съд за полицаите, прибрали ги в ареста”).
The text of the article read as follows:
“The lawyers of the five defendants in the case regarding the kidnapping of nurse Mrs G. petitioned the Pleven Military Prosecutor's Office to open a preliminary investigation against three [policemen] from the Vratza District Police Directorate. The [defendants'] case is [currently] being heard by the Vratza District Court.
Police officer V. and policemen T. and B. participated in the arrest of the abductors on 23 November [1994], but disguised as drivers of the luxury cars of the local businessman Mr P. The owner of a chain of establishments ... had gone to the police, had claimed that he had been kidnapped and had named his abductors.
[Later] that night his men [wearing] bullet proof jackets with police insignia and carrying machine guns raided the residence of the alleged abductors. With the consent of the three policemen they took the arrestees to the mountain range near Vratza. [There they held them for] two days and beat them with metal rods after which they took them to the police station. The relatives of the injured and the [abductors'] medical certificates provide evidence as to the rage of their attackers. Charges were brought against the five abductors, among who is Mr A. ... who was recently sentenced to three years' imprisonment in [a related case]. He had been charged with organising the abduction of the nurse and the businessman. His case had been separated from those of the other [accused]. The Vratza District Court ruled that the Pleven Military Prosecutor's Office has three days to decide whether there is enough evidence [to justify] the opening of a preliminary investigation against the [three policemen].”
8. On 28 June 1995 policeman B. filed a complaint against the applicant and petitioned the Vratza District Prosecutor's Office to open criminal proceedings against him for libel of an official during or in connection with the exercise of his duties or functions.
9. The applicant was summoned by the Vratza District Prosecutor's Office on 29 June 1995 and gave a written statement. He stated that he had simply reported on a request made by the lawyer of the alleged abductors during a hearing in the criminal proceedings before the Vratza District Court whereby he had demanded that the criminal proceedings be initiated against the police officers. The applicant also stated that one of the witnesses in the proceedings before the Vratza District Court had made a similar request to the Prosecutor's Office.
10. Subsequently, the Vratza District Prosecutor's Office obtained a copy of the court transcript which showed that one of the witnesses, the father of one of the accused, had given testimony implicating certain policemen in the beating of their son, but had not named policeman B.
11. On 19 July 1995 the case file was reassigned to the Sofia District Prosecutor's Office.
12. The Sofia District Prosecutor's Office issued instructions to the police on 4 August 1995 to interview the applicant in order to identify the source of his information and the basis for his claims that policeman B. had participated in the arrest of the alleged abductors.
13. The applicant was questioned once more on 21 August 1995. He confirmed that his article was based on statements made by the lawyer of the alleged abductors and on a petition filed on 22 May 1995 by one of his clients, Mr G., requesting that proceedings be initiated against the arresting officers. He claimed that in the said petition, a copy of which had been shown to the applicant, it had been stated that policeman B. had been one of the three policemen who had been present and had not intervened when the men of the local businessman had beaten them up.
14. The police prepared a report on 22 August 1995 in which they detailed their additional findings. It noted that they had obtained a copy of the petition filed on 22 May 1995 by Mr G. and that therein it had only been claimed that policeman B. was one of several policemen present when Mr G. had been brought to the police station for questioning, had threatened him verbally and had made him sign several blank statement sheets. The report also claimed that after having shared their additional findings with the applicant the latter had realised his mistake and had expressed a readiness to apologise to policeman B.
15. On 28 August 1995 the case file was transferred back to the Sofia District Prosecutor's Office.
16. On an unspecified date in September 1995 the Sofia District Prosecutor's Office refused to open a preliminary investigation against the applicant as it found that there was insufficient evidence of a criminal offence. Policeman B. appealed against the decision on 2 October 1995.
17. By decision of 23 October 1995 the Sofia City Prosecutor's Office quashed the decision of the lower-standing Prosecutor's Office as it found that the evidence against the applicant was sufficient to warrant the opening of a preliminary investigation against him and remitted the case with instructions that such proceedings be initiated.
18. On 10 November 1995 the Sofia District Prosecutor's Office opened a preliminary investigation against the applicant for libel of a public official during or in connection with the exercise of his duties or functions committed in print [Article 148 § 2 in connection with § 1 (2) and (3) and Article 147 § 1 of the Criminal Code (CC)]. A restriction was also placed on the applicant not to leave his place of residence without the consent of the Prosecutor's Office, which was not lifted until the end of the criminal proceedings against him. The case file was then transferred for further investigation by the First District Investigation Division with the following instruction: “The investigation must perform the following: Procedurally document the offence.”
19. On 17 September 1996 policeman B. and an acquaintance of his were questioned.
20. On 19 September 1996 the applicant was charged with libel through falsely incriminating a public official during or in connection with the exercise of his duties or functions committed in print by another public official [Article 148 § 2 in connection with § 1 (2) and (3) and Article 147 § 1 of the CC]. He was questioned on the same day and then again on the 26th of the month. On both occasions he reiterated his previously given statements in that he had relied on statements and information received from third persons and expressed a readiness to apologise to policeman B. if he had in fact been misled.
21. The results of the preliminary investigation were presented to the applicant and policeman B. on 26 September 1996. The case file was then transferred to the Sofia District Prosecutor's Office.
22. On 18 October 1996 the Sofia District Prosecutor's Office remitted the case to the investigation stage because it found serious deficiencies in the investigation. In particular, that there was no information regarding the status of policeman B. as a public official and regarding the nature of the offence which the applicant had allegedly claimed to have been committed by the policeman.
23. Subsequently, on an unspecified date, the investigation obtained a copy of the employment contract of policeman B.
24. On 23 February 1998 the charges against the applicant were amended to libel of a public official during or in connection with the exercise of his duties or functions through dissemination of disreputable facts in print by another public official [Article 148 § 2 in connection with § 1 (2)(4) and Article 147 of the CC]. On the same day he was also questioned and the preliminary investigation was presented to him.
25. On 3 June 1998 the preliminary investigation was presented to policeman B. and on the next day, the 4th, the case file was transferred to the Sofia District Prosecutor's Office.
26. On 7 October 1998 the Sofia District Prosecutor's Office filed an indictment with the Sofia District Court against the applicant for libel of a public official during or in connection with the exercise of his duties or functions through dissemination of disreputable facts in print by another public official [Article 148 § 2 in connection with § 1 (2)(4) and Article 147 of the CC].
27. On 10 November 1998 a judge-rapporteur of the Sofia District Court remitted the case back to the Prosecutor's Office for correction of serious procedural deficiencies such as to indicate the offence with which the applicant was being charged in reference to the facts of the case and what his intent had been.
28. The charges against the applicant were slightly amended on 16 February 1999 but remained libel of a public official during or in connection with the exercise of his duties or functions through dissemination of disreputable facts in print by another public official [Article 148 § 2 in connection with § 1 (2)(4) and Article 147 of the CC]. He was also questioned on the same day.
29. The preliminary investigation was presented to policeman B. on 10 March 1999 and to the applicant on 15 March. The case file was transferred to the Sofia District Prosecutor's Office on the next day, 16 March 1999.
30. On 30 March 1999 the Sofia District Prosecutor's Office filed a new indictment with the Sofia District Court against the applicant for libel of a public official during or in connection with the exercise of his duties or functions through dissemination of disreputable facts in print by another public official [Article 148 § 2 in connection with § 1 (2)(4) and Article 147 of the CC].
31. On 26 April 1999 a judge-rapporteur of the Sofia District Court remitted the case back to the Prosecutor's Office for correction of a serious procedural deficiency. Namely, she found that it was still not clear for what offence the applicant was being tried because the charge brought against him on 19 September 1996 for libel through falsely incriminating a public official during or in connection with the exercise of his duties or functions committed in print by another public official was still standing.
32. On 25 May 1999 the Sofia District Prosecutor's Office dropped the charge of libel through falsely incriminating a public official during or in connection with the exercise of his duties or functions committed in print by another public official.
33. On an unspecified date the Sofia District Prosecutor's Office filed a new indictment with the Sofia District Court against the applicant for libel of a public official during or in connection with the exercise of his duties or functions through dissemination of disreputable facts in print by another public official [Article 148 § 2 in connection with § 1 (2)(4) and Article 147 of the CC].
34. On 30 July 1999 a judge-rapporteur of the Sofia District Court set a date for the first court hearing for 1 October 1999.
35. The hearings of 1 October, 5 November and 22 December 1999 were adjourned due to non-attendance of various parties. The applicant was ill for the first hearing, his lawyer could not attend the second and for the third hearing both the applicant and policeman B. could not reach Sofia due to heavy snowfall.
36. At the court hearing on 17 February 2000 the Sofia District Prosecutor's Office petitioned the Sofia District Court to remit the case for correction of a serious procedural deficiency as it claimed that there was still a lack of clarity as to what the applicant was being charged with. The court refused and proceeded to hear the case. It also recognised policeman B. as a civil claimant. The hearing was adjourned so as to allow the parties to collect and present additional documents and evidence.
37. On 21 March 2000 an amendment to the CC entered into force (see below, Relevant domestic law), which had the effect of reducing the statute of limitations for libel to two years.
38. At the next hearing on 30 March 2000 the representative of the Prosecutor's Office petitioned the court to discontinue the proceedings due to the expiration of the statute of limitations. The Sofia District Court granted the request and discontinued the criminal proceedings against the applicant.
39. Prior to March 2000 Article 148 of the CC envisaged a punishment of up to three years' imprisonment and a public reprimand for the offence of libel disseminated in print of a public official during or in connection with the exercise of his duties or functions by another public official during or in connection with the exercise of his duties or functions [Article 148 § 2 in connection with § 1 (2)(4)]. The statute of limitations was five years [Article 80 § 1 (4)] and it was a publicly prosecuted offence (Article 161 § 1).
40. Following the amendments of March 2000 the punishment for the above stated offence was changed to a fine of between five to fifteen thousand Bulgarian levs [BGN: approximately between 2,564 and 7,692 euros (EUR)] and a public reprimand [Article 148 § 2 in connection with § 1 (2)(4)]. As a result, the statute of limitations fell to two years [Article 80 § 1 (5)]. It also became a privately prosecuted offence (Article 161 § 1).
41. The relevant part of the State Responsibility for Damage Act of 1988 (the “SRDA”) provides that the State is liable for damage caused by the organs of the investigation, the prosecution and the courts for having unlawfully charged a private person with an offence if (1) he/she is declared innocent or (2) the initiated criminal proceedings are terminated because (a) the deed was not perpetrated by the said person or (b) the perpetrated deed is not an offence or because (3) the criminal proceedings were initiated after the expiration of the statute of limitations for the offence or after the deed had been amnestied [section 2 (2)].
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-115312
LANGUAGEISOCODE: ENG
RESPONDENT: LVA
BRANCH: ADMISSIBILITY
DATE: 2012
DOCNAME: STAROVOITOVS v. LATVIA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: David Thór Björgvinsson;George Nicolaou;Ineta Ziemele;Krzysztof Wojtyczek;Päivi Hirvelä;Vincent A. De Gaetano;Zdravka Kalaydjieva
TEXT: 1. The applicant, Mr Vadims Starovoitovs, is a Latvian national, who was born in 1968 and lives in Rīga. He was represented before the Court by Ms J. Kvjatkovska, a lawyer practising in Rīga.
2. The Latvian Government (“the Government”) were represented by their Agent, Mrs I. Reine, who was succeeded by Agent Mrs. K. Līce.
3. The facts of the case, as submitted by the parties, may be summarised as follows.
4. On 8 April 2004 the applicant was remanded in custody, suspected of having committed a number of robberies.
5. On 26 August 2004, before the Latgale District Court, the applicant pleaded guilty and, in a judgment of 30 August 2004, the court convicted the applicant and sentenced him to eight years’ imprisonment. The applicant submitted an appeal, which he later withdrew. The judgment of the lower court came into force on 20 April 2005.
6. The applicant states that in April 2004, when his detention order was adopted, he informed the judge that prior to his arrest he had worked for three years as a security guard in a private company. He asked to be placed in special detention facilities for former members of law-enforcement institutions. The judge dismissed his request because he was not able to prove that he had been employed by the Ministry of the Interior.
7. After his arrival at the Central Prison, and later in Valmiera Prison, he informed the prison guards about his former employment.
8. On 5 April 2005 his cellmates in the Central Prison found out about his former employment and therefore, after a conflict in the cell, the applicant was transferred to another cell. After other cellmates had found out about the applicant’s previous employment, and also the fact that, according to informal rules in the prison, he had the lowest “social status” (“левый” as stated by the applicant) during the night of 20 April 2005 he was ill-treated by them and in the morning he was transferred to another cell. On 30 April 2005 he was again transferred because his cellmates had refused to share a cell with an inmate of the lowest social status.
9. On 7 June 2005 the applicant was transferred to Valmiera Prison and placed in a common cell with other inmates. He states that during June and July he wrote several letters to the Governor of Valmiera Prison raising doubts about his safety in the prison, but that no measures were taken. In September 2005 the Prisons Administration dismissed a request submitted by the applicant’s mother for him to be transferred to another prison.
10. At the Government Agent’s request, the Ministry of Justice provided the following information, supported by copies of letters and decisions.
11. From 8 April 2004 to 7 June 2007 the applicant was held in detention in the Central Prison in Rīga. When the final judgment in the applicant’s criminal case took effect he was transferred to Valmiera Prison.
12. On 26 and 29 April 2005 the applicant and his mother asked the Prisons Administration to transfer the applicant to a prison in Rīga. The requests were motivated by the family situation, namely the mother’s poor health and the fact that the applicant had little opportunity to see his wife and child. In June 2005 the Prisons Administration dismissed the request.
13. On 29 July 2005 the applicant complained to the Prosecutor General about, inter alia, the potential threats he would face if other inmates found out about his former employment with a security company.
14. On 8 and 14 September 2005 the applicant and his mother repeatedly asked the Prisons Administration to transfer the applicant to Matīsa or Brasa Prison in Rīga. In addition to the reasons previously given, they cited the fact that the applicant had worked in a security company and therefore feared that other inmates might find out. The applicant stated, inter alia, that at the moment he was keeping the situation in his cell under control, but he feared that the situation might change after his transfer to a less lenient prison regime where he would have to share the common areas with other inmates.
15. On 16 September the Prisons Administration asked the security company to provide information about the applicant. On 20 September 2005 the Prisons Administration informed the applicant’s mother that once the details of the applicant’s previous employment with a security company had been established, the applicant ought to be transferred to specialised detention facilities intended for former members of law-enforcement establishments in Rīga.
16. On 10 October 2005 the head of the Security Department of the Prisons Administration, having analysed the information that from 1 March 2001 until 30 November 2003 the applicant had been employed by a security company, decided that for security reasons the applicant should be transferred to Matīsa Prison in Rīga. That decision was put into effect on 17 October 2005.
17. On 25 July 2005, following the murder of an inmate at Valmiera Prison, members of the Prisons Administration special forces unit began a search of all the cells in Valmiera Prison. During the search, the inmates were ordered to leave their cells and gather in the prison yard.
18. According to the applicant, the inmates were ordered to wait in an uncomfortable position for three hours in direct sunlight. All attempts to move resulted in the officers kicking the inmates and beating them with batons. After the search, the applicant returned to his cell, where everything had been turned upside down and some of his belongings were missing.
19. On 26 July 2005 he asked Valmiera Prison administration to explain on what basis special measures were being used against him. He also asked for his missing belongings to be returned.
20. On 29 July 2005 the applicant complained about the search to the Office of the Prosecutor General, and asked it to investigate the lawfulness of the measures used by the Valmiera Prison Administration.
21. On 4 August 2005 the prosecutor informed the applicant that his complaint had been forwarded to the Prisons Administration and that he would be informed of the results of the investigation in due course.
22. According to the applicant the administration of Valmiera Prison offered to transfer the applicant to another prison in Rīga in exchange for the applicant withdrawing his previous complaints about Valmiera Prison. In a letter dated 23 August 2005 the applicant informed the Prisons Administration that he had settled the matter with Valmiera Prison administration, which had compensated him for his lost belongings.
23. On 12 February 2006 the applicant again complained to the Office of the Prosecutor General about the search on 25 July 2005.
24. On 12 April 2006 the Prisons Administration informed the applicant that the Specialised Public Prosecutor’s Office had not found any violations by members of the special forces unit during the search on 25 July 2005.
25. According to the information the Ministry of Justice and the prosecutor’s office had provided to the Government Agent, after the search carried out by the special forces unit in Valmiera Prison, several inmates complained that the special forces had inflicted bodily injuries on them and that the medical unit had failed to provide prompt medical assistance. During the internal investigation launched by the Prisons Administration it was established that on the day of the search five inmates had asked for medical assistance and the next day eleven inmates had done so. The applicant was not among them.
26. In his letter of 29 July 2005 addressed to the prosecutor’s office (a copy of which has been provided by the Government) the applicant described the situation in Valmiera Prison during the search. He stated that he had observed from the window of his cell intolerable behaviour by members of the special forces unit and officers of Valmiera Prison. He also stated that he and his cellmates had voluntarily obeyed the orders given by the special unit but those who had disobeyed had been beaten and kicked. In general the applicant asked Valmiera Prison to investigate the activities of all those who had participated in the search.
27. On 5 August 2005 seven inmates (the applicant not being among them) submitted complaints to the prosecutor’s office concerning the activities of the special forces unit, and asked for criminal proceedings to be instituted. In September 2005 the prosecutor’s office dismissed the complaints but on 5 April 2006, at the Ombudsman’s request, the latter decision was quashed and criminal proceedings were instituted. At the time the Government observations were submitted the investigation was still ongoing.


ITEMID: 001-68652
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: CHAMBER
DATE: 2005
DOCNAME: CASE OF ALINAK v. TURKEY
IMPORTANCE: 3
CONCLUSION: Violation of Art. 10
TEXT: 9. The applicant was born in 1952 and lives in Ankara. He is a lawyer and a former member of the Turkish Grand National Assembly.
10. The applicant wrote a novel entitled “The Heat of Şiro” (Şiro'nun Ateşi). The book was based on real events which took place in Ormaniçi village in the province of Şırnak. The book was published in September 1997 by the Berfin Publishing Company.
11. On 14 October 1997 the public prosecutor at the Istanbul State Security Court requested the seizure of copies of the book. The public prosecutor contended that the content of the book incited hatred and hostility by making distinctions between Turkish citizens based on grounds of their ethnic or regional identity.
12. On 14 October 1997 a single judge of the State Security Court accepted the submissions of the public prosecutor and made an interim order for the seizure of copies of the first edition of the book. In its decision (no. 1997/442), the State Security Court held that the book, by attributing extremely disgusting acts to the security forces, identified with names and rank, incited people to hatred and hostility by making distinctions between Turkish citizens based on grounds of their ethnic or regional identity. The court further held that, while artistic expression fell within freedom of expression, that freedom was not absolute and that the dissemination of distasteful and disgusting texts by way of a novel could not be considered to be artistic expression.
13. According to the applicant, copies were then seized. However, the seizure protocol drafted by the police and signed by the owner of the publishing company on 15 October 1997 recorded that copies of the book were not found.
14. The Government in their observations drew attention to following passages on pages 202 and 203 of the book:
“... Ah, I wish I were strong like before so that I could catch Mizrak in the meadow of Bana. Then he would have understood what the world is like. I would have stripped him under the summer sun; I would have had him walk before Kümeyt and whipped him all day long.
- Then how would you be any different from those tyrants? No matter who does it, cruelty is an ugly thing. Whether it is you or the fox. It does not matter. Cruelty is such a dishonourable thing that, whoever does it, is not a human being.
- I swear that I would turn him inside out. If I had only caught him then he would have understood. I swear upon your head that I would have put a rope around his neck and walked him naked all around Ankara, then I would have skinned him and filled him up with salt, as an example to all tyrants.
- Then you, Şiro, would become the Mizrak of the Bana. Our Mizrak or somebody else's Mizrak, what difference does it make? People like Mizrak should not exist in Bana, Ankara, Damascus or anywhere else. These kind of people contaminate the world. They destroy love and brotherhood.
- I beg you Brother, why do you talk like this? There is no other way to fight these tyrants! You have to talk to them in their own language; there is no other way!
- I used to think just like you, Şiro. However, I went there and realised that Mizrak is not alone.
- See, you have to make all of them disappear; you have to kill all of them.
- You cannot terminate it by killing them. There are too many to kill. Whomsoever you want to kill is only the cog of the machine. Even if you break the cog of the machine there are too many degenerated people out there waiting to become the cog! When you are struggling with the first ones, the same old tyrannising machinery continues to function, and this goes on forever. We have to stop this machinery! That is what we should do. There is no other way. Then you would see how they are running away like cows.
- Where is that power?
- Is there anyone stronger then us, Şiro? When all human beings stand up against this tyrannising machine, see if the machine still continues to function? Then they would see whether it is them or us who are stronger.”
15. On 20 October 1997 the applicant appealed against the seizure order. The applicant averred that the seizure order constituted an unjustified interference with his right to freedom of expression guaranteed by the European Convention on Human Rights. However he gave an incorrect case number on his appeal. As a result it appears that the appeal court did not consider the facts of his case, but that of another (relating to a poetry book). On 5 November 1997 the Istanbul State Security Court dismissed the applicant's appeal and upheld the order, together with the single judge's reasons for issuing it.
16. On 21 November 1997 the public prosecutor attached to the Istanbul State Security Court filed a bill of indictment against the applicant and requested that he be convicted and sentenced under the Prevention of Terrorism Act 1991.
17. During a hearing held on 18 February 1998 before the Istanbul State Security Court, the applicant requested the court to annul the interim seizure order against his book. The matter was adjourned to the next hearing, fixed for 15 April 1998.
18. On 2 September 1999 Law No. 4454 concerning the suspension of pending cases and penalties in media-related offences entered into force.
19. On 24 September 1999 the Istanbul State Security Court suspended the proceedings brought against the applicant. The court, however, did not determine the applicant's request to annul the interim seizure order against his book.
20. The relevant domestic law and practice in force at the material time are outlined in the following judgment and decision: Zarakolu and Belge Uluslararası Yayıncılık v. Turkey, nos. 26971/95 and 37933/97, § 23, 13 July 2004, and Alınak v. Turkey (dec.), no. 40287/98, 31 January 2002.
VIOLATED_ARTICLES: 10


ITEMID: 001-103696
LANGUAGEISOCODE: ENG
RESPONDENT: POL
BRANCH: CHAMBER
DATE: 2011
DOCNAME: CASE OF WELKE AND BIAŁEK v. POLAND
IMPORTANCE: 3
CONCLUSION: No violation of Art. 6-1 and 6-3;Remainder inadmissible
JUDGES: Lech Garlicki;Ledi Bianku;Nicolas Bratza;Päivi Hirvelä;Sverre Erik Jebens;Zdravka Kalaydjieva
TEXT: 6. The applicants were born in 1974 and 1977 respectively and live in Kielce.
7. The first applicant (Ms D. Welke), had a school friend, Ms M.B., who was resident in the Netherlands.
8. In January 2003 the Central Investigation Bureau (“CIB”; Centralne Biuro Śledcze) of the Police was informed by the German authorities about a parcel containing cocaine, which had been dispatched in Brazil and addressed to Ms E.B. in Kielce, Poland. On 3 February 2003 the Chief Police Commissioner (Komendant Główny Policji) authorised the covert surveillance of the parcel on the basis of section 19b § 1 of the Police Act. On 4 February 2003 the parcel was intercepted by officers of the CIB. They opened the parcel and found that it contained, in particular, fourteen plastic bags containing a white powder substance hidden by twos in seven cases. The police experts tested the substance and established that it was cocaine. The officers replaced the drugs with a similar-looking substance.
9. On 5 February 2003 the Chief Police Commissioner ordered the covert operation (kontrola operacyjna w postaci podsłuchu pomieszczeń). It appears that the police placed a secret recording device in the parcel.
10. On 6 February 2003 the parcel was delivered to Ms E.B. She was a friend of Ms M.B.’s late mother. On the same day Ms E.B. informed the first applicant that she had received a parcel from Brazil addressed to M.B. The first applicant telephoned her friend who confirmed that she was expecting a parcel and asked the first applicant if she could keep it for her. The first applicant agreed.
11. On the same day the first applicant went to collect the parcel. She and Ms E.B. partly opened it and found tee-shirts and cardboard cases containing chain necklaces. They did not find anything else in the parcel.
12. Subsequently Ms Welke took the parcel home, where she met her boyfriend Mr Białek (the second applicant). The applicants opened the parcel and examined its contents. Later on, they both left the flat to call Ms M.B. from a phone box. The first applicant put all contents of the parcel in a plastic bag together with parts of the original parcel indicating the addresses of the sender and the recipient. Then the first applicant hid the plastic bag in her room.
13. On 6 February 2003 at around 8 p.m. the police arrested the applicants as they were leaving the flat. The officers then searched the flat. The first applicant, at the request of the officers, surrendered the plastic bag with all its contents. Examination of the contents revealed that in each of the seven cases containing chain necklaces were hidden two transparent plastic bags containing a white powder substance. The applicants were charged with drug-trafficking offences.
14. On 8 February 2003 the Kielce Regional Prosecutor from the Organised Crime Department opened a criminal investigation into the alleged transfer of cocaine from Brazil to Poland. He relied on classified material provided by the Chief Police Commissioner and the information gathered by the CIB officers.
15. On 8 February 2003 the Kielce District Court remanded the applicants in custody on reasonable suspicion that they had committed the drug-trafficking offences. It had regard to the evidence obtained so far in the case, in particular the witnesses’ statements, the classified evidence, the expert reports and the results of the search. The court noted that the applicants’ statements contradicted the other evidence in the case. On 23 June 2003 the Kielce Regional Court decided to end the applicants’ detention and to release them on bail. The bail was paid on the following day and the applicants were released. The court imposed non-custodial preventive measures on them.
16. A significant part of the evidence gathered in the case was classified as confidential (poufne). On 9 April 2003 both applicants consulted the classified evidence and other evidence. They did not lodge any motions in respect of the evidence and did not make any comments on the investigation.
17. On 18 April 2003 the prosecution filed a bill of indictment against the applicants with the Kielce Regional Court. They were charged with trafficking in 971 grams of cocaine. The prosecutor established the facts of the case on the basis of classified evidence, expert reports in chemistry and dactyloscopy, the results of the search of the flat and statements made by Ms E.B. and her friend Ms I.B., and partly on the basis of statements made by the applicants.
18. Part of the case file and the written reasons for the bill were classified as it contained information covered by professional secrecy (tajemnica służbowa). The prosecutor asked the court for the defendants and their counsel to be allowed to consult the reasons for the bill of indictment, in accordance with the rules laid down in the Protection of Classified Information Act. Furthermore, invoking Article 360 § 1 (3) of the Code of Criminal Procedure (“CCP”), the prosecutor requested that the entire hearing be conducted in camera on account of the important State interests involved.
19. The first applicant had two defence lawyers and the second applicant had one. On 12 and 26 May 2003 respectively the applicants and their counsel consulted the bill of indictment in the secret registry of the Kielce Regional Court.
20. On 27 May 2003 the President of the 3rd Criminal Division of the Regional Court authorised the applicants, their counsel and the prosecutor to consult the record of the opening of the parcel, the transcript of the secret recordings and photographic evidence. On 28 May 2003 counsel for the first and second applicants consulted those materials in the secret registry. They were informed that they would be criminally liable in the event of their failure to respect the confidentiality of the information.
21. The first hearing was set for 27 May 2003. At that hearing the court allowed the prosecutor’s request to conduct the trial in camera, having regard to the important State interests involved as provided for in Article 360 § 1 (3) of the CCP. The applicants’ counsel did not object to the prosecutor’s request. The court directed the persons present in the courtroom (the applicants, their counsel and three police officers) that they were under an obligation to keep confidential all information disclosed during the hearing. The applicants and their counsel could consult the case file in the secret registry of the court.
22. The Kielce Regional Court held six hearings on the following dates: 27 May, 12 and 23 June, 22 July, 10 September and 8 October 2003. The Regional Court’s bench was composed of one professional judge and two lay judges.
23. At the first hearing, held on 27 May 2003, the applicants pleaded not guilty. They refused to testify, but answered some questions from the court and their counsel. The trial court heard as witnesses Ms E.B., Ms I.B. and two other persons, friends of the applicants, who had been arrested with them.
24. On 11 June 2003 the trial court received a copy of the decision of the Warsaw Regional Court of 12 February 2003 authorising the Chief Police Commissioner of 5 February 2003 to order the secret recordings.
25. On 12 June 2003 the court provided the applicants with the transcript of secret recordings, on which they refused to comment. At the hearing held on 22 July 2003 the trial court heard the secret recordings made by the CIB. According to the applicants, the recordings were of very poor quality. The conversation between the first applicant and Ms E.B. was completely incomprehensible, and only vague extracts of the conversation between the applicants could be heard, interrupted by noises and rattling.
26. At the hearings held on 10 September and 8 October 2003 the court heard CIB officers involved in the investigation, including those who had opened the parcel on 4 February 2003. The court authorised them to testify in respect of the facts covered by the duty of professional secrecy.
27. At the hearing held on 10 September 2003 the first applicant requested the trial court to reverse its earlier decision to conduct the proceedings in camera. She submitted that as a consequence of that decision her defence rights had been limited because she had not been allowed to make notes from the file. Her counsel did not take a stand on the request, stating that it was the first applicant’s personal view. The prosecutor objected to the request, claiming that the grounds for the decision to exclude the public remained relevant. He also argued that the first applicant’s defence rights were duly respected as she could personally consult the classified part of the case file. The Regional Court dismissed the request to reverse the earlier decision to conduct the proceedings in camera as the grounds originally invoked for that decision remained fully valid.
28. On 15 October 2003 the Kielce Regional Court gave judgment. It found the applicants guilty of having participated in the transit of cocaine through Poland in concert with other persons, and sentenced them to one year and six months’ imprisonment and a fine of PLN 1,500. It further ordered them to make a payment of 500 PLN to a local association fighting drug addiction and to reimburse the State’s costs incurred in the proceedings. The written reasons for the judgment were classified as confidential and deposited in the secret registry of the court. The applicants’ counsel were informed accordingly and notified of their right to consult the written reasons. They filed an appeal without consulting the written reasons for the judgment.
29. When establishing the facts, the Regional Court excluded the evidence obtained by means of the secret recordings ordered by the Chief Police Commissioner on 5 February 2003. The Regional Court observed that the Police Commissioner’s order had not been endorsed by a court within five days as required by section 19 § 3 of the Police Act. Accordingly, the evidence obtained on the basis of that order was unlawful and could not be used in the criminal proceedings against the applicants. On the other hand, the Regional Court confirmed that the secret surveillance of the parcel and the replacement of the cocaine with an unspecified powder substance had been effected in accordance with the Police Act and the relevant Ordinance of the Minister of the Interior.
30. On the basis of the available evidence, in particular, various statements made by the applicants during the investigation and during the trial, the Regional Court found that at the time when the parcel had been at their disposal the applicants had known that it contained drugs. The court found that the applicants had acted intentionally with a view to transferring the drugs through Poland to the Netherlands. Thus, their guilt had been sufficiently established.
31. In their appeal, the applicants alleged breaches of several provisions of criminal procedure committed by the prosecution and the court, arbitrary assessment of evidence and disregard for the in dubio pro reo principle. They argued that the excluded evidence should have been omitted as the “fruit of the poisonous tree”, whereas the court had actually based the conviction on that evidence. Further, they submitted that the applicants’ right to defend themselves had been impaired because access to the classified evidence had been very difficult, and neither the applicants nor their lawyers had been allowed to make copies or notes of the written reasons for the judgment.
32. On 5 February 2004 the Kraków Court of Appeal held a hearing at which the prosecutor requested the court to conduct the proceedings in camera. The applicants’ counsel left the issue to the court’s discretion. The Court of Appeal decided pursuant to Article 360 § 1 (3) of the CCP to allow the prosecutor’s request since the examination of the appeal would not be possible without consideration of the classified evidence. The Court of Appeal further decided to supplement the evidentiary material. It noted that the trial court had not determined the exact circumstances of the removal of the cocaine from the parcel and its replacement by a similar substance and decided, to this end, to hear four police officers who had been involved in the covert interception of the parcel.
33. On 10 March 2004 the Kraków Court of Appeal held a hearing in camera. It heard evidence from three police officers and established that the cocaine had been removed from the parcel and replaced with a similar substance by the police.
34. The prosecutor requested the Court of Appeal to hear the secret recordings and argued that the Regional Court had erred in excluding that evidence. The Court of Appeal rejected that request, noting that it could not examine the relevant decision of the Regional Court since the first-instance judgment had not been appealed against by the prosecutor (reformatio in peius).
35. On the same date, after deliberations, the Court of Appeal amended the judgment of the Regional Court by changing the legal classification of the offence to one of “attempted” transit of drugs (usiłowanie nieudolne) as the police had secretly removed the drug from the parcel and replaced it with a similar substance. It accordingly reduced the applicants’ sentence to one year’s imprisonment. The judge rapporteur presented orally the main reasons for the judgment. The written reasons for the judgment were classified as confidential and could only be consulted in the secret registry of the court.
36. The Court of Appeal confirmed that the applicants had taken part in the transit of cocaine through Poland. The first applicant had collected the parcel from the addressee and kept it in order to hand it over to a person indicated by Ms M.B.. She had also informed Ms M.B. of the collection of the parcel. The second applicant had assisted the first applicant in the process.
37. The Court of Appeal held, inter alia, as follows:
“The applicants’ counsel are wrong to plead that the accused had no intention to take part in the transit of the drugs through Poland. This was sufficiently established by the [admitted] evidence, and in particular by the statements of the accused themselves. (...)
The applicants’ counsel are wrong to claim that the accused’s right to defend themselves was restricted on account of the fact that part of the evidence was classified, or that the judgment was the result of the fact that the judges had retained in their mind the content of excluded evidence. Both those situations are a simple consequence of the application of the relevant regulations, namely the regulation regarding classified information and the [regulation on] judicial review of the legality of evidence. ...
3. The assertion that there was no equality of arms because part of the evidence was classified is incorrect. Such evidence was not withheld from the counsel, as they were able to consult it in the same manner as the prosecutor, and the restrictions on disclosure of classified material were equally applicable to both parties.
4. (...) The consultation of classified evidence meant accepting certain conditions, including the prohibition on taking notes on the contents of such evidence; nonetheless those restrictions were not of such a nature that they could be considered to limit the rights of the defence. Counsel could memorise the content of the evidence they consulted, then use it, while respecting the requirements of confidentiality, either when pleading at the closed hearings or with due diligence in their written submissions. (...) Those were then not limitations on the rights of the defence, but rather certain impediments in conducting the defence, in any case impediments of a minor degree. In the Court of Appeal’s view, those limitations were necessary since part of the evidence was classified. If they [those limitations] were not applied, the interests protected by the regulation on classified information would be affected. [Those limitations] are present in every case concerning classified information, and thus alleging shortcomings in this respect does not concern just this particular case but relates generally to the principle of the determination of criminal charges based on evidence covered by the regulation on classified information. That would then be a claim of unconstitutionality in respect of the determination of such cases due to the limitation by that regulation of the constitutionally protected rights of the defence (Article 42 § 2 of the Constitution), which is far-reaching, unjustified and – for the Court of Appeal – unconvincing. If those arguments (or rather groundless assertions) of the author of such allegations were to be shared, then the determination of cases involving classified material would be ruled out. (...).”
38. The Court of Appeal rejected the applicants’ claim that the trial court had based the conviction on the excluded evidence. In this respect it noted, inter alia:
“The allegation that the Regional Court’s ruling was influenced by the content of the excluded evidence, i.e. the evidence obtained secretly by the police and the explanations of the accused related to that evidence, is incorrect. Firstly, it is not uncommon in criminal proceedings that some evidence is removed from the scope of evidentiary material constituting the basis for a ruling. (...) Ensuring that judges did not know the evidence that was excluded would mean extinguishing those procedural acts in which such evidence was examined, removing the records of such information from the files and restarting every trial before a different panel of the court. That would not be reasonable and it is not provided for by law. (...) In other words, the Court of Appeal examines whether the evidence the Regional Court took as the basis for its ruling was sufficient for it to give the ruling or whether there was insufficient evidentiary basis for it. The Court of Appeal considers that there was sufficient evidence to give the judgment, and thus the judgment [of the Regional Court] has adequate evidentiary basis (with one reservation in respect of the presence of the drug in the parcel). The allegation that the judges [of the Regional Court] were influenced by the content of excluded evidence had no significance for the content of the judgment.”
39. The applicants lodged cassation appeals. The second applicant’s lawyer submitted, inter alia, that the Court of Appeal had not referred to the arguments raised in the appeals, that in its assessment of evidence the court had infringed the principles of impartiality, presumption of innocence and in dubio pro reo. They repeated their arguments, submitted to the Court of Appeal, that the unlawfully obtained evidence, although eventually excluded by the first-instance court, had been presented during the trial as admissible evidence, which must have unfairly prejudiced the outcome of the proceedings. The defence also argued that since the evidence obtained by means of the secret recordings had been excluded at first instance, there had been no reason to hold the appeal proceedings in private.
40. On 20 October 2004 the Supreme Court, sitting in camera in a single judge formation, dismissed the applicants’ cassation appeals, finding both of them manifestly ill-founded.
41. Article 360 § 1 of the Code of Criminal Procedure sets out an exception to the principle that court hearings should be held in public. Article 360 § 1 (3) of the Code provides for the court to order that all or part of the hearing be held in camera if a public hearing might disclose matters which should remain secret in the light of the State interests at stake.
Article 361 § 1 of the CCP stipulates that when a hearing is held in camera an accused may request that a person of trust of his choice be present at the hearing. That rule does not apply to cases where there is a risk of disclosure of a State secret (Article 361 § 2).
Article 100 § 5 of the CCP, which concerns the delivery of a judgment, provides:
“If the case has been heard in camera because of important State interests, instead of written reasons, notice will be served to the effect that the reasons have been prepared.”
42. The 1999 Protection of Classified Information Act (ustawa o ochronie informacji niejawnych) establishes a comprehensive set of rules concerning, inter alia, definitions and categories of classified information, the authorities responsible for protecting classified information and the rules on access to it. Section 23 § 1 of the Act provides for two categories of classified information – state secret (tajemnica państwowa) and professional secret (tajemnica służbowa). The latter information may be rated as confidential (poufne) or restricted (zastrzeżone).
43. The Ordinance of the Minister of Justice of 18 June 2003 on the handling of transcripts of questioning and other documents or items covered by state secrecy, professional secrecy or secrecy related to the exercise of a profession or function (Rozporządzenie Ministra Sprawiedliwości z dnia 18 czerwca 2003 r. w sprawie sposobu postępowania z protokołami przesłuchań i innymi dokumentami lub przedmiotami, na które rozciąga się obowiązek zachowania tajemnicy państwowej, służbowej albo związanej z wykonywaniem zawodu lub funkcji) entered into force on 1 July 2003.
The Ordinance provides that in accordance with the 1999 Protection of Classified Information Act the president of a court or the head of the relevant prosecutor’s office may classify a case file or particular parts of it as “top secret" (ściśle tajne), “secret" (tajne), “confidential” or “restricted” if it includes information classified as state secrets, professional secrets or secrets related to the exercise of a profession or function (§§ 7-8).
The case file, other documents or items classified as “top secret”, “secret” or “confidential” are deposited in the secret registry (kancelaria tajna) of a court or prosecutor’s office (§ 9.1).
The Ordinance provides that classified files, documents or items shall be made available to parties, counsel and representatives only at the order of a court (the president of a court) or the head of the relevant prosecutor’s office (§ 10.1).
§ 10.3 of the Ordinance prohibits the making of copies of and taking of notes from classified files and documents.
A person authorised to consult the classified documents is notified of the obligation to respect secrecy and the prohibition on making copies and notes, and swears in writing to keep the information received confidential (§ 12).
NON_VIOLATED_ARTICLES: 6
NON_VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-71473
LANGUAGEISOCODE: ENG
RESPONDENT: HUN
BRANCH: CHAMBER
DATE: 2005
DOCNAME: CASE OF TOTH, MAGYAR AND TOTHNE v. HUNGARY
IMPORTANCE: 4
CONCLUSION: Violation of Art. 6-1 (length of proceedings);Remainder inadmissible;Non-pecuniary damage - financial award
TEXT: 4. The applicants were born in 1958, 1965 and 1958 respectively, and live in the same household in Szeged, Hungary.
5. On account of his modest means and the financial burden of his minor daughter’s upbringing, on 16 December 1996 the first applicant lodged a request for a special family allowance (rendszeres nevelési segély) with the Mayor of Szeged. In February 1997 the request was refused; the applicant filed an administrative appeal. On 10 April 1997 the General Assembly of the Szeged Municipality upheld the Mayor’s decision.
6. On 14 May 1997 the first applicant brought an action before the Szeged District Court for the judicial review of the General Assembly’s decision. On 27 October 1997 the Supreme Court dismissed his motions for bias against the Szeged District Court and the Csongrád County Regional Court.
7. On 9 February and 29 April 1998 hearings were held. Following proceedings concerning the first applicant’s renewed motions of bias, on 2 April 1999 the case was transferred to the Regional Court, because of a change in the law concerning courts’ jurisdiction.
8. On 28 June 1999 the Regional Court dismissed the action. On 13 August 1999 the first applicant challenged this decision before the Supreme Court. On 13 January 2000 the Supreme Court invited him to complete his motion, which he did on 24 February 2000. On 16 February 2001 it decided to deal with the motion in appellate, rather than review proceedings.
9. On 22 February 2001 the Supreme Court quashed the decision of 28 June 1999 and remitted the case.
10. In the resumed proceedings, the judges of the Csongrád County Regional Court declared themselves biased. On 20 November 2001 the Supreme Court appointed the Bács-Kiskun County Regional Court to hear the case. That court appointed a legal-aid lawyer for the first applicant on 4 July 2002.
11. On 17 September 2002 the Bács-Kiskun County Regional Court quashed the General Assembly’s decision and remitted the case to the first administrative body. The respondent authority appealed.
12. On 9 July 2003 the Budapest Court of Appeal held a hearing but the parties did not appear. On 17 September 2003 it upheld the Regional Court’s decision.
13. In the resumed administrative proceedings, on 13 January 2004 the first applicant was granted the allowance sought. His quantitative appeal was dismissed by the second-instance administrative authority on 14 May 2004.
14. On 21 June 2004 the applicant sought judicial review. On 13 December 2004 the Békés County Regional Court dismissed his action.
15. In 2001 and 2002 the applicants, acting on behalf of their minor children, lodged several requests with the Mayor of Szeged for another type of social benefit (gyermekintézményi étkeztetési térítési díj támogatása). On 16 July 2001 and 11 July 2002, respectively, their requests were refused. The General Assembly of the Szeged Municipality dismissed their administrative appeals on 5 October 2001 and 16 September 2002, respectively. The applicants sought judicial review before the JászNagykunSzolnok County Regional Court.
16. The Regional Court dismissed their action on 15 September 2003, holding that the administrative authorities’ decisions had been in compliance with the local regulations. The latter excluded the disbursement of the allowance sought if the requesting individuals received other social benefits (rendszeres gyermekvédelmi támogatás) – which was the applicants’ case.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-87209
LANGUAGEISOCODE: ENG
RESPONDENT: POL
BRANCH: CHAMBER
DATE: 2008
DOCNAME: CASE OF PIASKOWSKI AND OTHERS v. POLAND
IMPORTANCE: 4
CONCLUSION: Violation of Article 6 - Right to a fair trial
JUDGES: David Thór Björgvinsson;Ján Šikuta;Lech Garlicki;Ledi Bianku;Mihai Poalelungi;Nicolas Bratza
TEXT: 4. The applicants were born in 1947, 1953, 1953 and 1953 respectively and live in Łódź.
5. On 7 December 2001 the Consumer Protection Association (Związek Obrony Konsumentów) acting on behalf of the applicants lodged a claim for payment with the Warszawa Regional Court (Sąd Okręgowy).
6. In a letter of 22 May 2003 the applicants’ legal adviser complained about the delay in the proceedings and asked for a hearing date to be fixed.
7. On 15 December 2003 the court held the first hearing.
8. From January to March 2003 the court held 2 hearings.
9. On 10 February 2004 the Warszawa District Court (Sąd Rejonowy) declared the defendant insolvent. Consequently, at a hearing held on 4 March 2004 the trial court stayed the proceedings ex lege.
10. The proceedings were resumed on 9 May 2007.
11. On 11 May 2007 the Warszawa Regional Court discontinued the proceedings in the case.
12. On 4 February 2005 the Consumer Protection Association acting on behalf of the applicants lodged a complaint with the Warszawa Court of Appeal (Sąd Apelacyjny) under section 5 of the Law of 17 June 2004 on complaints about a breach of the right to a trial within a reasonable time (Ustawa o skardze na naruszenie prawa strony do rozpoznania sprawy w postępowaniu sądowym bez nieuzasadnionej zwłoki) (“the 2004 Act”).
13. The applicants sought a ruling declaring that the length of the proceedings before the Warszawa Regional Court had been excessive. They asked for an award of just satisfaction in the amount of 10,000 Polish zlotys (PLN) (approx. EUR 2,500).
14. On 15 March 2005 the Warszawa Court of Appeal dismissed the complaint. The court found that the 2004 Act produced legal effects as from the date of entry into force (17 September 2004), its provisions applied retroactively to all proceedings in which delays had occurred before that date and had not yet been remedied. It acknowledged that there had been a delay at the initial stage of the proceedings but found that this situation had ceased to exist when the 2004 Act entered into force.
15. The relevant domestic law and practice concerning remedies for the excessive length of judicial proceedings, in particular the applicable provisions of the 2004 Act, are stated in the Court’s decisions in the cases of Charzyński v. Poland no. 15212/03 (dec.), §§ 12-23, ECHR 2005-V and Ratajczyk v. Poland no. 11215/02 (dec.), ECHR 2005-VIII.
VIOLATED_ARTICLES: 6


ITEMID: 001-23250
LANGUAGEISOCODE: ENG
RESPONDENT: AUT
BRANCH: ADMISSIBILITY
DATE: 2003
DOCNAME: GRAF v. AUSTRIA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Nicolas Bratza
TEXT: The applicant, Normann Graf, is a German national of Austrian origin, who lives in Köln (Germany). He is represented before the Court by Mr H. Liebscher, a lawyer practising in Salzburg (Austria).
The facts of the case, as submitted by the applicant, may be summarised as follows.
On 29 June 1989 the Salzburg Regional Court (Landesgericht) instituted preliminary investigation proceedings against the applicant and thirty-four other suspects on suspicion of large-scale fraud and breach of trust in the context of investments in a real estate fund. They were suspected of having sold so called “partial house ownership certificates” to several thousand investors with the assurance that their value was secured by real property, but in fact they had sold the real property in 1986 and misappropriated the proceeds of the sale.
As of the beginning of 1990 the investigating judge was relieved of all other business and two junior judges completing their training period (Richteramtsanwärter) were assigned to assist him. In May 1990 one of them took over as the new investigating judge.
During the preliminary investigations, which concerned a network of more than 300 firms, about 1,800 bank accounts were examined and about 8,000 volumes of documents were seized and studied. A special computer programme was designed in order to cope with the large volume of data. Most of the time was consumed by the preparation of an expert opinion, whereby the team of accounting experts first had to clear the balance sheets of the companies, most of which were intertwined. A change in the team of experts became necessary in 1990 due to the potential bias of some of its members. The team was restructured again in 1993. In April 1995 the experts delivered their opinion.
In 1993 the applicant, who had his place of residence in Germany since 1986, obtained German citizenship.
In 1994 the Austrian authorities issued an international arrest warrant against the applicant. It appears that this warrant is still valid.
In 1995 the Austrian authorities requested the German authorities to take over the criminal proceedings against the applicant.
In March 1995 the Cologne Public Prosecutor opened criminal proceedings against the applicant.
On 18 December 1996 the Cologne Public Prosecutor sent a letter to the applicant and informed that he had discontinued the criminal proceedings against him.
On 4 August 1995, even before the Investigating Judge formally closed the preliminary investigations, the Salzburg Public Prosecutor’s Office (Staatsanwaltschaft) preferred a bill of indictment (Anklageschrift) of 441 pages against the applicant and eight of his co-accused. However, since the applicant had no residence in Austria, the indictment could not be served on him.
On 28 January 1997 the Public Prosecutor in Traunstein (Germany) refused to open criminal proceedings against the applicant as the prosecution had become time-barred (Verfolgungsverjährung) in Germany.
Meanwhile, the co-accused had been convicted by the Austrian courts and had been sentenced to prison sentences from seven to nine years. However, the proceedings against the applicant are still pending due to the impossibility of serving the bill of indictment on the applicant.


ITEMID: 001-71920
LANGUAGEISOCODE: ENG
RESPONDENT: SWE
BRANCH: ADMISSIBILITY
DATE: 2005
DOCNAME: NAMND v. SWEDEN
IMPORTANCE: 4
CONCLUSION: Inadmissible
TEXT: The applicant, Kjell Nämnd, is a Swedish national, who was born in 1948 and lives in Falun. He is represented before the Court by Anders Grahn, a lawyer practising in Falun. The Government are represented by their Agent, Mrs Inger Kalmerborn, of the Ministry for Foreign Affairs.
The facts of the case, as submitted by the parties, may be summarised as follows.
In the beginning of the 1990’s the applicant owned and ran several private limited companies. He was also employed in a leading position in a private limited company, called HN, which was not owned by him.
On 18 October 1994 the applicant was arrested and charged with bribery. A search was carried out at his home and office, during which approximately 90 files were seized. On 20 October 1994 the District Court of Sundsvall (Sundvalls Tingsrätt) remanded the applicant in custody. He, a cosuspect N, who was the managing director of HN, and three witnesses were heard, subsequent to which on 3 November 1994 the applicant was released. On 28 March 1995 the applicant was informed that he was also suspected of instigating a breach of trust. During the first half of 1995 the investigation authorities went through various documents and heard witnesses and, on 18 July 1995, the preliminary investigation report, which ran to 1,500 pages, was communicated to the applicant who was given until 25 August 1995 to submit comments and request additional investigative measures. At the applicant’s request, the time-limit was extended until 15 September 1995 and he was re-heard on 26 September 1995. N was also re-heard.
On 16 October 1995 the prosecution submitted an indictment to the District Court containing two counts. The first count concerned bribery alleging that the applicant in 1992, representing a private limited company, bought shares on two occasions from and via N in the company HN. The shares were sold at a price exceeding the real value by about 2 million Swedish kroner (SEK), equivalent to approximately 209,765 euros (EUR), in order to procure an improper profit for N. N was charged with taking the bribe. The second count concerned instigating a gross breach of trust, alleging that the applicant had made N grant the applicant’s private limited company an irregular loan from HN to pay the bribe. The loan was covered up by misleading book-keeping. By granting the loan, N abused his position as managing director of HN, to the detriment of his principal, and he was also charged with a gross breach of trust.
On 23 October 1995 the District Court invited the applicant to state within two weeks what evidence he wished to submit. The information was submitted by the applicant on 16 January 1996, almost three months later.
On 1 April 1996 the District Court scheduled the hearing to be held on 22 May 1996. On 30 April 1996 N requested that the hearing be adjourned. The applicant did not object. Instead the hearing was held on 23 October 1996 during which the applicant, N and two witnesses were heard and extensive written material submitted.
By judgment of 20 November 1996, the District Court convicted the applicant and N, in accordance with the indictment, pursuant to the Penal Code (brottsbalken) chapter 10 § 5, chapter 23 § 4 and chapter 17 § 7. However, as regards the second count, it did not consider that the circumstances were sufficiently serious to be qualified as “gross”. The applicant and N were each sentenced to one year’s imprisonment.
On 19 December 1996, the applicant appealed against the judgment to the Court of Appeal (Hovrätten för Nedre Norrland). N also appealed.
On 18 August 1997 the Court of Appeal scheduled a hearing for 7 and 8 October 1997. On 19 September 1997, N requested that the hearing be adjourned as he wished to call a new witness who would be in Alaska at that time. The applicant informed the court that he too wished to call that witness. Their request was granted and the hearing rescheduled for 6 and 7 April 1998. On 31 March 1998 the prosecutor submitted the records from interviews held by the police with this witness. The following day, N requested that the hearing be adjourned as he did not have sufficient time to go through the new documentation. The applicant and the prosecutor did not object and, accordingly, the hearing was re-scheduled for 17 and 18 November 1998. During the hearing the applicant, N, and four witnesses were heard and extensive written material submitted, including new material submitted by the applicant and a statement from an expert witness relied on by N.
On 17 December 1998 the judgment was upheld by the Court of Appeal, which stated inter alia:
“The penal value of the crimes of which [the applicant and N] have been found guilty clearly exceeds one year’s imprisonment. No personal circumstances with regard to [the applicant and N] have emerged which constitute sufficient reasons for choosing any other sanction than imprisonment. As the district Court has found, both of them shall therefore be sentenced to imprisonment.
Certainly, between the commission of the crimes and the sentencing, a longer period of time has elapsed than appears justifiable by reference to the nature and scope of the crimes. However, even in view of this and of what has further emerged in the case, the Court of Appeal finds that the sentences determined by the District Court appear well balanced.”
On 18 January 1999 the applicant and N requested leave to appeal to the Supreme Court (Högsta Domstolen). In the period between February 1999 and May 2000, the applicant and N were granted a number of extensions of the time-limits to submit their grounds of appeal. The applicant submitted his grounds of appeal on 29 March 1999. The applicant claimed that he completed his appeal on the same day. The Government claimed that the applicant did not complete his appeal until 5 May 2000. It is undisputed, however, that he submitted his claim for legal costs on the latter date. N completed his appeal on 17 May 2000 and submitted his claim for legal costs on 8 September 2000. On 27 September 2000 the Supreme Court refused leave to appeal.