ITEMID: 001-58559
LANGUAGEISOCODE: ENG
RESPONDENT: ITA
BRANCH: GRANDCHAMBER
DATE: 2000
DOCNAME: CASE OF LABITA v. ITALY
IMPORTANCE: 1
CONCLUSION: No violation of Art. 3 with regard to alleged ill-treatment;Violation of Art. 3 with regard to lack of effective investigation;No violation of Art. 3 with regard to conditions of transfer;Violation of Art. 5-3;Violation of Art. 5-1;Violation of Art. 8;Not necessary to examine Art. 6-3;Violation of P4-2;Violation of P1-3;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings
JUDGES: Luzius Wildhaber;Paul Mahoney
TEXT: 10. The applicant was arrested on 21 April 1992 in connection with an investigation involving forty-six people under a warrant issued by the Trapani District Court on 18 April 1992. He was suspected of being a member of a mafia-type organisation in Alcamo and of running a financial company on behalf of his brother-in-law, who was believed to be the leader of the main mafia gang in the area (Article 416 bis of the Criminal Code makes it an offence to be a member of a mafia-type organisation).
The accusations against the applicant were based in particular on statements made by one B.F., who also stood accused of being a member of a mafia-type organisation but had become a pentito (a former mafioso who has decided to cooperate with the authorities). B.F.'s information about the applicant had been obtained from one G.D., who had been killed by the Mafia on 25 October 1989, and had, in turn, received the information from another deceased victim of the Mafia, F.M.
11. The applicant was initially detained at Palermo Prison, where he spent thirty-five days in isolation.
12. His first application for bail was dismissed by the Trapani District Court on 6 May 1992.
The District Court found in particular that although the statements made by B.F. regarding the applicant's involvement in the Mafia had provided no information or objective evidence about the applicant's actual role and activity, they could nonetheless constitute sufficient grounds to justify his detention, having regard to the credibility and reliability of the various statements B.F. had made concerning other people or events connected with the Mafia (it applied the “global credibility” criterion – attendibilità complessiva).
It added that B.F. had identified the applicant from a photograph and provided information concerning his exact role in the mafia-type organisation. He had indicated that the applicant, who was the brotherinlaw of the head of one of the Alcamo mafia clans, ran a financial company and, along with another person whom B.F. had previously identified as being a member of the Mafia, was a co-owner of a management company that ran a discotheque.
The Trapani District Court also found that the applicant's detention was warranted by the need to protect witnesses, since most of the evidence took the form of oral testimony and there was therefore a risk of its being lost through pressure being brought to bear on the witnesses.
13. On 20 July 1992 the applicant was transferred with fifty-four other alleged mafiosi to the prison on the island of Pianosa.
14. On an unspecified date, he appealed to the Court of Cassation against the decision of 6 May 1992. He argued in particular that he had been detained solely on the basis of B.F.'s statements, which were unsupported by any factual evidence. In addition, he said that the District Court had refused to accept that he was not the manager of a financial company and had taken that allegation as evidence that he was an executive in local finance and as supporting the accusation that he was a branch treasurer for the Mafia. In fact, he was merely an employee of the company and had even been the subject of disciplinary proceedings. However, the Court of Cassation dismissed his appeal on 2 October 1992.
15. The applicant made a further application for bail to the investigating judge (giudice per le indagini preliminari), contending that there were not sufficient grounds for keeping him in detention, but it was dismissed on 29 December 1992.
16. The applicant's appeal to the Trapani District Court was dismissed on 8 February 1993 on the ground that Article 275 § 3 of the Code of Criminal Procedure created a presumption that the continued detention of suspects charged with belonging to a mafia-type organisation was necessary and that it was therefore for the person seeking bail to produce specific, concrete evidence to rebut that presumption. The District Court considered that the applicant's arguments – such as that related to the length of his detention – were of a general nature and had been rejected in earlier cases.
17. On application by the prosecution, the investigating judge at the Trapani District Court made an order on 8 April 1993 pursuant to Article 305 § 2 of the Code of Criminal Procedure extending the maximum permitted period of detention pending trial.
18. Meanwhile, other pentiti had stated during the course of the investigation that they did not know the applicant.
19. The applicant appealed to the District Court against the order of 8 April 1993, contending that the impugned order was null and void as the application for an extension had not been served beforehand on his lawyer and the court had given only general, not specific, reasons.
20. The Trapani District Court dismissed the applicant's appeal on 22 June 1993. It held that all the law required was that the parties should be heard at an adversarial hearing and that had been done in the instant case. There was no requirement that the application should be formally served beforehand.
As to whether the impugned measure was necessary, the District Court found that although the reasoning in the order was somewhat succinct, it had pointed to the risk of evidence being tampered with, particularly in view of the special nature of the offence (membership of a mafia-type organisation), and the danger presented by all the accused, who were suspected of belonging to a criminal organisation that engaged in serious crime such as homicide. Furthermore, the prosecution had given a full explanation as to why it had been necessary for the purposes of the investigation to make the application: namely because of the need to carry out complex banking and fiscal inquiries to clarify the extent to which the accused controlled the area. The District Court also noted that the nature of the crime concerned meant that the investigation had to cover the mafiatype organisation as a whole, and, therefore, necessarily, all of the accused.
21. On 28 June 1993 the applicant appealed to the Court of Cassation contending that the rights of the defence had been infringed. However, his appeal was dismissed on 18 October 1993.
22. On 2 October 1993 the applicant was committed for trial on a charge of being a member of a mafia-type organisation. The public prosecutor's office sought a three-year prison sentence.
23. In a judgment of 12 November 1994, which was lodged with the registry on 9 February 1995, the Trapani District Court acquitted the applicant and ordered his release unless there were other reasons why he should remain in custody.
It observed that the case against the applicant had been founded solely on statements made by B.F. on the basis of information B.F. had learnt from G.D., who had in turn obtained that information from F.M. Both sources were now dead, thus rendering any independent corroboration of B.F.'s statements impossible. The only affirmation that had been proved was that the applicant had worked at the finance company concerned, but there was no evidence that he had acted as its manager or treasurer. Indeed, that allegation had been contradicted by other witnesses and factual evidence. The District Court concluded that the applicant's guilt had not been established.
24. The judgment was delivered towards 10 p.m. The applicant, who had been in the Trapani District Court for the verdict, was brought back to Termini Imerese Prison, still in handcuffs, at 12.25 a.m.
He was not released until 8.30 a.m. because the registration officer, whose presence was necessary on the release of prisoners subject to a special prison regime, was unavailable.
25. The public prosecutor's office appealed against his acquittal.
26. In a judgment of 14 December 1995, which became final as regards the applicant on 25 June 1996, the Palermo Court of Appeal upheld his acquittal on the ground that B.F.'s statements were unsupported by other concrete evidence and had been refuted by evidence obtained during the investigation.
27. The applicant was held at Termini Imerese Prison until 20 July 1992, when he was transferred to Pianosa Prison under urgent measures taken by the Italian Government against the Mafia following the killing by that organisation of two senior judges. Pianosa Prison had previously held approximately 100 prisoners who enjoyed a less strict regime, which included the right to work on the island outside the prison. The highsecurity prisoners were held together in the “Agrippa” wing. A large number of prison warders from other penal institutions were also transferred to Pianosa Prison.
The applicant was held at Pianosa without interruption until 29 January 1993. Subsequently, he was regularly transferred for short periods to enable him to be present at the various stages of the proceedings against him.
28. The medical register kept by Pianosa Prison shows that the applicant was in good health on arrival.
29. He alleged that he was ill-treated in a number of ways, detailed below, mainly between July and September 1992 (the situation subsequently improved).
(i) He was regularly slapped and had sustained an injury to his right thumb. His testicles had been squeezed, a practice which the applicant said was systematically inflicted on all prisoners.
(ii) On one occasion the applicant was beaten and his jumper was torn. He protested. Two hours later a warder ordered him to shut up, insulted and then struck him, damaging the applicant's glasses and a false tooth.
(iii) He was manhandled on other occasions. Prisoners were allowed to put cleaning products in the corridors. Sometimes the prison warders caused the products to spill on the floor and mixed them with water, thus making the floor slippery. Prisoners were then forced to run along the corridors between two rows of warders. Those who fell were hit by warders and beaten with batons.
(iv) He was often subjected to body searches when showering.
(v) He had to wait very lengthy periods to see a doctor and remained handcuffed during medical examinations.
(vi) The warders warned prisoners that they would be subjected to reprisals if they told their lawyers or other prisoners about the treatment they were receiving.
(vii) In the presence of warders prisoners were required to bow their heads, keep their eyes to the ground, show respect, remain silent and stand to attention.
30. Lastly, the applicant said that transfers of prisoners from the prison to the courts for hearings took place in inhuman conditions: in the hold of the vessel, without air, light or food and with very poor hygiene.
31. The Pianosa Prison medical register shows that on 9 September 1992 the applicant complained of a problem with a false tooth and the prison doctor therefore referred him for examination by a dentist. In April 1993 a further request was made for an appointment with a dentist to have a loose false tooth cemented.
32. On 10 August 1993 the Pianosa Prison medical service requested xrays and an appointment with an orthopaedist following a complaint by the applicant of pain in his knees. On 22 September 1993, following tests, an orthopaedist noted problems – the medical record does not reveal their exact nature – in the applicant's knees.
33. On 17 March 1994 the dentist noted that the false tooth had completely broken and needed repair.
34. A medical report of 24 March 1995 notes calcification in the knee joint. The applicant had a scan on 3 April 1996 that revealed two small wounds resulting from traumatic injury in the upper, outer part of the knee.
35. A medical certificate dated 20 March 1996 refers to psychological disorders (asthenia, state of confusion, depression) that had started three years earlier.
36. On 2 October 1993, at a preliminary hearing before the Trapani investigating judge, the applicant and another prisoner alleged that they had suffered forms of ill-treatment such as “torture, humiliation and cruelty” in Pianosa Prison until October 1992. The applicant said in particular that he had suffered a broken finger and broken teeth. Even though the position had improved after October 1992, he complained that the overall treatment to which he had been subjected and which had been imposed on the basis of, inter alia, section 41 bis of Law no. 354 of 1975, was inhuman and emotionally draining.
37. The investigating judge informed the Livorno public prosecutor's office of the above; the public prosecutor's office opened an official inquiry (no. 629/93) and on 12 November 1993 instructed the Portoferraio carabinieri to question the applicant about the nature and duration of the illtreatment he had allegedly suffered and to obtain from him any information he had that would help to identify those responsible. It also requested the applicant's medical records.
38. The applicant was interviewed on 5 January 1994 by the Portoferraio carabinieri. He said that from the moment he arrived at Pianosa he had been subjected to “hidings, torture, acts of cruelty and psychological torture” by the warders. In particular, they would hit him in the back with their hands. When he left his cell for the exercise yard he was made to run along a corridor that had been made slippery. The warders formed a line the length of the corridor and delivered kicks, punches and baton blows. On one occasion he had protested that the warders had torn his jumper as they struck him. One of them had told him to shut up, insulted him and then hit him, damaging his glasses and a false tooth. Prisoners were violently beaten every time they left their cells. He added, however, that he was unable to recognise the warders responsible because the prisoners were obliged to keep their heads bowed in their presence. He stated lastly that the beatings had ceased in October 1992.
39. On 7 January 1994 the carabinieri sent the interview record and the applicant's medical file to the Livorno public prosecutor's office. They said that they would forward a list of the warders who had worked at Pianosa Prison at the material time later.
40. On 9 March 1995 the applicant was interviewed by the Trapani carabinieri on the instructions of the Livorno public prosecutor's office. He was shown photocopies of photographs of 262 prison warders who had worked at Pianosa Prison. The applicant said that he was unable to identify the person who had ill-treated him, but commented that the photographs had been taken before the relevant period and were only photocopies. He added that he would have had no difficulty in identifying the warder concerned had he been able to see him in person.
41. On 18 March 1995 the Livorno public prosecutor's office applied to have the complaint filed away without further action on the ground that the offenders could not be identified (perché ignoti gli autori del reato). The Livorno investigating judge made an order to that effect on 1 April 1995.
42. On 5 September 1992 the Livorno judge responsible for the execution of sentences had sent a report to the Minister of Justice and other relevant prison and administrative authorities on prison conditions in Pianosa.
43. The report followed an initial inspection of the prison in August 1992 in which it was noted in particular that there had been repeated violations of prisoners' rights and a number of incidents of ill-treatment, both in the special “Agrippa” wing and in the ordinary wings. By way of example, it was noted in the report that:
(i) hygiene was appalling;
(ii) prisoners' correspondence, though permitted subject to censorship, was totally blocked and telegrams were delivered to prisoners only after substantial delays;
(iii) prisoners were forced to run to the exercise yard, and probably beaten with batons on the legs;
(iv) prisoners were sometimes beaten with batons and subjected to other forms of ill-treatment (for example, one prisoner was allegedly forced to undress completely and to do floor exercises (flessioni) before being subjected to a rectal search, which, according to the judge responsible for the execution of sentences, had been wholly unnecessary as the prisoner had just finished doing work in the presence of other warders; the prisoner concerned, who was slapped while getting dressed, had then consulted the prison doctor; that night, three warders had subjected him to a beating in his cell);
(v) apparently, other similar incidents had taken place subsequently, although the situation appeared to have improved more recently, probably as a result of action taken against prison warders.
44. After information and press reports began to circulate that prisoners in Pianosa Prison were being subjected to violence, the Livorno public prosecutor spent a day on the island and informed the press that he had found nothing to support the allegations.
45. Further, on 30 July 1992 inspectors for the Tuscany prison services had informed the Prison Administration Department at the Ministry of Justice that, according to information from reliable sources, there had been serious incidents of ill-treatment of prisoners at Pianosa Prison. In particular, the report referred to one incident in which a handicapped prisoner had been brought into the prison in a wheelbarrow to the jeers of the warders and another in which a prisoner had been forced to kneel before a candle.
46. In a note to the Minister's principal private secretary dated 12 October 1992, the Director-General of the Prison Administration Department at the Ministry of Justice explained that the conditions referred to by the Livorno judge responsible for the execution of sentences were due essentially to the fact that fifty-five prisoners had been transferred to Pianosa as a matter of urgency in the night of 19 to 20 July 1992. That had caused practical problems which could to a large extent explain the inconvenience that had been noted. In addition, additional problems had been caused by building works in the prison.
47. On 28 October 1992 the Director-General forwarded the conclusions of a group of experts appointed by the department to the principal private secretary to the Minister and to the public prosecutor's office. On the basis of the information supplied by prisoners questioned in the prison, the experts had found that the allegations of ill-treatment were wholly unfounded apart from the incident concerning the moving of a handicapped prisoner in a wheelbarrow, which, however, had resulted from a lack of wheelchairs in the prison.
48. Following the report by the judge responsible for the execution of sentences, an inquiry was nonetheless started and the information obtained was sent to the Livorno public prosecutor's office. Only two warders had been identified; they were suspected of offences of causing bodily harm (Article 582 of the Criminal Code) and of abuse of authority over persons who had been arrested or detained (Article 608 of the Criminal Code).
49. The public prosecutor's office sought an order for both charges to be dropped, the former because no complaint had been lodged and the latter because it was time-barred. The application was allowed with regard to the offence of causing bodily harm, but dismissed with regard to the other charge and on 20 December 1996 the investigating judge sought additional information. That inquiry is believed still to be under way.
50. In a note of 12 December 1996 – which was appended to the Government's observations in the proceedings before the Commission – the President of the court responsible for the execution of sentences in Florence said that the incidents that had taken place in Pianosa Prison had been ordered or tolerated by the government of the day. He also considered that the applicant's allegations concerning the conditions during transfers were entirely credible and that transfers of prisoners to Pianosa Prison were carried out using questionable and unjustified methods, the real purpose of which was to intimidate prisoners. He further noted that the high-security wing of Pianosa Prison had been staffed by warders from other prisons who had not been subjected to any selection process and had been given “carte blanche”. The result, according to the President of the court, was that management of that wing of the prison had initially been characterised by abuse and irregularities.
51. On 20 July 1992 the Minister of Justice issued an order subjecting the applicant to the special prison regime laid down in section 41 bis of Law no. 354 of 1975 until 20 July 1993. The Minister considered that the measure was necessary in particular because of serious public-order and safety considerations following an escalation of an aggressive and ruthless campaign by the Mafia, which had been responsible for the recent assassinations of three judges and eight policemen and for car-bomb attacks in large Italian cities. That situation made it necessary to sever connections between certain prisoners and their milieu. The applicant was subject to the measure concerned because he was of bad character and dangerous; those factors suggested that he had maintained contact with the criminal milieu which he would be able to use to issue instructions or establish links with the outside world that could in turn lead to a breakdown of public order or jeopardise security in prison institutions. In addition, it was a reasonable assumption that prisoners such as the applicant would recruit other prisoners or dominate and humiliate them in prison, just as they did in criminal organisations.
52. The order represented a derogation from the Prison Administration Act and imposed the following restrictions:
(i) a ban on the use of the telephone;
(ii) a ban on all association or correspondence with other prisoners;
(iii) censorship of all inward and outward correspondence;
(iv) a ban on meetings with third parties;
(v) restrictions on visits from members of the family (to one hour monthly);
(vi) a ban on receiving or sending sums of money over a set amount;
(vii) a ban on receiving parcels (other than those containing linen) from the outside;
(viii) a ban on organising cultural, recreational or sporting activities;
(ix) a ban on voting or standing in elections for prisoner representatives;
(x) a ban on taking part in arts-and-crafts activities;
(xi) a ban on buying food that needed cooking;
(xii) a ban on spending more than two hours outdoors.
53. These measures were subsequently extended for successive sixmonthly periods until 31 January 1995.
54. On 21 April 1992 the Trapani District Court decided, without giving specific reasons, to subject the applicant's correspondence to censorship. However, his correspondence was not monitored while he was in Termini Imerese Prison.
55. An order was also made for censorship of the applicant's correspondence by the Minister of Justice on 20 July 1992 (see paragraph 52 above).
56. The following letters were censored:
(i) the applicant's letter of 21 October 1992 to his wife (delivery of this letter was delayed by the Pianosa Prison as the prison authorities, considering the content to be suspect, first sent it to the judicial authorities);
(ii) a letter of 7 May 1993 sent to the applicant by his first lawyer (stamped by the Pianosa Prison censors);
(iii) a letter of 28 February 1993 sent by the applicant to his family (stamped by the Termini Imerese Prison censors);
(iv) a letter sent by the applicant to his wife on 2 March 1993 enclosing a certificate (the Termini Imerese Prison authorities had intercepted the letter and sent it to the Prison Administration Department at the Ministry of Justice with a request for permission to remit the letter to the applicant; as no reply was received, the letter was never remitted to him);
(v) a letter from the applicant to his family posted on 7 May 1993 (stamped by the Pianosa Prison censors).
57. On 15 September 1993, as a result of a Constitutional Court decision (no. 349 of 28 July 1993 – see paragraph 102 below), the Minister of Justice rescinded the measure regarding censorship of correspondence that had been issued in orders made under section 41 bis.
58. The applicant's correspondence nonetheless continued to be subject to censorship as a result of the Trapani District Court's decision of 21 April 1992.
59. On 21 February 1994 the Trapani District Court ordered rescission of that order, but the applicant's correspondence continued to be censored notwithstanding.
60. On 10 June 1994 the applicant reverted to the ordinary prison regime; the change entailed among other things an end to censorship. However, at least one letter (sent to the applicant by his wife on 28 July 1994) was nonetheless censored by the Pianosa Prison authorities.
61. On 13 August 1994, at the request of the Pianosa Prison authorities, an order was made by the President of the Criminal Division of the Trapani District Court, renewing censorship of the applicant's correspondence. The following letters were censored:
(i) a letter of 24 August 1994 sent to the applicant by his second lawyer (stamped by Pianosa Prison);
(ii) letters sent to the applicant by his wife on 18, 21, 29 and 30 August 1994 containing two photographs of the applicant's children (and each bearing the Pianosa Prison censors' stamp);
(iii) a letter of 31 August 1994 from the applicant to his family (stamped by Pianosa Prison);
(iv) a letter of 1 September 1994 sent to the applicant by his children (stamped by Pianosa Prison);
(v) a letter of 16 October 1994 sent to the applicant by his granddaughter (stamp illegible);
(vi) letters of 18 and 20 October 1994 sent to the applicant by his wife (stamped by Termini Imerese Prison);
(vii) a letter of 20 October 1994 apparently sent to the applicant by members of his family (stamped by Termini Imerese Prison);
(viii) an undated letter sent to the applicant by his granddaughter (stamped by Pianosa Prison).
62. As to the two letters sent to the applicant by his lawyers on 7 May 1993 and 24 August 1994, the Pianosa Prison authorities said that they could not be regarded as being correspondence with defence counsel for the purposes of Article 35 of the transitional provisions of the new Code of Criminal of Procedure (see paragraph 97 below).
63. On an application dated 9 September 1992 by the Trapani public prosecutor's office the Trapani District Court made an order on 10 May 1993 imposing preventive measures on the applicant, who was put under special police supervision and required to live at Alcamo for three years. The District Court found in particular that the applicant had been shown to be dangerous by concrete evidence: he was being investigated in connection with a very serious offence, was in detention pending trial and, along with other suspected mafiosi, held shares in a company that ran a discotheque where members of the Mafia met.
The applicant was required, inter alia:
(i) not to leave his home without informing the authorities responsible for supervising him;
(ii) to live an honest life and not to arouse suspicion;
(iii) not to associate with persons who had a criminal record or who were subject to preventive or security measures;
(iv) not to return home later than 8 p.m. or to leave home before 6 a.m., unless due cause could be shown and in all cases only after informing the authority responsible for supervising him;
(v) not to keep or carry weapons;
(vi) not to go to bars or attend public meetings;
(vii) to have on him at all times the card setting out his precise obligations under the preventive measures and a copy of the court order;
(viii) to report to the relevant police station on Sundays between 9 a.m. and 12 noon.
64. However, the District Court found that it was not possible to conclude from the evidence on the file that the company referred to had been used to launder money coming from illegal Mafia activities. It consequently made an order for severance of the proceedings relating to the attachment both of the applicant's holding in the company concerned and some of his immovable property.
65. The applicant appealed, but his appeal was dismissed on 7 December 1993.
The court of appeal noted, firstly, that a presumption arose under Law no. 575 of 15 May 1965 that a member of the Mafia was dangerous and that for the purposes of the imposition of preventive measures, such membership could be established on the basis of inferences, full proof being required only to secure a conviction. In the case before it, there was circumstantial evidence against the applicant, such as the decisions to detain him pending trial and to commit him for trial. Furthermore, B.F. had clearly stated that the applicant was both a member and the treasurer of a mafiatype organisation. There were other factors, too, such as the applicant's business relations with other mafiosi. The applicant's contact with the Mafia was also confirmed by the fact that he had seen fit to marry the sister of a mafia boss and thus to become a member of a mafia clan, which undoubtedly made it likely that he would receive requests for assistance from that criminal organisation.
66. The applicant appealed to the Court of Cassation, but that appeal was also dismissed in a judgment of 3 October 1994 on the ground that the assessment whether a person was dangerous was based on any factor which the court found to be cogent. The Trapani District Court and the Palermo Court of Appeal had established that it was likely that the applicant belonged to the Alcamo mafia clan on the basis of the evidence that had led to the applicant being kept in pre-trial detention. No appeal lay to the Court of Cassation against the verdict of the trial and appellate courts on the facts.
67. Meanwhile, on 22 May 1993 the Trapani Prefect ordered the applicant to surrender his passport. That order could not be executed as the applicant said that it had been lost. The prefect also ordered the applicant to produce his national identity card so that the words “not valid for foreign travel” could be stamped on it.
68. On 1 June 1993 the Trapani Prefect ordered the confiscation of the applicant's driving licence.
69. The preventive measures were suspended until the end of the trial and applied with effect from 19 November 1994 following the applicant's acquittal by the Trapani District Court.
70. On 13 February 1996 the applicant was refused permission to leave Alcamo to accompany his wife and one of their sons to Palermo Hospital – where they were due to undergo medical tests – on the ground that the tests did not relate to a serious illness.
71. Meanwhile, on 8 January 1996 the applicant had applied to the Trapani District Court for an order lifting the preventive measures on the ground that he had now been finally acquitted (by a judgment of 14 December 1995) and that it was impossible for him to find employment.
72. On 11 June 1996 the District Court dismissed that application. In doing so, it firstly reiterated the settled case-law of the Court of Cassation whereby matters established at trial, though insufficient to support a conviction, could, if appropriate when coupled with other evidence, nonetheless amount to serious evidence capable of proving that a person who has been acquitted might be dangerous. That, said the District Court, was the position in the case before it. It considered that the statements made by B.F. showed that the applicant had associated with the Alcamo mafia clan, as proved by the fact that his late brother-in-law had been the head of the main clan. As to his inability to find work, the court considered that it was unrelated to the preventive measures since the applicant could at any stage have sought permission to work and would have been authorised to do so, provided, of course, that the work was compatible with his obligations under the preventive measures.
73. On 7 October 1996 the applicant's identity card was returned marked “not valid for foreign travel”.
74. On an unspecified date the applicant made a further request to the Trapani District Court to rescind the preventive measures against him repeating that he had now been finally acquitted and stressing that he had always complied with the preventive measures.
75. On 21 October 1997 the Trapani District Court dismissed that application stating, firstly, that the proceedings concerning the preventive measures were quite separate from the criminal proceedings so that the acquittal had no automatic effect on the preventive measures that had already been ordered. In any event, the applicant had not shown any real change in his life-style or that he was genuinely repentant.
76. The preventive measures against the applicant ceased to apply on 18 November 1997.
77. As a result of the imposition of the special supervision measure on the applicant, the Alcamo Municipal Electoral Committee decided on 10 January 1995 to strike the applicant off the electoral register on the ground that his civil rights had lapsed pursuant to Article 32 of Presidential Decree no. 223 of 20 March 1967.
78. The applicant lodged an appeal with the Ward Electoral Board in which he contended that no reasons had been stated in the decision of 10 January 1995 and that the decision to impose preventive measures had been taken before his acquittal.
In a decision of 27 February 1995, served on the applicant on 7 March 1995, the board dismissed the appeal on the ground that the applicant had been disenfranchised by operation of law (as his civil rights had lapsed following imposition of the special supervision measure), not by a decision of the electoral committee. The applicant did not appeal against that decision.
79. On 19 November 1997, following the expiration of the preventive measures, the applicant applied to be reinstated on the electoral registers.
80. On 28 November 1997 the Ward Electoral Committee informed the mayor of Alcamo that it had authorised the applicant to take part in the imminent administrative elections scheduled to be held on 30 November 1997.
81. On 29 November 1997 the mayor notified the applicant of the electoral committee's decision.
82. On 11 December 1997 the Municipal Electoral Committee reinstated the applicant on the Alcamo electoral register.
83. On 4 February 1997 the applicant applied to the Palermo Court of Appeal for an award of compensation under Articles 314 and 315 of the Code of Criminal Procedure for his detention from 21 April 1992 to 12 November 1994, which the applicant's acquittal on 14 December 1995 showed to have been “unjust”.
84. The Court of Appeal acceded to his claim in a decision of 20 January 1998, which was lodged with the registry on 23 January 1998. Having regard to the length and particularly harsh conditions of his detention, and to the damage sustained by the applicant (to his reputation) and by his family (who had had to make long journeys for visits), it awarded him 64,000,000 Italian lire.
85. The first paragraph of Article 273 of the Code of Criminal Procedure (“CCP”) provides that “no one shall be detained pending trial unless there is serious evidence of his guilt”.
86. Article 274 CCP goes on to provide that detention pending trial may be ordered: “(a) if detention is demanded by special and unavoidable requirements of the inquiry into the facts under investigation concerning a genuine and present danger for the production or authenticity of evidence ...; (b) if the accused has absconded or there is a real danger of his absconding, provided that the court considers that, if convicted, he will be liable to a prison sentence of more than two years; and (c) where, given the specific nature and circumstances of the offence and having regard to the character of the suspect or the accused as shown by his conduct, acts or criminal record, there is a genuine risk that he will commit a serious offence involving the use of weapons or other violent means against the person or an offence against the constitutional order or an offence relating to organised crime or a further offence of the same kind as that of which he is suspected or accused ...”
87. Under Article 275 § 3 CCP, as amended by Legislative Decree no. 152 of 1991 (which became Law no. 203 of 1991) and Legislative Decree no. 292 of 1991 (which became Law no. 356 of 1991) there is a rebuttable presumption that such a necessity exists where certain offences, such as being a member of a mafia-type organisation, are concerned.
88. Article 303 CCP lays down the maximum permitted periods of detention pending trial which vary according to the stage reached in the proceedings. For the offence laid down in Article 416 bis of the Criminal Code, the periods applicable during the proceedings at first instance are one year from the beginning of the defendant's detention until the order committing him for trial and one year from the beginning of the trial until his conviction at first instance. If no committal order is made or, as the case may be, the defendant is not convicted at first instance within the relevant period, the detention pending trial ceases to be lawful and the defendant must be released.
89. However, paragraph 2 of Article 304 CCP provides that for certain offences, including the one provided for in Article 416 bis of the Criminal Code, the periods laid down in Article 303 may be extended during the hearings, the deliberations at first instance or the appeal, if the proceedings prove to be particularly complex. Article 304 provides that the length of detention pending trial must not, under any circumstances, exceed twothirds of the maximum sentence for the offence with which the defendant is charged or the sentence imposed by the first-instance court.
90. Paragraph 2 of Article 305 CCP provides: “During the preliminary investigation, the public prosecutor may request an extension of a period of detention pending trial that is about to expire where there is a serious need for precautionary measures which, in particularly complex investigations, make it absolutely necessary to extend the period of detention pending trial ...” That provision goes on to provide that such an extension may be renewed only once and that, in any event, the periods provided for in Article 303 CCP cannot be exceeded by more than half.
91. With regard to the procedures on release, on 29 March 1996 the Ministry of Justice informed all penal institutions of the need for administrative services to be provided at night time, too, to ensure not only the release of prisoners but also, among other things, the admission of suspects who had been arrested or had voluntarily surrendered to custody and the availability of emergency hospital treatment for prisoners.
92. Article 314 CCP provides that anyone who has been acquitted in a judgment that has become final – on the grounds that the case against him has not been proved, he has not committed the offence, no criminal offence has been committed or the facts alleged do not amount to an offence at law – is entitled to equitable reparation for any period he has spent in detention pending trial, provided that misrepresentations or fault on his part were not contributory factors in his being detained.
93. An application for reparation must be made within eighteen months after the judgment becomes final. The maximum award is 100,000,000 Italian lire.
94. Section 18 of Law no. 354 of 26 July 1975, as amended by section 2 of Law no. 1 of 12 January 1977, provides that power to order censorship of prisoners' correspondence vests in the judge dealing with the case – whether the investigating judge or the trial judge – until the decision at first instance and thereafter in the judge responsible for the execution of sentences. The judge may order censorship of a prisoner's correspondence in a reasoned decision; this provision does not, however, specify the circumstances in which such orders may be made.
95. In practice, censorship entails all the prisoner's mail being intercepted and read by either the judge that made the order or the prison governor or prison staff designated by him; censored mail is stamped to show that it has been inspected (see also Article 36 of the decree implementing Law no. 354 referred to above – Presidential Decree no. 431 of 29 April 1976). Censorship cannot extend to deleting words or sentences, but the judge may order that one or more letters shall not be delivered; in such cases, the prisoner must be informed immediately. This latter measure can also be ordered temporarily by the prison governor, who must, however, notify the judge.
96. Article 103 CCP forbids the seizure or any form of censorship of correspondence between a prisoner and his lawyer, provided that the correspondence is identifiable as such and unless the judge has wellfounded reasons to believe that the correspondence constitutes the substance of the offence.
97. Similarly, by Article 35 of the transitional provisions of the new Code of Criminal Procedure the rules on the censorship of a prisoner's correspondence laid down in Law no. 354 and Presidential Decree no. 431 do not apply to correspondence between a prisoner and his lawyer. However, for such correspondence to escape censorship, the envelope must be marked with the identity of both the accused and his lawyer, the fact that the lawyer is acting in that capacity and the words “correspondence for the purposes of court proceedings” (“corrispondenza par ragioni di giustizia”) signed by the sender, who must also specify the proceedings to which the letter relates. If the sender is the lawyer, his signature must be certified by the head of the Bar Association or the latter's delegate.
98. As the censorship of correspondence is an administrative act and does not affect the prisoner's personal liberty, no appeal lies to the Court of Cassation in respect of it (Court of Cassation, judgments nos. 3141 of 14 February 1990 and 4687 of 4 February 1992).
99. Section 35 of the Prison Administration Act (Law no. 354 of 26 July 1975) provides that prisoners may send requests or complaints in a sealed envelope to the following authorities:
(i) the prison governor, prison inspectors, the director-general of penal institutions and the Minister of Justice;
(ii) the judge responsible for the execution of sentences;
(iii) the judicial and health-care authorities who inspect the prison;
(iv) the president of the regional council;
(v) the President of the Republic.
100. By section 41 bis of the Prison Administration Act, as amended by Law no. 356 of 7 August 1992, the Minister of Justice is empowered to suspend application of the ordinary prison regime – as laid down by Law no. 354 of 1975 – in whole or in part if it fails to meet the standards required to preserve public order and security. He must give reasons for so doing and judicial review will lie. The provision may be applied only where the prisoner has been prosecuted for or convicted of one of the offences set out in section 4 bis of the statute. The offences concerned include those linked to mafia activities. By Law no. 446 of 28 November 1999 that provision is to remain in force until 31 December 2000.
101. Section 41 bis contains no list of the restrictions that may be imposed. They must be determined by the Minister of Justice. When first implemented, section 41 bis was construed as also empowering the Minister of Justice to censor prisoners' correspondence.
102. In its judgments nos. 349 and 410 delivered in 1993, the Italian Constitutional Court, which was examining whether that system was consistent with the principle that the legislator's powers should not be encroached upon, held that section 41 bis was compatible with the Constitution. However, it stated that by virtue of Article 15 of the Constitution a reasoned decision of the courts was required for any restriction on correspondence to be imposed. The Minister of Justice was accordingly not empowered to impose measures regarding prisoners' correspondence.
103. The power to impose preventive measures was introduced by Law no. 1423 of 27 December 1956. Such measures are intended to prevent individuals regarded as a “danger to society” from committing offences. The statute currently classifies three groups of people as a danger to society: (a) anyone who on the basis of factual evidence must be regarded as being an habitual offender; (b) anyone who on account of his conduct or life-style must be regarded, on the basis of factual evidence, as habitually deriving his income from the proceeds of crime; and (c) anyone who on account of his conduct must be regarded on the basis of factual evidence as having committed offences endangering the mental or physical integrity of minors or posing a threat to society, security or public order.
104. Section 3 of Law no. 1423/56 provides that persons who are a danger to society may be placed under special police supervision. That measure may be accompanied, if need be, by a requirement not to stay in one or more named towns or provinces or, if the person concerned is considered to be particularly dangerous, by a compulsory residence order requiring him to live in a named municipality (obbligo di soggiorno).
105. Jurisdiction to make such orders is vested exclusively in the court sitting in the provincial capital. The court sits in camera and must give a reasoned decision after hearing the representative of the public prosecutor's office and the person on whom it is proposed to impose the measure, who has the right to lodge memorials and to be represented by a lawyer. Both parties may appeal within ten days. Lodging an appeal has no suspensive effect. A further appeal lies from the court of appeal to the Court of Cassation.
106. When imposing a preventive measure, the court must fix its duration – between one and five years maximum – and specify the conditions with which the person concerned must comply.
107. Under Law no. 575 of 31 May 1965, which was amended in 1982, preventive measures in the form of an order for special supervision, compulsory residence or exclusion may be imposed on persons against whom there is evidence (indiziati) that they belong to a mafia-type organisation.
108. Law no. 327 of 3 August 1988 provides that a person can only be ordered to reside in the town where he has his domicile or residence.
109. Lastly, in cases where the trial has started, Law no. 55 of 19 March 1990 empowers the courts to suspend proceedings relating to the application of preventive measures until the conclusion of the trial.
110. Article 2 of Presidential Decree no. 223 of 20 March 1967 provides that, inter alia, persons on whom preventive measures have been imposed by a court order or an administrative decision shall be disenfranchised.
111. Article 32 § 1 (3) of that decree provides that in such cases the prefect (questore) empowered to enforce such measures shall notify the municipality where the person concerned resides of any decision entailing the loss of civil rights. The municipal electoral committee shall then remove the name of the person concerned from the electoral register, even outside one of the usual periods for updating the lists.
VIOLATED_ARTICLES: 3
5
8
VIOLATED_PARAGRAPHS: 5-1
5-3
NON_VIOLATED_ARTICLES: 3


ITEMID: 001-118337
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: CHAMBER
DATE: 2013
DOCNAME: CASE OF BÖBER v. TURKEY
IMPORTANCE: 4
CONCLUSION: Violation of Article 3 - Prohibition of torture (Article 3 - Inhuman treatment) (Substantive aspect);Violation of Article 3 - Prohibition of torture (Article 3 - Effective investigation) (Procedural aspect)
JUDGES: Guido Raimondi;Nebojša Vučinić;Paulo Pinto De Albuquerque;Peer Lorenzen
TEXT: 4. The applicant was born in 1977 and lives in Istanbul.
5. On 28 June 2003 two police officers went to the Beşiktaş district of Istanbul following a complaint by a woman, and imposed an administrative fine on a taxi driver. Subsequently, the policemen and the taxi driver commenced a verbal dispute in the presence of the applicant, who is also a taxi driver. The applicant told the police officers that he would pay the fine on his friend’s behalf. The police officers then pushed the applicant to the ground, handcuffed him and began kicking and punching him. He was subsequently put in the police car. One of the police officers closed the car door on the applicant’s leg.
6. The applicant was arrested and taken to the Beşiktaş police station by the officers, as he was accused of having insulted them.
7. The applicant was then taken to the Taksim Hospital. According to a medical report issued following X-rays and an orthopaedic examination of the applicant, his right leg was broken as a result of the incident.
8. On 29 June 2003 the applicant was examined by a forensic expert at the Istanbul branch of the Forensic Medicine Institute. The doctor observed a bruise of 4 cm on the left scapula, two bruises of 3 cm and 1 cm on the front of the right shoulder, two grazes of 1.5 x 1 cm on both elbows, several grazes on the upper part of the right arm within an area measuring 5 x 4 cm, and five bruises of 1 to 1.5 cm in diameter on the right arm. The doctor also observed that the applicant’s right leg was in plaster up to his knee.
9. The final report of the Forensic Medicine Institute dated 1 July 2003 confirmed that the applicant’s leg was broken and stated that the injuries rendered him unfit for fifteen days.
10. On an unspecified date a criminal case was brought before the 12th Chamber of the Istanbul Criminal Court against the applicant for insulting the police officers. Subsequently, on 20 October 2003 the applicant lodged a petition with the trial court and requested that the police officers be punished for ill-treating him.
11. On 31 January 2005 the 12th Chamber of the Istanbul Criminal Court acquitted the applicant of the charges against him in respect of one of the officers. As regards the second officer, who had closed the car door on the applicant’s leg, the court found that the applicant had insulted him. However, since the officer had overstepped his authority by his actions, the court decided not to convict the applicant.
12. Meanwhile, on 4 May 2004 the Istanbul public prosecutor filed an indictment with the 1st Chamber of the Istanbul Criminal Court against the police officers, charging them with ill-treatment of the applicant. The applicant joined the proceedings as a civil party.
13. On 23 December 2008 the 1st Chamber of the Istanbul Criminal Court convicted the police officers as charged. The court found, in the light of the medical reports that it had obtained, plus the witness statements and the submissions of the accused and the applicant, that the police officers had beaten the applicant and had closed the car door on his leg and had thus caused the injuries found on the applicant’s body on 28 and 29 June 2003. The court sentenced the accused police officers to two months and fifteen days’ imprisonment. Having regard to the fact that the police officers did not have criminal records and to the manner in which they had committed the offence in question, the first-instance court considered that the police officers would not commit any further offence. It therefore decided to suspend the pronouncement of the judgment (hükmün açıklanmasının geri bırakılması) for a period of five years, pursuant to Article 231 of the Code of Criminal Procedure (Law no. 5271).
14. On 29 December 2008 the applicant lodged an objection to the judgment of the first-instance court. In his petition, the applicant noted that he would make more detailed submissions after he had been provided with a copy of the reasons for judgment, and requested that a hearing be held.
15. On 21 April 2009 the Istanbul Assize Court dismissed the applicant’s objection of 29 December 2008 after obtaining the Istanbul public prosecutor’s opinion, without awaiting the applicant’s further submissions and without holding a hearing. As domestic legislation did not provide for an appeal, this decision was final.
16. On 8 May 2009 the decision of the Istanbul Assize Court was notified to the applicant.
17. A description of the relevant domestic law and practice concerning prosecution for ill-treatment in force at the material time can be found in Batı and Others v. Turkey, nos. 33097/96 and 57834/00, §§ 96-98, ECHR 2004-IV (extracts).
18. Suspension of the pronouncement of a judgment is regulated by Article 231 of the Code of Criminal Procedure (Law no. 5271), the relevant paragraphs of which read as follows:
“...
(5) If the accused has been convicted of the charges against him and ordered to pay a fine or sentenced to imprisonment for less than two years, the court may decide to suspend the pronouncement of the judgment... The suspension of the pronouncement of the judgment entails that the judgment shall not bear any legal consequences for the offender.
(6) Suspension of the pronouncement of the judgment may be decided provided that;
(a) the offender has never been found guilty of a wilful offence;
(b) the court is convinced, taking into account the offender’s personal traits and his behaviour during the proceedings, that there is little risk of any further offence being committed; [and]
(c) the damage caused to the victim or to society is satisfied by way of restitution or compensation.
...
(8) If the pronouncement of the judgment is suspended, the offender will be kept under supervision for the following five years.
...
(10) If the offender does not commit another wilful offence and abides by the obligations of the supervision order, the judgment [whose] pronouncement had been suspended will be cancelled and the case discontinued.
(11) If the offender commits another wilful offence or acts in violation of the obligations of the supervision order, the court shall impose the sentence. Nevertheless, the court may evaluate the offender’s situation and may decide that [...] up to half of the total sentence will not be executed. If the conditions so permit, the court may also suspend the execution of [any] imprisonment or commute it to other optional measures.
(12) An objection to the decision to suspend the pronouncement of the judgment may be filed.”
VIOLATED_ARTICLES: 3


ITEMID: 001-4723
LANGUAGEISOCODE: ENG
RESPONDENT: AUT
BRANCH: ADMISSIBILITY
DATE: 1999
DOCNAME: BEDÖ v. AUSTRIA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Nicolas Bratza
TEXT: The applicant is an Austrian national, born in 1934 and living in Vienna.
He is represented before the Court by Mr H. Bauer, a lawyer practising in Innsbruck.
A.
In 1991 criminal proceedings were instituted against T, formerly director of the A limited company, and others on suspicion of, inter alia, fraud and fraudulent conversion in connection with important public road construction works. On 13 July 1992 an investigating judge at the Innsbruck Regional Court (Landesgericht), pursuant to section 149a of the Code of Criminal Procedure (Strafprozessordnung), ordered that inter alia conversations from T’s telephones be monitored during a period of one month. The investigating judge considered that the monitored telephone conversations could disclose fraudulent business connections. On 22 July 1992 the Review Chamber (Ratskammer) at the Innsbruck Regional Court authorised the telephone interception.
On 5 November 1992 counsel for the A company, having joined the criminal proceedings as a private party, obtained the reports on the interception of telephone conversations between T and the applicant, then employed by the A company. On the same day, the A company decided to terminate - without notice - the applicant’s employment, on account of a breach of trust and untrustworthiness. Subsequently, the A company, having obtained the approval of the works council (Betriebsrat), sent him a further dismissal letter, taking effect on 31 March 1993.
On 20 November 1992 the applicant, represented by counsel, lodged with the Innsbruck Regional Court, sitting as the labour and social court (Arbeits- und Sozialgericht), an action for compensation and a declaratory judgment. The first claim concerned specific compensation claims regarding the period between 6 November 1992 and 31 March 1993, the second any further loss of earnings or pension rights.
The Regional Court held hearings on 26 February, 13 May and 25 June 1993. In the course of these hearings, the court heard evidence from witnesses and the reports on the interception of the telephone conversations between T and the applicant, which were read out. Moreover, the parties filed several pleadings.
Meanwhile, in the context of the criminal proceedings against T, the Innsbruck Regional Court, in a decision of 5 May 1993 upon an appeal lodged by T, had ordered the investigating judge to sort out the recordings of the monitored telephone communications and only to keep material relevant to the proceedings against T or any future investigation procedure. In further appeal proceedings brought by T, the Regional Court renewed this instruction.
On 9 September 1993 a preliminary investigation was opened against the applicant, and on 16 September 1993 he was questioned by an investigating judge of the Innsbruck Regional Court on suspicion of having acted as an accomplice to fraudulent conversion regarding a particular product delivered by the F limited company.
On 4 October 1993 the Innsbruck Regional Court decided to adjourn the labour proceedings pending the outcome of the criminal proceedings against the applicant. The court considered that the investigations in the criminal proceedings could disclose indications as to when the A company had known about the applicant’s possible implication in the fraudulent transactions regarding the product delivered by the F company.

On 16 November 1993 the Innsbruck Court of Appeal (Oberlandesgericht), upon the applicant’s appeal, quashed the Regional Court’s decision and ordered it to resume the proceedings. The Court of Appeal found that the applicant could not be expected to await the outcome of possibly lengthy criminal proceedings.
In the resumed proceedings, the parties filed further memorials. A hearing was held on 28 April 1994. The parties provisionally agreed on a settlement, which was subsequently revoked by the applicant. Further hearings were held on 27 June and 17 November 1994 and on 9 January 1995.
On 9 January 1995 the Innsbruck Regional Court dismissed the applicant’s action. Having regard to numerous documents, part of the criminal file against the applicant and the statements made by witnesses, as well as the director of the defendant company and the applicant, the court found that the applicant’s dismissal had been justified.
In its judgment, the court noted in particular that the applicant had occupied a leading position in the defendant company. Following the opening of preliminary investigations against T and his dismissal, the new director of the company had partly restructured the services, including the applicant’s functions. The applicant, who had been known as T’s personal friend, had expressly assured his loyalty and reliability. Having been informed by the investigating authorities about a possible leak in the company, the director had issued a circular letter, dated 15 October 1991, requesting all staff not to pass on internal information to external persons, including T, and warning about disciplinary consequences. The applicant had acknowledged receipt in writing. In a further circular letter of 31 August 1992, staff had been reminded of this request for secrecy. The applicant had again signed an acknowledgment of receipt. The company’s working order also set out a duty of secrecy, and warned about the possibility of dismissal without notice in case of contravention.
The court, having regard to the reports of the telephone interceptions obtained in the context of the criminal proceedings against T, found that the applicant had held three conversations with T from his business phone and during working time. The judgment contained a transcript of these conversations. The court further noted that the defendant company's counsel in the criminal proceedings against T had become aware of the reports on the telecommunications between the applicant and T, and had passed copies on to the company director on the morning of 5 November 1992. The latter had concluded that the reports revealed a serious breach of trust, account being taken of the instruction to secrecy in the circular letters. That afternoon, the director had informed the applicant about his dismissal for breach of trust, on account of his proven contacts with T. The dismissal had been subsequently approved by the works council.
As regards the criminal proceedings, the court also noted that in February 1994 the prosecutor’s office had preferred the indictment against, inter alia, both T and the applicant. The applicant had been charged with having acted as an accomplice to fraud, namely in having manipulated the placement of important orders for road (tunnel) construction works.
In assessing the evidence before it, the court found that the functions previously exercised by the applicant in the defendant company had not been in dispute. The director’s statements as regards the considerations which led to the circular letters and to the applicant’s dismissal had been credible and conclusive.
The events and circumstances, which were the subject of the conversations between the applicant and T, were confirmed by documents and the statements of the applicant, the company director and T. As regards the reports on the telephone interceptions, the court noted that the recordings had been partly incomprehensible and the reports accordingly incomplete as regards matters which did not form part of the facts underlying its findings. The additional submissions and evidence offered were therefore irrelevant. With regard to the applicant’s objections to the use of the reports, the court observed that the telephone interceptions had been lawfully ordered in the context of the criminal proceedings against T. Moreover, the reports of the telephone conversations between the applicant and T had been correctly kept in the files as they were of obvious importance for any later criminal proceedings against the applicant. These lawfully obtained reports could be used as evidence in any subsequent criminal proceedings against third persons and they also constituted lawful means of evidence under the Code of Civil Procedure (Zivilprozessordnung). According to the court, the reports on the telephone interceptions proved that, contrary to the director’s clear instructions, the applicant had held three telephone conversations with T. Referring to case-law on breach of trust within the meaning of the Employees Act (Angestelltengesetz), the court considered that in the context of lengthy criminal proceedings and labour court proceedings against its former director T, the defendant company had a reasonable interest in issuing instructions with a view to preventing any internal information being passed on to T. Contrary to these instructions, the applicant had informed T about internal investigations in respect of various matters. Such conduct disclosed untrustworthiness and the defendant company could not be expected to continue the applicant’s employment. The court dismissed the applicant’s explanations that these conversations had not contained any relevant information or that he had contacted T in order to obtain relevant information for the exercise of his professional functions.
On 30 May 1995, following a hearing, the Innsbruck Court of Appeal dismissed the applicant’s appeal. As regards the applicant’s objections regarding various factual findings, the Court of Appeal considered that these findings concerning the applicant’s professional performance were irrelevant, as the first instance decision was correct in the light of the undisputed facts. With regard to the applicant’s legal arguments, the Court of Appeal stated that, due to the circular letters issued by the director of the defendant company, the applicant had been aware that his contacts with T were prohibited and that their conversations about internal matters ran counter to the company’s interests. The Court of Appeal, having regard to several points of discussion between the applicant and T, also confirmed that the applicant’s conduct constituted a breach of trust.
On 25 January 1996 the Austrian Supreme Court (Oberster Gerichtshof) dismissed the applicant’s appeal on points of law. The Supreme Court confirmed that the lower courts had correctly applied the relevant law and referred to the Court of Appeal’s reasoning. As regards the applicant’s objections against the use of the reports concerning the telephone interceptions, the Supreme Court, having regard to legal writings on the use in evidence of material derived from unauthorised telephone tapping and to case-law, found that the monitoring of T’s telephone conversations had been lawfully ordered in the context of the criminal proceedings against him. Its justification under Article 8 § 2 of the Convention had not been in dispute. However, the lawful order of telephone interceptions did not only justify the interference with the private life of the suspected person, but extended necessarily to the interlocutor even if this person was not yet under strong suspicion of having committed a criminal offence. Thus the evidence had also been lawfully obtained with regard to the interlocutor. Accordingly, the contents of conversations publicly used in evidence in criminal proceedings could be generally used in evidence. The lower courts could therefore rely on the contents of the reports on the telephone interceptions which had been established for the purposes of the criminal proceedings. In this respect, the Supreme Court noted that the applicant had not contested the correctness of the reports.
The decision was served on 4 March 1996.
In the criminal proceedings against the applicant, the trial opened on 6 November 1995; beforehand, the presiding judge had ordered the destruction of the reports on the telephone interceptions as they were irrelevant for the criminal proceedings. On 26 January 1996 the applicant was acquitted.
B. Relevant domestic law
According to section 47 of the Code of Criminal Procedure, a victim of a criminal offence may join the criminal proceedings with regard to his or her civil claims as a private party (Privatbeteiligter). The private party is, inter alia, entitled to have access to the files as of the pre-trial stage if there are no particular objections (section 47(2)(2)).
The provisions concerning secret surveillance of telephone conversations are set out in sections 149a and 149b of the Code of Criminal Procedure, in the version in force at the relevant time.
Section 149a(1) provides that the interception and recording of telephone communications are only admissible if they can be expected to lead to the clearing up of a criminal offence committed with intent and liable to a penalty of more than one year’s imprisonment, and if
- the person in possession of the telecommunication installation is himself strongly suspected of that offence; or
- there are reasons to assume that the person strongly suspected of the offence resides at the address of the person in possession of the telecommunication installation or will contact him through the use of that installation, unless the latter is one of the persons referred to in section 152(1)(2); or
- the person in possession of the installation declares his express consent.
Section 149b(2) provides that after termination of the telephone interception the investigating judge shall inform the person in possession of the monitored telecommunication installation and the person suspected of the offence (the accused) of the fact that surveillance has taken place. At the same time the person in possession of the telecommunication installation shall be given the opportunity to inspect the records taken. At this inspection the person in possession of the telecommunication installation or the suspected offender (the accused) may request the preservation of the inspected records. If there is no such request, the investigating judge shall only keep those records on the file which could be relevant in any pending or imminent criminal proceedings. The judge shall order the destruction of all records not kept on the file.
Section 152(1)(2), to which section 149a refers, states that the obligation to give evidence shall not apply, inter alia, to counsel as regards confidential information received from their clients.


ITEMID: 001-98138
LANGUAGEISOCODE: ENG
RESPONDENT: UKR
BRANCH: CHAMBER
DATE: 2010
DOCNAME: CASE OF KOSTYCHEV v. UKRAINE
IMPORTANCE: 4
CONCLUSION: Violation of Art. 6-1
JUDGES: Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Mykhaylo Buromenskiy;Peer Lorenzen;Renate Jaeger
TEXT: 4. The applicant was born in 1940 and lives in the city of Kharkiv.
5. On 2 October 2000 the applicant instituted proceedings in the Kyivsky District Court of Kharkiv (“the District Court”) against his former employer seeking various payments owed to him upon his retirement, including compensation for belated salary payments.
6. On 10 October 2000 the case was transferred to another court for consideration but on 14 August 2001 it was sent back to the District Court.
7. On 16 October 2002 the District Court found in part for the applicant. Both parties appealed against that judgment.
8. In the period from February 2003 to March 2004 the Kharkiv Regional Court of Appeal, having taken over the case, remitted it back to the District Court on several occasions in view of the procedural flaws.
9. On 30 March 2004, the Kharkiv Regional Court of Appeal amended the judgment of 16 October 2002, increasing the amount awarded to the applicant. On the same date the court adopted a separate ruling, drawing the attention of the President of the District Court to the numerous shortcomings in the way the judge of the first instance court had examined the case. According to the Court of Appeal, these shortcomings had caused delays in the proceedings.
10. In April 2004 the applicant and the defendant lodged their cassation appeals before the Supreme Court. On 24 May 2006 it upheld the decisions taken by the lower courts.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-107241
LANGUAGEISOCODE: ENG
RESPONDENT: SVK
BRANCH: ADMISSIBILITY
DATE: 2011
DOCNAME: RINGIER AXEL SPRINGER SLOVAKIA, A.S. v. SLOVAKIA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Corneliu Bîrsan;Egbert Myjer;Ineta Ziemele;Ján Šikuta;Josep Casadevall;Kristina Pardalos;Nona Tsotsoria
TEXT: 1. The applicant, Ringier Axel Springer Slovakia, a. s. (“the applicant company”), is a joint-stock company established under the laws of Slovakia with its head office in Bratislava. At the time of the introduction of the application, the applicant company was called RINGIER SLOVAKIA a.s.
The applicant company was represented by Mr J. Havlát, a lawyer practising in Bratislava.
2. The Government of the Slovak Republic (“the Government”) were represented by their Agent, Ms M. Pirošíková.
The facts of the case, as submitted by the parties, may be summarised as follows.
3. The applicant company was established in 1990 and has its seat in Bratislava. It is a multimedia publishing house.
4. The applicant company’s legal predecessor in respect of the events giving rise to the present application was a limited-liability company established under the laws of Slovakia in 1994 and had its seat in Bratislava. It was the publisher of a popular national daily newspaper.
5. In the course of the proceedings described below, in 2004, the applicant company’s legal predecessor was merged with the applicant company. Hereinafter “the applicant company” includes the applicant company’s legal predecessor.
6. On 22 November 1999 criminal charges of conspiracy and illegal possession of firearms within the meaning of Articles 9 § 2 and 185 §§ 2 (b) and 4 (b) of the Criminal Code (Law no. 140/1961 Coll., as in force at that time) were brought against an individual, A., on the basis of a suspicion that he had assembled a booby trap by connecting a fuse, an alarm clock and cables.
7. By the same document, charges were brought against another individual, B., on the basis of a suspicion that he had arranged for the booby trap to be planted by the house of a judicial enforcement officer.
8. A. was arrested on the charges against him and his house and the premises of his employer were searched by the police.
9. On 5 February 2001 the proceedings against A. were terminated on the ground that the actions of which A. stood accused had not taken place and he had not been involved in the plan in question. The decision followed a finding that key witness evidence against A. was false.
10. The case file contains no information in respect of the further course and outcome (if any) of the proceedings against the other accused or the plot as such.
11. The applicant company learned of the above-mentioned alleged incident from the law-enforcement authorities. However, it did not have access either to the document containing the charges or to the case file.
12. On 24 November 1999 the daily published by the applicant company printed an article about the suspected incident. The article was entitled:
“[They] wanted to plant an explosive by the office of a judicial enforcement officer”
and contained the following passage:
“Members of the Organised Crime Division of the Police Corps Headquarters have uncovered a plan to commit a serious criminal offence. [B.] and [A.] manufactured, and contracted a man to plant, a seven-kilogram booby trap of [explosive] and [explosive] by the office of a judicial enforcement officer in a family house in [town]. Both men have been charged by an investigator in [city] with general endangerment and illegal possession of firearms, and face a penalty of imprisonment of 12 to 15 years, or an exceptional penalty. In a search of residential premises, the police found not only components for the manufacturing of a booby trap, but also several cartridges, a machine gun ammunition strip and an illegally held handgun. In the vicinity of the judicial enforcement officer’s office, there is a company involved in the exchange and sale of propane-butane and, in the event of blowing up the enforcement officer’s office, a number of adjacent houses could have been severely damaged. It is a singular attempt to evade enforcement proceedings.”
13. In the article, both A. and B. were identified with reference to their profession, first name, the initial of their surnames and their age.
The name of the town B. was from was also mentioned.
14. On 29 November 1999 the daily published a follow-up piece to the article of 24 November 1999. It was entitled “A bomb and an error”.
15. The alleged incident was also reported in another paper and a weekly magazine.
16. Following the publication of the article of 24 November 1999 and in response to it, A. sued the applicant company for libel. He claimed an apology and the equivalent of some 24,000 euros (EUR) in compensation for non-pecuniary damage.
17. A. submitted that the article was factually false in that he had had nothing to do with the incident, that the article contained information enabling him to be identified and that, without justification, it had labelled him a perpetrator as opposed to a suspect.
18. A. claimed that he had been made aware of the article by colleagues who had identified him easily, as had several other residents of the town. The article had interfered with his personal integrity, his reputation in the municipal public sphere and his position in his private and family life.
19. A. also contended that the article had thwarted his political ambitions in an important national association, of which he had been one of the founding members, from which he eventually had to withdraw in 2002.
20. In the course of a hearing of the action on 8 April 2002, A. reduced the amount of his claim for damages to the equivalent of some EUR 12,000.
21. On 12 March 2003 the applicant company offered to settle the case by publishing an apology. A. rejected the offer as it contained no financial compensation.
22. On 11 December 2003 the Poprad District Court (Okresný súd) found for the claimant.
23. The District Court had examined the article (see paragraph 12 above), the investigation file against A. and oral evidence from twenty witnesses, including A.’s family members, colleagues and employer.
24. The District Court observed that the article contained personal information about A., such as his profession, age, first name, the initial of his family name and the place of his residence. The District Court concluded that the article perfectly allowed for A.’s identification. Moreover, the article referred to A. as a person guilty of an offence, as opposed to a detainee or a suspect.
In conclusion, it held that the article interfered with A.’s right to be presumed innocent.
25. The District Court acknowledged that the impugned article, as well as the follow-up piece (see paragraph 14 above), fell within the realm of reporting, the purpose of which was to inform the public on matters of public interest. However, in view of the course and outcome of the investigation against A., the reporting in the present case could not be considered “socially desirable”.
26. Observing that the article “had been published relatively widely”, the District Court held that, by definition, the dignity and public image of A., who was known beyond his municipality mainly on account of his involvement in the association, had been diminished to an extent that called for monetary compensation.
27. The interference with A.’s personal integrity had been serious and gave rise to negative and still persisting consequences, in particular in his personal life and in relation to his public reputation. It was also established that the article had had negative consequences on A.’s private life, at work and in the area of his political ambitions.
In reaching these conclusions the District Court relied on “the statements of witnesses who [had] confirmed that the article provoked negative reactions in relation to the above-specified areas of [A.’s] life”.
28. The applicant company was accordingly ordered to publish an apology and A. was awarded the equivalent of some EUR 7,300 in compensation for non-pecuniary damage and the reimbursement of his legal costs.
29. On 10 February 2004 the applicant company lodged an appeal (odvolanie). It contended that the District Court had failed to make clear what had constituted the interference with the rights of A., the article in question or other articles about the same events which had been published in other papers (see paragraph 15 above). As for the impugned article, it had only reported the information available to the law-enforcement authorities at the given time and, from the language and context, it was plain that A. was merely a suspect and that the proceedings were at the investigation stage only.
30. Moreover, it was not true that the article contained full details of A.’s identity. In particular, only the profession, but not the employer, of A. had been mentioned and, contrary to the District Court’s observation, there had been no mention of where A. was from.
31. In sum, the published information had to be considered accurate, and had been published in an appropriate manner. This ruled out the alleged lack of justification in respect of the interference with the rights of A.
32. On 7 June 2004, through the intermediary of a new lawyer, the applicant company made an additional submission in support of its appeal, arguing that the District Court had misconceived the notion of the right to be presumed innocent, and that it in any event that right had not been interfered with.
The applicant company had relied on the accuracy of information that it had obtained from an official source, namely, the law enforcement authorities. The publication of the article had not been unlawful but had been consonant with the applicant company’s freedom of expression and the latter was consequently not liable for any damage suffered by A.
The identification of A. had been a result of his arrest and searches of his house and the premises of his employer – factors which were outside the control of the applicant company and for which it accordingly bore no responsibility - rather than a result of the article and the information contained therein.
Furthermore, in its judgment, the first-instance court had also referred to the follow-up article (see paragraphs 14 and 25 above) and had probably taken that article into account in making its decision, even though the follow-up piece had not been contested by the claimant.
The ruling concerning damages and their amount was not supported by adequate and sufficient reasons and the amount of damages awarded was excessive.
Moreover, in determining the amount of damages, no consideration had been given to the attenuating circumstance that the applicant company had taken precautions against the identification of A.
33. On 9 June 2004 the Prešov Regional Court (Krajský súd) upheld the judgment in so far as the essence of the orders for an apology and payment of damages was concerned (see paragraph 28 above).
34. Nevertheless, the Regional Court corrected typographical errors in the apology to be published pursuant to the operative part of the judgment, which consisted of an incorrect figure concerning the age of A. and the fact that, contrary to the facts, the quotation of the relevant part of the article in the operative part of the District Court’s judgment erroneously included a mention of the town A. was from (see paragraph 24 above).
The Regional Court also shortened the text of the apology.
35. The Regional Court observed that the applicant company’s submission of 7 June 2004 (see paragraph 32 above), which contained further grounds for its appeal, had been filed after the expiry of the statutory period for appealing (see paragraphs 63 and 64 in the “Relevant domestic law and practice” below) and that, therefore, it could not be taken into account.
36. The Regional Court acknowledged that the article fell within the purview of a “news-reporting licence” and that, as such, it could be published without the consent of those concerned.
The Regional Court also acknowledged that the press was not only entitled to report on illicit activities, it was in fact also obliged to do so. If such reporting was based on official information from the law-enforcement authorities, and if that information was reported accurately, the media could not be required to verify the veracity of such information independently.
37. The applicant company had therefore been entitled to report on everything contained in the charge sheet against A. However, the article suggested more.
38. In particular, the article suggested that A. had been involved in arranging for the booby trap to be planted by the house of a judicial enforcement officer while the charge sheet had only accused him of having assembled a component constituting such a device. Similarly, the charge sheet contained no mention that any arms had been found in A.’s illegal possession. The description of the actions imputed to A. was therefore distorted.
39. As for the personal details about A. contained in the article, in correlation with those contained therein about B., they did enable A. to be identified unequivocally and had therefore interfered with A.’s constitutional right to the protection of his name.
40. The combination of the elements mentioned in the preceding two paragraphs also constituted a violation of A.’s right to the preservation of his human dignity, personal honour and good reputation.
41. In addition to the negative repercussions that the article had had on A.’s life, as established by the first-instance court, the Court of Appeal also observed that, as a consequence of the article, A. had been prevented from carrying out his job for some time.
42. The loss that A. had suffered by being prevented from carrying out his job and in the area of his political ambitions was not sufficiently compensated by an apology and called for financial compensation, the amount of which, as reduced by the first-instance court in relation to the claim, reflected the fact that these consequences were due not only to the article in question but also to other articles on the same topic in other media (see paragraph 15 above).
43. The Regional Court made no express pronouncement in respect of the right of A. to be presumed innocent.
44. On 9 October 2004 the applicant company lodged an appeal on points of law (dovolanie), relying on Articles 237 (f), 238 § 1 and 241 § 2 of the Code of Civil Procedure (“the CCP”) (see paragraphs 65 to 68 in the “Relevant domestic law and practice” below).
45. The applicant company objected mainly that the Court of Appeal had unilaterally corrected the operative part of the first instance judgment without the claimant having requested it, while that correction had benefited the claimant.
46. The applicant company also argued that the Court of Appeal had substantially changed the legal reasoning of the first-instance court, that the defendant had only learned of the change from the Court of Appeal’s judgment and that it had accordingly had no possibility to contest the new reasoning.
In particular, the central reason behind the first-instance court’s judgment had been the alleged interference with A.’s right to be presumed innocent, a conclusion that had not been endorsed by the Court of Appeal. The latter on its part had considered it decisive that the article had been factually inaccurate in part.
47. The applicant company contended specifically that the above mentioned objections were not merely formalistic but had direct implications for the evidence taking and assessment in respect of the causal link between the alleged unlawful interference and the occurrence and extent of the alleged non pecuniary damage.
In other words, as it transpired from the oral evidence taken, what was crucial for the witnesses’ perception of A. was the very fact that he had been charged with a criminal offence and not the offence itself and its details. The question of the relevance of the inaccuracy of the reported information to the occurrence and extent of the non-pecuniary damage had not been examined at all.
48. On 20 January 2005, in a private session (bez pojednávania), the Supreme Court (Najvyšší súd) rejected the appeal on points of law without examining the merits of the case.
49. In the decision, the Supreme Court noted that “[t]he claimant [had] requested that the defendant’s appeal on points of law be dismissed”.
50. The Supreme Court observed that although the Court of Appeal had not endorsed the conclusion of the first-instance court concerning the violation of A.’s right to be presumed innocent (see paragraph 24 above), it had not rejected it either.
The Court of Appeal’s conclusion concerning the distortion of facts by the applicant company did not amount to a new and different legal assessment of the case but rather was a clarification and precision as to the nature, form and circumstances of the interference with A.’s personal integrity.
The applicant company had thus not been prevented from acting before the courts within the meaning of Article 237 (f) of the CCP and its appeal was not admissible on the ground envisaged by that provision.
51. Furthermore, the Court of Appeal’s correction of typographical errors in the first-instance judgment did not amount to a “modification” of that judgment within the meaning of Article 238 § 1 of the CCP, which was why the appeal was not admissible under that Article either.
52. In sum, the appeal was not admissible on any of the statutory admissibility grounds.
53. On 7 April 2005 the applicant company challenged the decisions of 4 June 2004 and 20 January 2005 in the Constitutional Court (Ústavný súd) by way of a complaint under Article 127 of the Constitution (see paragraph 59 in the “Relevant domestic law and practice” below).
54. In substance, it relied on its rights to a fair trial and to freedom of expression (to impart information), repeating its previous arguments and disputing the courts’ conclusions.
55. In addition, on page 6 of the complaint, the applicant company argued that, in violation of the equality-of-arms principle, the Supreme Court had obtained and taken into account the observations of the claimant in reply to its cassation appeal (see paragraph 49 above) without giving the applicant company an opportunity to acquaint itself with those observations and to comment on them.
56. On 10 October 2006 the Constitutional Court declared the complaint inadmissible, having found no constitutionally relevant unlawfulness or arbitrariness imputable to the Supreme Court.
Moreover, the decision of the Regional Court could not be reviewed by the Constitutional Court as it had been taken outside the statutory two month time-limit for bringing a constitutional complaint.
In reaching these conclusions, the Constitutional Court took no notice of, and gave no response to, the applicant company’s argument concerning the claimant’s observations in reply to its appeal on points of law (see paragraphs 49 and 55 above).
The decision was served on the applicant company’s lawyer on 8 August 2007.
57. Everyone has the right to the preservation of his or her human dignity, personal honour, good reputation and the protection of his or her name (Article 19 § 1).
58. The freedom of expression is guaranteed (Article 26 § 1). It may be restricted by an act of parliament if such a measure is necessary in a democratic society to protect the rights and freedoms of others, national security, public order, or protection of public health and morality (Article 26 § 4).
59. Article 127 provides:
“1. The Constitutional Court shall decide complaints by natural or legal persons alleging a violation of their fundamental rights or freedoms ... unless the protection of such rights and freedoms falls within the jurisdiction of a different court.
2. If the Constitutional Court finds a complaint justified, it shall deliver a decision stating that a person’s rights or freedoms as set out in paragraph 1 have been violated by a final decision, specific measure or other act and shall quash such decision, measure or act. If the violation that has been found is the result of a failure to act, the Constitutional Court may order [the authority] which has violated the rights or freedoms to take the necessary action. At the same time it may remit the case to the authority concerned for further proceedings, order such authority to refrain from violating the fundamental rights and freedoms ... or, where appropriate, order those who have violated the rights or freedoms set out in paragraph 1 to restore the situation to that existing prior to the violation.
3. In its decision on a complaint the Constitutional Court may grant appropriate financial compensation to the person whose rights under paragraph 1 have been violated.”
60. The protection of personal integrity is governed by the provisions of Articles 11 et seq. In so far as relevant, these provide:
“Article 11
Every natural person shall have the right to protection of his or her personal integrity, in particular his or her ... civil honour and human dignity, as well as privacy, name ...
...
Article 13
1. Every natural person shall have the right, inter alia, to request an order restraining any unjustified interference with his or her personal integrity, an order cancelling out the effects of such interference and an award of appropriate compensation.
2. If the satisfaction afforded under paragraph 1 of this Article is insufficient, in particular because the injured party’s dignity or social standing has been considerably diminished, the injured party shall also be entitled to financial compensation for non pecuniary damage.
3. When determining the amount of compensation payable under paragraph 2 of this Article, the court shall take into account the seriousness of the harm suffered by the injured party and the circumstances in which the violation of his or her rights occurred.”
61. In a judgment of 28 April 1998 in unrelated case no. 1 Cdo 89/97 the Supreme Court held that
“if the non-pecuniary damage to the personal integrity of an individual can be outbalanced by some of the forms of moral satisfaction, the moral satisfaction shall be favoured. Only in those cases where an individual’s dignity or social standing have been diminished to a considerable degree (v značnej miere) and where the extent of this interference is too great to be adequately repaired by other legal tools can financial compensation be considered justified.
An award of financial compensation by a court under Article 13 § 2 of the Civil Code presupposes the fulfilment of two statutory requirements, that is to say
(a) if moral satisfaction appears insufficient in a given case, and
(b) the unlawful interference has resulted in diminishing an individual’s dignity or social standing to a considerable degree.
In determining the amount of financial compensation, the following two specifically and exhaustively defined criteria emanating from Article 13 § 3 of the Civil Code must be applied by the court:
(a) the seriousness of the non-pecuniary damage suffered, and
(b) the circumstances in which the unlawful interference with personal integrity occurred.
In this context, the seriousness of the non-pecuniary damage is to be judged in particular with regard to its extent, scope, repercussions and duration.
The fact that Article 13 § 3 of the Civil Code imposes expressly upon a court the duty to take into account the circumstances in which the violation of a person’s personal integrity has taken place leads to the conclusion that the seriousness of the non-pecuniary damage alone is not the only and exclusive factor for determining the final amount of financial compensation.
[...]
From the point of view of Article 13 §§ 2 and 3 of the Civil Code non pecuniary damage shall only be considered legally relevant if its occurrence is in causal connection with an unlawful interference that has significantly diminished an individual’s dignity and social standing.”
62. In another unrelated case, no. 4 Cdo 15/03, the Supreme Court held that:
“As to determining the degree to which interference has diminished an individual’s dignity or social standing, the starting point must be the subsequent reaction that the interference provoked in the family, work or other environment of that individual. This degree is to be determined by taking and assessing evidence and it is to be judged on the basis of a sound knowledge and assessment of that reaction. Only in those cases where it has been sufficiently established that there has been a reaction that shows that an individual’s dignity or social standing has been diminished to a considerable degree may the individual exceptionally, and as a subsidiary measure, be awarded financial compensation in respect of non-pecuniary damage. Although the determination of the amount of financial compensation in respect of non pecuniary damage is subject to judicial discretion, this does not imply non-reviewable arbitrariness. The court must always rely on duly established facts and base its decision on absolutely concrete and reviewable considerations and relevant evidence that demonstrates how ... the defamatory information [...] impacted on the dignity or social standing of the claimant and with what negative consequences.”
63. An appeal must be lodged within fifteen days of the service of the challenged decision (Article 204 § 1).
64. The scope of and the reasons for the appeal can be extended as long as the time-limit for appealing has not expired (Article 205 § 3).
65. Under Article 236 an appeal on points of law lies against final and binding decisions of appellate courts if certain statutory admissibility criteria are met.
66. The general admissibility criteria, that is, those applicable to both judgments (rozsudok) and resolutions (uznesenie), are set out in Article 237. Under its letter (f), an appeal on points of law is available in situations where the courts prevented a party to the proceedings from acting before them. Further grounds for appealing on points of law under this Article are summarised in Tomková v. Slovakia (no. 51646/99, § 37, 13 July 2004), Indra v. Slovakia (no. 46845/99, § 33, 1 February 2005) and Ringier Axel Springer Slovakia, a. s. v. Slovakia (no. 41262/05, § 62, 26 July 2011, not final, subject to Article 44 § 2 of the Convention).
67. In addition to the above-mentioned general admissibility criteria, special admissibility criteria apply if the Court of Appeal decided in the form of a judgment. These are defined in Article 238. Under paragraph 1 of that Article, an appeal on points of law is admissible where the appellate court overturned the judgment of a first-instance court. Further grounds for appealing on points of law under this Article are summarised in Tomková (cited above, § 38) Stavebná spoločnosť TATRY Poprad, s.r.o. v. Slovakia (no. 7261/06, § 24 and 25, 3 May 2011) and Axel Springer Slovakia, a. s. (cited above, §§ 63-67).
68. As to the merits, an appeal on points of law can only be based on the grounds defined in Article 241 § 2, that is to say, that the proceedings have been vitiated by an error envisaged in Article 237 (letter (a)), that the proceedings have been vitiated by another error that resulted in an incorrect decision on the merits (letter (b)) and that the decision rests on an error of law (letter (c)).
69. At the relevant time indemnification of the victims of violent crime was governed by Law no. 255/1998 Coll., as amended.
70. Under its sections 4(4) and 5, the maximum amount of indemnification under the Act was indexed to the minimum wage under the Minimum Wage Act (Law no. 90/1996 Coll., as amended) and was defined as its multiple by fifty.
71. On 24 November 1999, when the article was published (see paragraph 12 above), the minimum wage was the equivalent of some EUR 85. Consequently, the maximum amount of indemnification at that time amounted to the equivalent of some EUR 4,250.