ITEMID: 001-58607
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: CHAMBER
DATE: 2000
DOCNAME: CASE OF ERDOGDU v. TURKEY
IMPORTANCE: 1
CONCLUSION: Preliminary objection dismissed (non-exhaustion);Violation of Art. 10;Pecuniary damage - financial award;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings
JUDGES: Antonio Pastor Ridruejo
TEXT: 8. At the material time Mr Ümit Erdoğdu, a journalist and writer, born in 1970, was the editor of the bi-monthly periodical İşçilerin Sesi (“The Workers' Voice”), which appears in Istanbul. In issue no. 40 of 2 October 1992, the periodical published an article written by a reader and entitled “Kürt Sorunu Türk Sorunudur” (“the Kurdish problem is a Turkish problem”).
9. On 29 December 1992 the public prosecutor (“the prosecutor”) at the Istanbul National Security Court (“the National Security Court”) instituted criminal proceedings against A.E.A. and the applicant in their respective capacities as publisher and editor of the periodical.
The prosecutor noted that, in the article in question, “acts of separatist terrorism perpetrated in the south-east of the country were described as Kurdish National Resistance; part of the country, [thus] of the State of the Republic of Turkey, was called Kurdistan [and] an appeal was made for support for acts described as being of National Resistance”. He charged the defendants with disseminating propaganda, through the medium of a periodical, against the territorial integrity of the State and the indivisible unity of the Turkish nation, contrary to section 8, paragraphs 1 and 2, of the Prevention of Terrorism Act (Law no. 3713) (see paragraph 21 below).
10. Having regard to the context from which the public prosecutor appears to have drawn his grounds for pressing charges (see paragraph 9 above and paragraph 12 below), the relevant passages of the article in question can be summarised as follows:
“... The confrontations between Turks and Kurds in the various provinces are seen as foreseeable incidents; moreover, they are sometimes provoked by the security forces, sometimes by fascist civilians and from time to time by the 'fundamentalists'. Consequently, the policy of favouring 'a military solution', which until now was implemented by means of a dirty war against [the guerrillas] has taken on a new dimension and has begun to be coupled with a destructive social policy leading to ethnic conflict in all regions of Turkey. It is very clear from this that the Kurdish problem is a general problem for Turkish society and not a problem experienced in Kurdistan and confined to within Kurdistan's borders ... Today, the Kurdish problem is a Middle Eastern problem ... The Republic of Turkey [“RT”], which is confronted with a Kurdish national movement within its own borders, clings firmly onto [the branch] of the 'Kurdish problem' and, in doing so, is rapidly sucked into the complex developments in the Middle East ... Will the daily repositioning of the pawns in the Middle East, the changes of alliance and the long-term imperialist plans ensure the success of those policies of the RT? Besides that, ... will the proportions reached by the Kurdish national movement allow it to be destroyed as a result of suffocation by a series of massacres? Clearly, nobody today can foresee answers to these questions ... Given the proposals for a 'political solution', expressed recently by the various spokespersons of the sovereign powers, the latter do not appear to have renounced the 'military solution'. Since the 'political solution' referred to is merely a sham political solution which denies the people of Kurdistan their free will ... In addition to that, the 'referendum' discussions, which have also been on the agenda for some time, are engaged in by the sovereign classes not in such a way as to achieve a solution to the problem, but to push it into a dead end. The envisaged 'referendum' does not in any way take as its basis the self-determination of the people of Kurdistan, but, on the contrary, outlines a 'solution' which is likely to unleash a rise in hostilities between the peoples ... Many of those on the left in Turkey have confined their perspective to preventing State terror and violations of human rights in Kurdistan, whereas another section are attempting to find their raison d'être in the shadow of the Kurdish national movement with a point of view which is far from likely to offer a democratic solution for all. It is clear that neither of those approaches can provide society with a credible means of solving the Kurdish problem. The revolutionary democratic powers must offer society as a whole a programme setting out the path necessary to achieve a democratic and liberal solution to the Kurdish problem. In order to make such a solution acceptable to the many different sectors of society, it is also necessary to implement an appropriate practice. Otherwise, the RT's warring policies will reach a point at which they can only engender circumstances condemning the whole country to chauvinism, State terror and darkness. Since the Kurdish problem is also a Turkish problem ... Moreover, in the ranks of the National Resistance Movement in Kurdistan, the current war is generally perceived as an 'international war'. Irrespective of what has been said in official declarations, the policy of favouring a military solution resembles, in practice, open warfare against the Kurdish people ... The sovereign powers, in their deliberate distortion [of things], make every effort to present this war as that of the Turks against the Kurds. And, alas!, the fact that the Turkish people have adopted a passive attitude towards the Kurdish problem renders that distortion credible. To perceive the war in Kurdistan as an 'international war' reinforces, among Turkish workers, chauvinistic and exclusive tendencies against the Kurds, while among the Kurdish youth in the West the same social atmosphere very spontaneously sparks off feelings of hostility towards Turkish society ... In actual fact, if one were to react in accordance with the requirements of an 'international war', what would affect Kurdish and Turkish workers would not be an 'international war', but a generalised social collapse. Faced with this increasingly marked tendency, even the leader of the Kurdish National Resistance Movement is failing to show himself to be sufficiently sensitive and prefers to keep silent. Clearly, such a dispute will benefit neither the Turkish people nor the Kurdish people. A dispute of this kind will merely be a confrontation between fundamentalists, lacking in any revolutionary dynamic, and will make the Turkish and Kurdish people vulnerable to attacks by the sovereign classes and imperialists. In order to curb this negative tendency, there is surely nothing more foolish than to suggest that the Kurdish people give up national resistance. On the contrary, defeating Kurdish national resistance will not in any way serve to eliminate the ethnic tensions beginning to appear in the West and will only set off a trend towards the establishment of lasting hostilities between the peoples. If there really is something to be achieved, it must be achieved in the West within the Turkish population. The only key to resolving the problem is for the Turkish people to perceive Kurdish national resistance as part of their [own] struggle for freedom and democracy ... activities designed to establish fraternity between peoples in the West constitute, in themselves, one of the most important means of the struggle against the current bonds of sovereignty ... The revolutionary movement in the West should henceforth 'intervene' in the Kurdish problem.”
11. At a hearing on 19 April 1993 in the National Security Court, the applicant denied the charges against him. He submitted, among other things, that the article in question had been written by a reader residing in Germany, Y.A., and that he had published it because he had considered that it did not contain anything justifying censorship or anything revealing any criminal intention. The applicant argued that the article, considered as a whole, intended only to put forward the different approaches to the Kurdish problem, with the aim of suggesting democratic solutions to it.
12. On 20 December 1993 the National Security Court found the applicant and A.E.A. guilty of the offence as charged. It also ordered the copies of the issue of the review in which the impugned article had been published to be seized.
In its judgment, considering that it was not necessary to reproduce the passages judged to be in breach of the law, the National Security Court agreed with the prosecutor that the article in question referred to a part of Turkish territory which it called Kurdistan and condoned acts of violence by the PKK (Workers' Party of Kurdistan), which it portrayed as a national resistance movement against the State. Considering that the expressions and phrases used by Y.A., the author of the impugned article, undoubtedly showed an intention to transgress section 8 of Law no. 3713, the court concluded that, in publishing the article, the applicant and his co-defendant should be deemed to have knowingly conveyed propaganda designed to obtain support for the aim of destroying the territorial integrity of Turkey and the unity of the Turkish nation.
The National Security Court accordingly sentenced Mr Erdoğdu, in his capacity as editor, to six months' imprisonment and a fine of 50,000,000 Turkish liras (TRL).
13. The applicant appealed to the Court of Cassation. In a judgment of 4 May 1994, delivered after holding a hearing, the court dismissed his appeal, upholding the National Security Court's assessment of the evidence and its reasons for dismissing Mr Erdoğdu's defence.
14. On 10 January 1995 the applicant began paying the fine, which had been divided into monthly instalments of TRL 1,750,000.
15. On 30 October 1995, before the custodial sentence imposed on the applicant was enforced, Law no. 4126 came into force amending, inter alia, section 8 of Law no. 3713 (see paragraph 22 below). It modified the mens rea laid down by the former text of section 8 as to the commission of the act of propaganda in question. It also imposed a lighter custodial sentence for that offence, but increased the fines. In a transitional provision, Law no. 4126 also provided for an ex officio re-examination of earlier convictions imposed under section 8 (see paragraph 23 below).
16. Mr Erdoğdu applied to the National Security Court for a reexamination of his case on the merits. In his pleadings, his lawyer submitted:
“As you know, section 8 of the Prevention of Terrorism Act has been amended by Law no. 4126 ... However, since the words 'irrespective of the methods used and the intention' ... have been repealed, the mens rea of the offence has been completely done away with, so as to fully alter the nature of the offence. The court is therefore legally obliged ... to set aside on grounds of nullity the sentence imposed on our client ... under former section 8 ... there will have to be a re-trial on the basis of the new definition of the offence.”
He continued as follows:
“Freedom of opinion must allow individuals unrestricted access to ideas and knowledge, to not be criticised for the opinions and convictions they hold, to express them freely, either alone or with others, through various media, such as speech, the press, drawings, cinema, theatre, etc., [and] to defend them, disseminate them to others and broadcast them. ... To put acts of terrorism and concepts of expression and statement of opinions in the same category is to restrict 'the free circulation of ideas' and the right and freedom 'of people to inform themselves'. ... What has been punished in our case is merely the 'risk of legitimising the ideas and acts of the PKK'. No one is obliged to think in accordance with official points of view and to produce ideas which conform to them. An idea which conflicts with the concept of nation cannot be considered as 'propaganda destroying the unity of the country or that of the nation'. Furthermore, criticisms of leaders for their acts contrary to democracy and freedoms resulting from erroneous policies or proposing solutions are not acts destructive of national unity ... Proposing economic, cultural and social solutions ... and a discussion of those solutions is a natural sequitur of the most basic right of persons to think and express their opinions ... Article 10 of the European Convention on Human Rights expresses that fact by stipulating that the public has a right to receive and impart information. Free political debate constitutes the essence of the concept of a democratic society fully implementing the Convention. A balance has to be struck between the aims of ensuring the national security and integrity of the country and the benefit brought by the free debate of political issues. The important role of the freedom of expression in a democratic society and above all the publication by the press of information and ideas of public interest can only be secured by means of a pluralistic society underwritten by the State. The least satisfactory method of achieving this is by a State monopoly imposing a maximum restriction on the freedom of speech.”
17. In its judgment of 18 April 1996, the wording of which turned out to be based on the judgment of 20 December 1993 (see paragraph 12 above), the National Security Court finally sentenced Mr Erdoğdu to a fine of TRL 50,900,000, which it decided to defer in accordance with section 6 of Law no. 647 (see paragraph 25 below). The court stipulated that a new judgment had thus been delivered, and ordered that execution of the previous sentence be stopped.
18. On 24 April 1996 the applicant appealed to the Court of Cassation. In his notice of appeal, in which he reserved the right to enlarge on his submissions after service of the finalised judgement, the applicant complained that the National Security Court's judgment “was contrary to the principles both of domestic law and of international law and had been delivered without any examination of the defence” submitted in the instant case.
19. While those proceedings were still pending, Law no. 4304 was promulgated on 4 August 1997. That Law provided for the deferment of judgment and of execution of sentence in respect of offences committed by editors before 12 July 1997 (see paragraph 24 below).
Having regard to that new Law, on 17 November 1997 the Court of Cassation set the judgment aside and remitted the case to the lower court.
20. Lastly, in a judgment of 10 December 1997, the National Security Court decided, pursuant to section 1(3) of Law no. 4304, to defer judgment against Mr Erdoğdu, but to proceed to delivery if, within three years from the date of deferment, Mr Erdoğdu was convicted of an intentional offence in his capacity as editor, and, lastly, that the criminal proceedings against him would be discontinued if no similar conviction was made before the expiry of that three-year period.
21. Before Law no. 4126 of 27 October 1995 came into force, section 8 of Law no. 3713 provided:
“Written and spoken propaganda, meetings, assemblies and demonstrations aimed at undermining the territorial integrity of the Republic of Turkey or the indivisible unity of the nation are prohibited, irrespective of the methods used and the intention. Any person who engages in such an activity shall be sentenced to not less than two and not more than five years' imprisonment and a fine of from fifty million to one hundred million Turkish liras.
Where the act of propaganda, deemed to be an offence for the purposes of the above paragraph, is committed through the medium of periodicals within the meaning of section 3 of the Press Act (Law no. 5680), the publisher shall also be liable to a fine equal to ninety per cent of the income from the average sales for the previous month if the periodical appears more frequently than monthly. However, the fine may not be less than one hundred million Turkish liras. The editor of the periodical concerned shall be ordered to pay a sum equal to half the fine imposed on the publisher and sentenced to not less than six months' and not more than two years' imprisonment.”
22. Since being amended by Law no. 4126, that section reads as follows:
“Written and spoken propaganda, meetings, assemblies and demonstrations aimed at undermining the territorial integrity of the Republic of Turkey or the indivisible unity of the nation are prohibited. Any person who engages in such an activity shall be sentenced to not less than one and not more than three years' imprisonment and a fine of from one hundred million to three hundred million Turkish liras. The penalty imposed on a re-offender may not be commuted to a fine.
Where the act of propaganda, deemed to be an offence for the purposes of the first paragraph, is committed through the medium of periodicals within the meaning of section 3 of the Press Act (Law no. 5680), the publisher shall also be liable to a fine equal to ninety per cent of the income from the average sales for the previous month if the periodical appears more frequently than monthly. However, the fine may not be less than one hundred million Turkish liras. The editor of the periodical concerned shall be ordered to pay a sum equal to half the fine imposed on the publisher and sentenced to not less than six months' and not more than two years' imprisonment.
Where the act of propaganda, deemed to be an offence for the purposes of the first paragraph, is committed through the medium of printed matter or by means of mass communication other than periodicals within the meaning of the second paragraph, those responsible and the owners of the means of mass communication shall be sentenced to not less than six months' and not more than two years' imprisonment and a fine of from one hundred million to three hundred million Turkish liras ...
...”
23. The following amendment was made to Law no. 3713 following the enactment of Law no. 4126:
“In the month following the entry into force of the present Law, the court which has given judgment shall re-examine the case of a person convicted pursuant to section 8 of the Prevention of Terrorism Act (Law no. 3713) and, in accordance with the amendment ... to section 8 of Law no. 3713, shall reconsider the term of imprisonment imposed on that person and decide whether he should be allowed the benefit of sections ... and 6[] of Law no. 647 of 13 July 1965.”
24. The following provisions are applicable to sentences in respect of offences under the Press Act:
“The execution of sentences passed on those who were convicted under section 16 of the Press Act (Law no. 5680) or other laws as editors for offences committed before 12 July 1997 shall be deferred.
The provision in the first paragraph shall also apply to editors who are already serving their sentences.
The institution of criminal proceedings or delivery of final judgments shall be deferred where no proceedings against the editor have yet been brought, or where a preliminary investigation has been commenced but criminal proceedings have not been instituted, or where the final judicial investigation has been commenced but judgment has not yet been delivered, or where the judgment has still not become final.”
“If an editor who has benefited under the provisions of the first paragraph of section 1 is convicted as an editor for committing an intentional offence within three years of the date of deferment, he must serve the entirety of the suspended sentence.
...
Where there has been a deferment, criminal proceedings shall be instituted or judgment delivered if an editor is convicted as such for committing an intentional offence within three years of the date of deferment.
Any conviction as an editor for an offence committed before 12 July 1997 shall be deemed a nullity if the aforesaid period of three years expires without any further conviction for an intentional offence. Similarly, if no criminal proceedings have been instituted, it shall no longer be possible to bring any, and, if any have been instituted, they shall be discontinued.”
25. The relevant parts of section 6 of the Execution of Sentences Act 1965 provide:
“Where a person is ... sentenced to a fine ... and/or up to one year's imprisonment ... for an offence which he has committed, execution of the sentence shall be deferred if the court considers that, having regard to his criminal record and [his] tendency to break the law, such deferment will suffice to deter him from reoffending.”
26. Paragraphs 5 and 6 of Article 322 of the Code of Criminal Procedure govern applications for rectification of judgment:
“5. Applications for rectification of a judgment of the Criminal Divisions or of the Court of Cassation sitting as a full criminal court shall be admissible only where a ground relied on in the notice ... of appeal ... and/or errors or omissions affecting the judgment on the merits have not been taken into account by the Court of Cassation ...
6. The Principal Public Prosecutor alone shall have power to request rectification of a judgment. ...”
The Principal Public Prosecutor can use the remedy in question either of his own motion or at the request of the public prosecutor at the court of first instance and/or the party adversely affected by the Court of Cassation's judgment.
VIOLATED_ARTICLES: 10


ITEMID: 001-107236
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: CHAMBER
DATE: 2011
DOCNAME: CASE OF NECATI EROL v. TURKEY
IMPORTANCE: 4
CONCLUSION: Violation of Art. 6-1;Violation of P1-1
JUDGES: András Sajó;David Thór Björgvinsson;Françoise Tulkens;Guido Raimondi;Paulo Pinto De Albuquerque
TEXT: 3. The applicant was born in 1933 and lives in Bursa.
4. In 2004 the General Directorate of Highways seized a plot of land belonging to the applicant without any formal expropriation, for the construction of a highway. The applicant brought an action before the Karacabey Civil Court to obtain compensation for the de facto expropriation of his property. He requested 5,500 Turkish liras (TRY) as compensation from the court and reserved his right to increase this claim in due course.
5. On 29 December 2005 the Karacabey Civil Court awarded the applicant TRY 5,500 as compensation for the de facto expropriation of his land, as requested, plus interest. The applicant initiated execution proceedings before the Bursa Execution Office to obtain that amount (file no. 2006/2198).
6. On 29 May 2006 the Court of Cassation upheld the judgment of the first-instance court.
7. The applicant subsequently brought an additional action (“ek dava”) before the Karacabey Civil Court to obtain further compensation for his land in the light of the expert report obtained during the previous proceedings, which had valued the land at a rate higher than that initially requested by him.
8. On 2 November 2006 the Karacabey Civil Court awarded the applicant TRY 93,491, plus interest. The applicant initiated another set of execution proceedings before the Bursa Execution Office to obtain the amount awarded (file no. 2009/2816).
9. On 13 March 2007 the Court of Cassation upheld the judgment of the Karacabey Civil Court.
10. On 20 and 24 March 2009 the administration paid TRY 789,091 and 142,079 respectively to the files before the Bursa Execution Office. According to the information provided by the applicant, there has been no outstanding debt in the execution files.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-5846
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: ADMISSIBILITY
DATE: 2001
DOCNAME: O.V.R. v. RUSSIA
IMPORTANCE: 1
CONCLUSION: Inadmissible
TEXT: The applicant is a Russian citizen, born in 1971 and living in Severodvinsk, Russia. She is represented before the Court by Mr G.B. Romanovskiy, a lawyer practising in Severodvinsk.
The respondent Government are represented by Mr P. Laptev, Representative of the Russian Federation at the European Court of Human Rights.
The facts of the case, as submitted by the parties, may be summarised as follows.
On 16 August 1995 the applicant was granted a general notary licence by the Ministry of Justice. On 10 October 1995 she was appointed as a notary to the Severodvinsk State notary firm by a decision of the Arkhangelsk Regional Department of Justice (Управление Юстиции Архангельской области, hereinafter referred to as “the Department of Justice”).
On 14 February 1997 the Department of Justice licensed the applicant to open her own private notary practice. Shortly after she had opened her notary office, she was informed by the Arkhangelsk Notary Chamber (Архангельская Нотариальная Палата, hereinafter referred to as “the Notary Chamber”) that she had a statutory obligation to join it. On 4 March 1997 she applied for such membership, pursuant to Articles 2 and 24 of the Notary Act, which provide that every private practising notary must be a member of a notary chamber.
The applicant submits that she was informed by the president of the Notary Chamber that she was required to pay a membership entry fee of 500 times the minimum reference tariff (минимальный размер оплаты труда), which at the time equalled 40,000,000 roubles (RUR) / (approximately 40,160 FF). On 17 March 1997 the applicant withdrew her application for membership since she was unable to pay this sum and because she disagreed with the manner in which the fee had been established. On 21 March 1997 the members’ assembly of the Notary Chamber struck the applicant out of its list.
On 31 March 1997, after the applicant had resigned from membership, she received a copy of the decision of the board of the Notary Chamber, dated 11 March 1997, to admit her as a member. It fixed her membership entry fee at 100 times the minimum reference tariff, equal to 8,349,000 RUR (approximately 8,382 FF) to be paid in six instalments. However, she did not reapply for membership.
On 14 April 1997 the Notary Chamber brought an action before the Severodvinsk City Court of the Arkhangelsk Region (Северодвинский городской суд Архангельской Области, hereinafter referred to as “the City Court”) for the withdrawal of the applicant’s right to practise as a private notary because she was no longer a member.
On 18 April 1997 the City Court issued an interim decision by which the applicant was forbidden to exercise the profession of private notary before her case had been decided on the merits. The applicant appealed to the Arkhangelsk Regional Court (Судебная коллегия по гражданским делам Архангельского Областного Суда, hereinafter referred to as “the Regional Court”) claiming that the Notary Chamber was not entitled to bring the action and that the relevant national legislation breached her right under Article 30 of the Constitution not to be compelled to join or to remain in an association. She also maintained that there was no valid reason for the interim decision, since Article 133 of the Code of Civil Procedure provided that such a decision could only be taken if there was a risk that it would be otherwise impossible to execute the final court decision in the case.
On 15 May 1997 the Regional Court quashed the interim decision on the grounds that it was insufficiently motivated and unjustified, and referred the case back to the City Court. On 2 July 1997 the City Court adjourned the proceedings in order to submit to the Constitutional Court the question of the constitutionality of the provisions of the Notary Act relating to the obligation for a private practising notary to be a member of a notary chamber. The applicant joined the application, alleging in addition a violation of Article 19 of the Constitution which guarantees equality before the law.
On 25 September 1997 another City Court judge reopened the proceedings despite the fact that the Constitutional Court had not yet rendered its decision. On 14 October 1997 the City Court suspended the applicant’s right to act as a private notary on the basis that she was not a member of the Notary Chamber and thus practised her profession in violation of the legislation in force.
The applicant appealed. In January 1998 the Regional Court adjourned the proceedings awaiting the decision of the Constitutional Court.
On 19 May 1998 the Constitutional Court, after a hearing held on 29 April 1998, ruled that compulsory membership of a notary chamber is not contrary to Articles 19 and 30 § 2 of the Constitution. It stated, inter alia, that notary chambers perform important public law functions, which include the supervision of the exercise of private notaries’ professional duties, and the right to address a court with a request to deprive a notary of the right to practise because of a violation of the law. Having regard to these public law functions and duties, the Constitutional Court found that the principle of voluntary membership could not apply to notary chambers. As regards the status of notary chambers, the Constitutional Court added that they were to be considered as non-governmental organisations taking part in State power. Further, it ruled that membership of a notary chamber should not be subjected to conditions other than those established by law, in particular membership fees which are not foreseen by the notary legislation.
On 4 June 1998, following the Constitutional Court decision, the Regional Court held that the City Court’s decision of 14 October 1997 was in accordance with the law and should remain unchanged.
Subsequently, the Notary Chamber requested the City Court to order the applicant to pay its legal costs (19,991 Roubles). On 28 October 1998 the City Court partly granted this claim and ordered the applicant to pay the Chamber 3,130 Roubles. The applicant did not lodge an appeal against that decision.
Article 2 provides that in performing notary acts, notaries have equal rights and duties, irrespective of whether they are employed by State notary offices or in private practice. Documents authenticated by notaries are of equal legal validity. It further states that a notary engaged in private practice must be a member of a notary chamber.
According to Article 24, a notary chamber is a non-profit making organisation, which is a professional association based on the compulsory membership of private practising notaries. Persons who intend to obtain a license to conduct notary acts may also be members. Notary chambers shall be formed in each republic within the Russian Federation, in an autonomous region, autonomous areas, territories and regions, and in the cities of Moscow and St. Petersburg. The notary chamber shall be a corporate body and shall organise its work on the principles of self-government. It shall conduct its activities in accordance with the legislation of the Russian Federation, the republics within the Russian Federation, and its statutes. It may engage in business activities insofar as this is necessary for the performance of its statutory tasks. Its property shall not be subject to company property tax. Its statutes shall be adopted by a meeting of its members and shall be registered in accordance with the procedures prescribed for registering the statutes of public organisations.
According to Article 27, the membership fees and other payments by the members of the notary chamber are fixed by the general assembly of its members.
According to Article 34, the implementation of professional duties by notaries employed at State notary offices shall be supervised by State justice bodies, and by notary chambers in the private sector.
Article 19 of the Constitution provides for the equality of all before the law and courts of law, and equality of rights and liberties.
Article 30 § 2 of the Constitution provides that no one may be coerced into joining any association or into membership thereof.


ITEMID: 001-126091
LANGUAGEISOCODE: ENG
RESPONDENT: POL
BRANCH: ADMISSIBILITY
DATE: 2000
DOCNAME: SADOWSKI v. POLAND
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Georg Ress
TEXT: The applicant is a Polish citizen born in 1950.
A.
1. The applicant’s detention on remand
On 17 March 1994 the applicant was arrested. On 22 March 1994 the Gdańsk District Prosecutor detained him on remand on charges of armed robbery committed on 15 December 1993 against a post office in Gdańsk. The prosecutor referred to a danger of absconding and to the serious character of the offence concerned. On 11 April 1994 the Bielsko-Biała Regional Court dismissed the applicant’s appeal against this decision.
On 21 April, 9 and 19 May 1994 the prosecutor refused to release the applicant.
From 22 March 1994 to 8 June 1994 the applicant served a prison sentence imposed by a judgment of the Częstochowa Regional Court of 19 July 1993, pursuant to which a fine had been imposed on him with 90 days’ imprisonment in default.
On 7 June 1994 the Bielsko-Biała Regional Court prolonged the applicant’s detention until 17 September 1994, referring in particular to new evidence gathered in the case since the beginning of the investigations which made the charges against the applicant and other accused plausible. The court further stressed that the suspects had probably been acting in an organised group, acting in a violent manner bordering on terrorism, and had unlawfully possessed weapons. The court further noted that various indications of criminal connections between the accused and other persons needed clarification.
On 16 August 1994 the Katowice Appellate Prosecutor dismissed the applicant’s appeal against a refusal of 25 July 1994 to release him, considering in particular that the testimony of witnesses pointed to the applicant’s guilt. On 2 September 19994 the Bielsko-Biała Regional Court prolonged detention on remand until 10 December 1994.
On 11 October 1994 the Bielsko-Biała Regional Prosecutor again refused to release the applicant. On 11 November 1994 the Katowice Appellate Prosecutor upheld this decision. On 2 December 1994 the applicant’s detention was prolonged until 10 March 1995.
On 27 December 1994 the Bielsko-Biała Regional Prosecutor refused to release the applicant, referring to evidence gathered in the investigations, which supported suspicion against the applicant and to the danger of absconding.
On 28 December 1994 the Katowice Court of Appeal dismissed the applicant’s appeal against a decision prolonging his detention until 10 March 1995.
On 16 February 1995 and on 27 February 1995 the Katowice Appellate Prosecutor upheld this decision, finding in particular that the evidence gathered so far in the investigations strongly supported the suspicion against the applicant.
On 6 July 1995 the Bielsko-Biała Regional Court refused to release the applicant.
On 23 January 1996 the Bielsko-Biała Regional Court refused to release the applicant. On 14 February 1996 the Katowice Court of Appeal upheld the decision of 23 January 1996, considering in particular that the applicant’s allegations that the evidence against him had been fabricated, should be seen in the light of the fact that it was ultimately for the court to assess evidence in criminal cases. The applicant’s health had also been examined and it did not amount to an impediment to the applicant’s continued detention.
On 6 March 1996 the Bielsko-Biała Regional Prosecutor lodged a bill of indictment, including two further charges of armed robbery with the Bielsko-Biała Regional Court to which the case had in the meantime been transferred.
On 7 March 1996 the Bielsko-Biała Regional Court refused to release the applicant, and on 27 March 1996 the Katowice Court of Appeal upheld this decision, considering that the arguments advanced by the applicant in his appeal were essentially the same which he had put forward before in the proceedings concerning his detention. The court noted that certain evidence had still to be taken, in particular as certain witnesses had failed to attend the hearings in order to be questioned. The court further noted that the facts which sufficed for a continuation of detention on remand were not of the same level of probability as those which could ultimately lead to a conviction. In the applicant’s case there was enough evidence against him to justify his continued detention. The applicant’s health had repeatedly been taken into consideration by the courts and assessed under Article 218 of the Code of Criminal Procedure.
On 26 July 1996 the Bielsko-Biała Regional Court rejected the applicant’s request for release. The court recalled that the applicant’s request for release had been examined by competent courts on numerous occasions, for the last time in March 1996. No changes had occurred since that time such as to justify the release, in particular as several witnesses from Częstochowa had failed to comply with the court’s summonses. Moreover, the lawyer of another accused, M.S., had fallen ill, and M.S. had not consented to his being temporarily replaced by another lawyer. Thus, it was necessary to maintain the detention in order to ensure the proper course of the proceedings. Since the last judicial decision by which the lawfulness of the applicant’s detention had been reviewed, he had twice been examined by an orthopaedist. The medical opinion of 18 July 1996 indicated that the applicant’s pains had become less severe, that no muscular atrophy had been established and that he had a wider range of movement in his right arm than he had had before, thus, there were no grounds to release the applicant.
On an unspecified later date the applicant complained to the President of the Bielsko-Biała Regional Court that his detention was unlawful. In reply, he was informed by a letter of 8 August 1996 that pursuant to the provisions of the new Code of Criminal Procedure, detention on remand of persons arrested before 4 August 1996, whose length of detention had exceeded time-limits fixed by Article 222 of the new Code, could be maintained until 1 January 1997. In cases in which a request for prolongation of detention had been submitted by a competent court to the Supreme Court, detention was to be maintained until this request be examined by that court. Therefore there was nothing, showing that the applicant’s detention was, or had become, unlawful.
On 11 September 1996 the Supreme Court refused to entertain the request of the Bielsko-Biała Regional Court for prolongation of the applicant’s detention, considering that this request should have been given by way of an interlocutory decision and not by a court’s administrative order. On 12 November 1996 the Bielsko-Biała Regional Court requested again that the applicant’ detention be prolonged.
On 17 January 1997 the Supreme Court, at the motion of the Bielsko-Biała Regional Court, prolonged the applicant’s detention until 31 March 1997. The court considered that the applicant had been arrested on 17 March 1994 and noted that from 22 March to 8 June 1994 he had been serving a prison sentence. Likewise, from 23 December 1995 to 11 January 1996 he had been serving another sentence. Consequently, he had been detained on remand for a period of two years, six months and twenty-seven days, which exceeded time-limits fixed by Article 222 of the new Code of Criminal Procedure. The Court further considered that the lawfulness of the applicant’s detention had been repeatedly examined by the courts. In the light of the evidence gathered in the case, their arguments in support of the applicant’s detention appeared correct and should be accepted as well-founded. The proceedings against the applicant could not have been terminated on the grounds which could not be effectively counteracted by the Regional Court, such as the fact that the applicant and other accused had submitted various requests for evidence to be taken, and that already when the proceedings were well advanced, for instance during the hearings held on 30 July and 30 and 31 October 1996. The Court further had regard to the fact that certain witnesses failed to comply with the court summonses. Therefore the grounds on which detention could be prolonged beyond periods fixed by the Code of Criminal Procedure, listed in Article 222 § 4 of the Code were obtained in the case and necessitated the prolongation of the applicant’s detention.
On 7 March 1997 the Bielsko-Biała Regional Court convicted the applicant of three counts of armed robbery and sentenced him to seven years of imprisonment and a fine with twenty days of imprisonment in default.
On 28 November 1997 the Katowice Court of Appeal amended this judgment in part, in that it acquitted the applicant of one count of robbery, reduced his sentence to six years of imprisonment and upheld the judgment in its remainder.
On 30 January 1998 the applicant lodged a cassation appeal with the Supreme Court against the judgment of 28 November 1997.
On an unspecified later date the applicant was released.
2. The applicant’s medical treatment
In July 1994 the applicant, at the prosecutor’s request, was examined in the forensic medicine ward of the Regional Health Centre in Bielsko-Biała. It was established that he could remain in detention if appropriate medical care was given to him.
On 19 July 1994 the applicant was examined by a court medical expert.
On 5 December 1994 the Wadowice District Prosecutor refused to institute investigations concerning the alleged offence of refusal of medical care to the applicant, finding that, in fact, the applicant had been receiving appropriate care.
On 20 December 1994 the applicant was examined by a medical panel which did not find any counter-indications for his continued detention.
On an unspecified later date before January 1995 the applicant had been examined and consulted by specialists in the Kraków Prison Hospital.
By a letter of 18 January 1995 the Bielsko-Biała Regional Court- Penitentiary Division reminded the applicant that he had been examined by a court expert and that he had also been repeatedly examined by physicians of Wadowice prison. It had been demonstrated that his detention did not fall within the ambit of circumstances referred to in Article 218 of the Code of Criminal Procedure.
On 7 March 1995 the applicant was examined by a medical panel, composed of, inter alia, an orthopaedist and a surgeon, found that he could be maintained in custody.
On 17 May 1995 the Bielsko-Biała Regional Court ordered that the applicant should be examined by a physician, having a status of a court expert, and that a relevant expert opinion be prepared as to whether his continued detention on remand was compatible with his health.
In a report of 13 June 1995 the forensic medicine ward of the Regional Health Centre in Bielsko-Biała stated that the applicant, on numerous occasions, had been examined by physicians at the prison, that numerous medical analyses and additional examinations had been made, which, in essence, had shown that the applicant had not had any particular pathological symptoms. His complaints related in particular to frequent headaches and vertigos. The physicians had diagnosed him as suffering from discopathy. In conclusion, the applicant who also suffered from certain sequelae of a trauma to his right shoulder could remain in detention.
On an unspecified date before 11 October 1995 the applicant was examined by a neurologist and had had an electroencephalography, which had not showed any pathological changes.

By letters of 28 August 1995 and 20 October 1995 the applicant was informed by the Central Prison Administration that his complaints had been examined and that no lack of diligence had been established on the part of the prison medical services.
On an unspecified date the Bielsko-Biała Regional Court, having found that the applicant’s health was not such as to justify a conclusion that his continued detention was incompatible with the requirements of Article 218 of the Code of Criminal Procedure, prolonged his detention until 10 March 1995.

By an opinion of 31 December 1995 the same court expert, who had already examined the applicant in July 1994 and in June 1995, stated that the applicant suffered from sequelae of trauma to his right shoulder, significant obesity, hypertension and heart condition. This syndrom in itself did not amount to a categorical counter-indication for the applicant’s continued detention. However, the persistent pains in his shoulder necessitated that the rehabilitation be undertaken as soon as possible under the supervision of an experienced orthopaedist, either in a civil or in a prison hospital.
On 15 March 1996 a physician of the Bielsko-Biała District Detention Centre issued a medical certificate to the effect that the applicant was suffering from hypertension, and from sequelae of a trauma to his right shoulder, from discopathy and psoriasis. He was not rehabilitated, despite the orthopaedist’s recommendation, as there was no such possibility in the conditions of the detention centre. He was also taking significant amounts of various medicines, which had not brought about any significant amelioration of his state.
On 15 April 1996 the applicant was admitted to the prison hospital of Bytom prison, but he refused to give his consent for staying there.
On 13 May 1996 the Bielsko-Biała District Prosecutor refused to institute criminal proceedings against persons responsible for the alleged offence of the applicant’s unlawful deprivation of liberty in conditions which entailed danger to his health, finding that the applicant had been kept in detention on the basis of valid decisions of competent authorities, and that the lawfulness and justified character of his detention had repeatedly been examined in the context of various appeals filed by the applicant, also as to its alleged incompatibility with his health. The prosecutor concluded that no criminal offence had been committed.
On an unspecified date before July 1996 the applicant was put in the hospital of the Bytom prison. A medical opinion of 18 July 1996 stated that the applicant had complained about pains and limited movement of his right arm, caused by an accident, certain pains in his spine, headaches and lack of appetite. The applicant’s condition necessitated a permanent pharmaceutical treatment of his hypertension and periodical treatment of his spine problems. Also, a treatment to bring his right shoulder to full efficiency was indicated. Apparently, the applicant’s actual pains were less severe than he had reported. Likewise, the range of movement of his right shoulder seemed to be wider than complained of. The physician concluded that the applicant could be maintained in detention and that the necessary treatment could be provided by the prison medical services.

On 8 August 1996 the Bielsko-Biała Regional Prosecutor upheld this decision of 13 May 1996 finding, first, that there were no grounds on which to believe that the applicant’s detention could be unlawful. It had repeatedly been reviewed by competent authorities who had found that the allegations of unlawfulness were ill-founded. It was emphasised that the applicant had very often been examined by prison physicians and that he had access to appropriate medical care, available in conditions of detention. The only limitation to this access concerned the rehabilitation treatment, but this was due simply to the fact that the detention centre was not in a position to ensure this kind of medical care to detained persons. This circumstance alone could not serve as a basis for the applicant’s release as it had been established by way of expert medical opinions that his ailments were not severe enough to fall within the scope of Article 218 of the Code of Criminal Procedure. In conclusion, the applicant’s allegations that his detention could amount to a criminal offence were entirely implausible and should be regarded as attempts to put pressure on the justice administration organs.
On 19 February 1997 a medical expert opinion was submitted to the Bielsko-Biała Regional Court. The expert had examined the applicant and analysed the entries in his voluminous medical records. He stated that the applicant suffered significant obesity, had sustained a trauma of his right shoulder with a persistent pain syndrome, had a light hypertension and very light decrease of audition, caused by slight damage of a hearing nerve. It transpired from the entries in the applicant’s records that he had very often requested medical advice and had been taking great quantities of painkillers and anti-inflammatory medicines. In conclusion, the applicant’s ailments were not of such severity as to prevent him either from being detained on remand, or from serving a prison sentence. It was true that the rehabilitation treatment could not be provided in prison, and that, if postponed for a long time, this could lead to a gradual deterioration in the state in the applicant’s arm.
B. Relevant domestic law and practice
1. Evolution of Polish criminal law in the relevant period
Polish criminal legislation was amended several times during the relevant period. The Code of Criminal Procedure enacted in 1973 (“old” Code) was replaced by a new Code of Criminal Procedure, adopted by Parliament (Sejm) on 6 June 1997, and which entered into force on 1 September 1998.
The “old” Code was significantly amended by the Law of 29 June 1995 on Amendments to the Code of Criminal Procedure and Other Criminal Statutes. This Law entered into force on 1 January 1996. However, the entry into force of the provisions concerning imposition of detention on remand was postponed until 4 August 1996. In pursuance of these provisions, detention on remand was to be imposed by a judge (whereas before it was imposed by a prosecutor - see section 2 below).
The second amendment, effected by the Law of 1 December 1995 on Amendments to the Law of 29 June 1995 (commonly referred to as “the Interim Law of 1 December 1995”) entered into force on 1 January 1996.
2. Preventive measures
The Code of Criminal Procedure (“old”), applicable at the relevant time, listed as "preventive measures", inter alia, detention on remand, bail and police supervision.
After the bill of indictment was transmitted to the court, relevant orders were to be made by the court. A decision concerning preventive measures could be appealed to a higher court.
3. Grounds for detention on remand
Article 217 of the “old” Code of Criminal Procedure, as applicable at the relevant time, provided that a person could be held in detention on remand if there were serious grounds for believing that this person would abscond, did not have a permanent address or his/her identity could not be established. Further, detention could be imposed if there were serious grounds for believing that there was a risk of collusion or that an accused would otherwise jeopardise criminal proceedings. Finally, alternative grounds for detention on remand were either the fact that an accused was charged with an offence of a particular danger to society or that he was a recidivist within the meaning of the Criminal Code.
Pursuant to Article 218 of the “old” Code of Criminal Procedure, if there were no special considerations to the contrary, detention on remand should not be imposed or should be lifted, if it involved danger to life or limb or entailed particular hardship for a suspect or his family.
After the Interim Law of 1 December 1995 entered into force on 1 January 1996, grounds of imposition of detention on remand were restricted to situations in which there was a reasonable risk of absconding, or that a suspect would go into hiding, in particular when his identity could not be established or he had no permanent domicile. Secondly, detention could be imposed if there was a reasonable risk that the suspect would attempt to induce witnesses to give false testimony or to hinder the proper course of proceedings by any other unlawful means.
4. Proceedings to examine the lawfulness of detention on remand
At the material time there were three types of proceedings enabling a detainee to challenge the lawfulness of his detention and thus possibly obtain release. Under Article 221 § 2 of the “old” Code of Criminal Procedure he could appeal to a court against a detention order made by a prosecutor (see above). Under Article 222 §§ 2(1) and 3 he could appeal against a further decision by that court prolonging his detention on a prosecutor's request. Finally, under Article 214 an accused could at any time request the competent authority to quash or alter the preventive measure applied in his case. Such an application had to be decided by the prosecutor or, after the bill of indictment had been lodged with the court competent to deal with the case, by that court, within three days.
5. Statutory time-limits for detention on remand
Until 4 August 1996 the law did not fix any time-limits concerning detention on remand in judicial proceedings. During the investigations, the prosecutor could order detention for up to three months. Prolongation of this period was possible by a court order, for a period not exceeding one year, and for any further periods, by a decision of the Supreme Court given upon a request of the Prosecutor General
Article 222 of the Code of Criminal Procedure, as applicable from 4 August 1996, provided insofar as relevant:
"3. The whole period of detention on remand until the date on which the first-instance court gives judgment may not exceed one year and six months in cases concerning offences. In cases concerning serious offences this period may not exceed two years.
4. In particularly justified cases the Supreme Court may, upon the request of the court competent to deal with the merits of the case, ... prolong detention on remand for a further fixed period exceeding the periods referred to § ... 3, when it is necessary in connection with a suspension of the proceedings, a prolonged psychiatric observation of the accused, when evidence needs to be obtained from abroad or when the accused has deliberately obstructed the termination of the proceedings within the time-limits set out in § 3.”
However, under Article 10 (a) of the Interim Law of 1 December 1995 different rules applied in respect of persons whose detention on remand started prior to 4 August 1996. This article provided:
“1. In cases where the total period of detention on remand which started prior to 1 August 1996 exceeds the [maximum] time-limits referred to in Article 222 §§ ... and 3 of the Code of Criminal Procedure [as amended by the Law of 29 June 1995 on Amendments to the Code of Criminal Procedure and Other Criminal Statutes], the accused shall be maintained in detention until the Supreme Court gives a decision on a request for prolongation of such detention under Article 222 § 4 of the Code of Criminal Procedure.
2. In cases referred to in § 1, if no [such] request has been lodged, detention shall be lifted not later than 1 January 1997.”
Under all the relevant provisions of the Code of Criminal Procedure read together, a detainee was entitled to appeal against any decision prolonging his detention on remand, regardless of whether it had been made at the investigative or judicial stage of proceedings. However, no appeal lay in law either against a decision containing a request under Article 222 § 4, or against a decision of the Supreme Court granting such a request.


ITEMID: 001-119678
LANGUAGEISOCODE: ENG
RESPONDENT: DEU
BRANCH: CHAMBER
DATE: 2013
DOCNAME: CASE OF RADU v. GERMANY
IMPORTANCE: 3
CONCLUSION: No violation of Article 5 - Right to liberty and security (Article 5-1 - Deprivation of liberty;Lawful arrest or detention;Procedure prescribed by law;Article 5-1-a - Conviction)
JUDGES: Aleš Pejchal;Angelika Nußberger;Ann Power-Forde;Ganna Yudkivska;Helena Jäderblom;Mark Villiger
TEXT: 5. The applicant was born in 1962. He is currently detained in Riedstadt Psychiatric Hospital.
6. On 26 January 1983 the Frankfurt am Main Regional Court convicted the applicant on two counts of murder and sentenced him to seven years’ imprisonment. It found that the then nineteen-year-old applicant, acting with full criminal responsibility, had killed the parents of his girl-friend in 1982 by stabbing them twenty-five times following a quarrel. He was released from prison in January 1987.
7. On 15 March 1995 the Gießen Regional Court convicted the applicant of homicide. It sentenced him to eight years and six months’ imprisonment and ordered his placement in a psychiatric hospital under Article 63 of the Criminal Code (see paragraph 41 below). It found that in April 1994, the applicant had killed his former partner by stabbing her eight times following a clash caused by the fact that his former partner had started an intimate relationship with a tenant living in their house. The applicant had subsequently attempted to kill himself.
8. The Gießen Regional Court, having consulted experts Sch. and P., further considered that the applicant’s placement in a psychiatric hospital had to be ordered. It found that the applicant had committed his offence with diminished criminal responsibility (Article 21 of the Criminal Code; see paragraph 39 below). His capacity to control his acts had been substantially diminished upon commission of the act owing to a profound consciousness disorder (tiefgreifende Bewußtseinsstörung). He suffered from a serious personality disorder characterized by violent outbursts which led to his diminished capability to control his acts. Having regard to his condition, it was to be expected that the applicant would kill again if he found himself in a similar conflict situation in a relationship. The court mitigated the applicant’s prison sentence owing to the fact that he had acted with diminished criminal responsibility (Article 49 of the Criminal Code, see paragraph 40 below). As the applicant did not lodge an appeal on points of law, the judgment became final.
9. The applicant served four years of his prison sentence. On 14 April 1998 he was then transferred to the Haina Psychiatric Hospital. In subsequent proceedings for review of the applicant’s detention, the medical director of that hospital came to the conclusion that the applicant had been wrongfully placed in a psychiatric hospital as he had never suffered from a persisting pathological mental disorder. He was an “accentuated personality” whose profile was still normal and did not suffer from a personality disorder as defined by the World Health Organization. He lacked true motivation to complete a therapy aimed at resolving crisis situations in relationships. It was therefore very likely that he would commit another capital offence in the context of a serious crisis in a relationship if released. The court dealing with the execution of sentences thereupon ordered the applicant’s retransfer to Kassel Prison in June 2000, where the applicant served the remainder of his prison sentence.
10. On 22 October 2002 the Frankfurt am Main Court of Appeal (file no. 3 Ws 557/02) dismissed the applicant’s appeal against the decision of the Marburg Regional Court of 17 April 2002. The latter had decided not to suspend the remainder of the applicant’s prison sentence and grant probation and not to declare the applicant’s placement in a psychiatric hospital terminated.
11. The Court of Appeal noted that the Regional Court had consulted a psychiatric expert, S. In his report dated 17 September 2001, the latter had found that at the time of his act, and contrary to the conclusions drawn by the Gießen Regional Court, the applicant had not suffered from a serious personality disorder diminishing his criminal responsibility. Agreeing with psychiatric experts who had examined the applicant in 1982, 1994 and 1995, expert S. considered that the applicant did not suffer from a serious mental abnormality (Article 20 of the Criminal Code; see paragraph 38 below). From a medical point of view, his detention in a psychiatric hospital was therefore not justified.
12. The Court of Appeal considered, however, that the applicant’s detention in a psychiatric hospital was not to be declared terminated. It noted that the order for the applicant’s placement in a psychiatric hospital by the sentencing court was the result of an erroneous legal qualification of the applicant’s condition on the basis of a correct factual basis. This assessment could not be corrected by the courts dealing with the execution of sentences as doing so would violate the constitutional principle of the finality of judicial decisions.
13. Since 13 October 2003 the applicant, having fully served his prison sentence, is detained in a psychiatric hospital, initially in Hanau.
14. On 28 April 2006 the Gießen Regional Court, in review proceedings under Article 67e of the Criminal Code (see paragraph 42 below) in which the applicant was represented by counsel, declined to suspend the order for the applicant’s confinement in a psychiatric hospital and to grant probation.
15. The Regional Court noted that in the submissions of the medical director of the Hanau Psychiatric Hospital, there was still a risk that the applicant, who had already killed three people, committed similar offences if released. However, that risk did not stem from a mental abnormality of the applicant, but from certain characteristics of his personality which permitted an escalation in a crisis within a relationship. Therefore, the medical director of the psychiatric hospital had suggested the applicant’s retrospective preventive detention (see paragraphs 49-52 below).
16. The Regional Court had further consulted a psychiatric and neurological expert, B. The latter had found in his report of 9 November 2005 that the applicant suffered from a personality disorder characterized by emotional instability and a disposition to react in an uncontrolled violent manner. That disorder was not pathological and was, from a psychiatric point of view, not a serious mental abnormality (see Article 20 of the Criminal Code). He agreed in this respect with the findings of psychiatric experts S. (consulted in 2001) and Sch. (consulted in 1994) who had equally found that the applicant did not suffer from a pathological personality disorder for the purposes of Article 20 of the Criminal Code. Expert B. further considered that the applicant, who had not learnt to deal with conflicts arising in relationships since his past offences, had a disposition to and was liable to commit similar offences as the one which had led to his placement in a psychiatric hospital if released.
17. The Regional Court noted that it was impossible from a legal point of view to order the applicant’s retrospective preventive detention under Article 66b of the Criminal Code (see paragraphs 50-52 below). In particular, there was no new evidence indicating that the applicant was particularly dangerous. Furthermore, the court was legally precluded from taking into account the applicant’s conviction in 1983 on two counts of murder as a previous conviction, as it dated back too long. The Public Prosecutor’s Office had accordingly withdrawn its requests to declare the applicant’s confinement in a psychiatric hospital terminated and to order his retrospective preventive detention.
18. The Regional Court considered that the applicant’s continued detention in a psychiatric hospital had to be ordered. It noted that expert B. had confirmed previous findings to the effect that the order made by the sentencing Gießen Regional Court for the applicant’s detention in a psychiatric hospital was based on an erroneous legal qualification on the basis of correctly established facts.
19. The Regional Court argued that this situation differed from a situation in which the sentencing court had wrongly established the relevant facts as to a person’s diminished criminal responsibility. In the latter case, a person who had never suffered from defects warranting placement in a psychiatric hospital could not be expected to undergo psychiatric treatment independently of his criminal guilt. In that case, the termination of the confinement by the courts dealing with the execution of sentences made it unnecessary for the person concerned to request the reopening of the criminal proceedings.
20. Conversely, in the present case, the courts dealing with the execution of sentences would breach the constitutional principle of the finality of judgments if they replaced the legal qualification of the facts by the sentencing court by their own legal qualification. A reopening of the proceedings was not possible in these circumstances. The Regional Court further considered that Article 67d § 6, read in conjunction with Article 66b § 3 of the Criminal Code (see paragraphs 44 and 51 below), just as the caselaw previously established on that issue (see paragraphs 45-48 below), concerned only the order for placement in a psychiatric hospital based on a wrong establishment of the facts.
21. The Regional Court, endorsing the findings of expert B., further found that the applicant’s continued detention was necessary as the applicant was still dangerous to the public. As there was a risk that the applicant would kill a person for the fourth time if released, his detention was not disproportionate.
22. The applicant appealed against the Gießen Regional Court’s decision. He argued that his detention in a psychiatric hospital had to be declared terminated under Article 67d § 6 of the Criminal Code as he did not suffer from a disorder which had to be considered as pathological. Therefore, his placement in a psychiatric hospital could not be justified under Article 63 of the Criminal Code.
23. On 16 June 2006 the Frankfurt am Main Court of Appeal dismissed the applicant’s appeal. It found that the applicant’s detention was not to be terminated under Article 67d § 6 of the Criminal Code. It noted that expert B., consulted by the Regional Court, had found in accordance with all experts consulted previously that the applicant suffered from a personality disorder characterized by emotional instability. His tendency to uncontrolled outbursts of fury or violence and his inability to control his conduct was not, however, pathological. The applicant’s unchanged condition was not a persisting disorder which fell within the ambit of Article 63 of the Criminal Code.
24. Referring to its decision dated 22 October 2002 (see paragraphs 1012 above), the Court of Appeal found that the applicant’s placement in a psychiatric hospital was not the result of an erroneous establishment of the relevant facts, that is, the diagnosis of the applicant’s condition. It was the result of an erroneous legal qualification of the applicant’s condition on the basis of correctly established facts. The sentencing court had qualified the applicant’s offence as being the result of a serious personality disorder and had ordered the applicant’s detention in a psychiatric hospital without taking into account that a disorder for the purposes of Article 63 of the Criminal Code had to be a persisting condition. However, this erroneous legal assessment was to be corrected in proceedings following an appeal on points of law. It could no longer be corrected in the proceedings dealing with the execution of a sentence as doing so would violate the constitutional principle of the finality of legal decisions.
25. The Court of Appeal further confirmed that the newly enacted Article 67d § 6 of the Criminal Code did not alter that conclusion. Referring to its previous decisions (including, in particular, its decision of 3 June 2005, file no. 3 Ws 298 and 299/05, see paragraph 48 below), it considered that that provision, which did no more than codify the case-law developed previously by the courts dealing with the execution of sentences, also did not cover placements in a psychiatric hospital based on an erroneous legal qualification (as opposed to factual assessment) by the sentencing court.
26. Endorsing the findings of the Regional Court, the Court of Appeal further found that it was very likely that the applicant would seriously harm others, especially in case of a crisis in a relationship, if released. Having regard to the fact that he had already killed three people, his continued detention was proportionate. The applicant had not changed his attitude and had not learnt to control his conduct.
27. On 14 July 2006 the applicant lodged a constitutional complaint with the Federal Constitutional Court against the decisions taken by the Regional Court and the Court of Appeal. He submitted, in particular, that his continued detention in a psychiatric hospital violated his constitutional right to liberty. He argued that under the clear wording of Article 67d § 6 of the Criminal Code, his detention had to be declared terminated as he had never suffered from a pathological mental disorder within the meaning of Article 20 of the Criminal Code. Therefore, the requirements for his further detention under Article 63 of the Criminal Code were not met and his detention was unlawful.
28. On 19 October 2006 the Federal Constitutional Court declined to consider the applicant’s constitutional complaint as it lacked prospects of success (file no. 2 BvR 1486/06).
29. The Federal Constitutional Court reiterated that it examined the application of legal provisions other than those of constitutional law only to a limited extent. The application of those provisions by the courts dealing with the execution of sentences had not been arbitrary. Even having regard to the importance of the constitutional right to liberty, constitutional law did not prohibit the courts’ refusal to apply Article 67d § 6 of the Criminal Code to cases in which the sentencing court had only made an error of law in the judgment ordering the detention. The sentencing court’s application of the law had become final and no reopening of the proceedings was permitted on that ground. The finality of judgments guaranteed legal certainty, which was a principle protected by the rule of law alongside the principle of justice (materielle Gerechtigkeit). It was in the first place for the legislator to balance these competing principles enshrined in the rule of law.
30. The Federal Constitutional Court’s decision was served on the applicant’s counsel on 13 November 2006.
31. On 26 March 2007, 21 April 2008, 14 April 2009 and 29 January 2010 the Gießen Regional Court decided not to suspend the order for the applicant’s placement in a psychiatric hospital and not to grant probation.
32. The Gießen Regional Court had heard the medical director of the Hanau Psychiatric Hospital prior to its decisions, who had repeatedly confirmed that the applicant did not suffer and had never suffered from a pathological disorder justifying his placement in a psychiatric hospital. However, having regard to his personality and his lack of motivation to bring about a change in his personality, it was likely that he would commit further similarly serious offences as the one having let to his placement in a psychiatric hospital if released.
33. The Regional Court’s decisions were all subsequently confirmed by the Frankfurt am Main Court of Appeal. The latter stressed on several occasions, in particular in its decision dated 29 August 2008, that the Psychiatric Hospital was obliged to offer the applicant a suitable therapy even if he did not suffer from a pathological personality disorder. It equally stressed, for example in its decision dated 30 June 2009, that the applicant, for his part, had to show to be ready to undergo therapy.
34. In January 2010 the applicant was provisionally transferred from Hanau Psychiatric Hospital, which was being closed, to Wiesloch Psychiatric Hospital.
35. On 21 March 2011 the Heidelberg Regional Court ordered the applicant’s detention in a psychiatric hospital to continue.
36. On 1 April 2011 the applicant was transferred from Wiesloch to Riedstadt Psychiatric Hospital where he is currently detained.
37. On 18 January 2012 the Darmstadt Regional Court ordered the applicant’s confinement in a psychiatric hospital to continue. On 5 March 2012 the Frankfurt am Main Court of Appeal dismissed the applicant’s appeal against that decision. The psychiatric expert H. consulted by the court had confirmed that the applicant had a disposition to emotional outbursts and a limited capability to control his impulsive behavior and that his personality deviated from a normal personality in these respects. However, these deviations were not so serious as to amount to a personality disorder and even less to “any other serious mental abnormality” within the meaning of Article 20 of the Criminal Code. There was a high risk that the applicant committed further capital offences in a conflict situation if released. The Court of Appeal stressed that it would be possible for the applicant to undergo a therapy in a psychiatric hospital and to reduce his dangerousness significantly thereby. However, he lacked sufficient motivation to complete the therapies he had started. Despite this, the hospital staff remained under an obligation to offer the applicant suitable therapies and to attempt to motivate him to undergo therapy.
38. Article 20 of the Criminal Code contains rules on the lack of criminal responsibility owing to mental disorders. It provides that a person who, upon commission of an act, is incapable of appreciating the wrongfulness of the act or of acting in accordance with such appreciation owing to a pathological mental disorder, a profound consciousness disorder, a mental deficiency or any other serious mental abnormality acts without guilt.
39. Article 21 of the Criminal Code governs diminished criminal responsibility. It provides that the punishment may be mitigated in accordance with Article 49 § 1 of the Criminal Code if the perpetrator’s capacity to appreciate the wrongfulness of the act or of acting in accordance with such appreciation is substantially diminished upon commission of the act owing to one of the grounds indicated in Article 20 of the Criminal Code.
40. Article 49 § 1 of the Criminal Code contains rules on the fixing of a penalty in cases in which the law requires or allows for a mitigation of the penalty under that provision. It provides, in particular, that in cases of sentences of imprisonment for a fixed term, no more than three quarters of the statutory maximum term may be imposed (Article 49 § 1 subparagraph 2).
41. Article 63 of the Criminal Code provides that if someone commits an unlawful act without criminal responsibility (Article 20 of the Criminal Code) or with diminished criminal responsibility (Article 21 of the Criminal Code), the court shall order his placement in a psychiatric hospital if a comprehensive assessment of the perpetrator and his act reveals that, as a result of his condition, he can be expected to commit serious unlawful acts and that he is therefore dangerous to the general public.
42. Pursuant to Article 67e of the Criminal Code, the court (that is, the chamber responsible for the execution of sentences) may review at any time whether the further execution of the order for a person’s placement in a psychiatric hospital should be suspended and a measure of probation applied. It is obliged to do so within fixed time-limits (paragraph 1 of Article 67e). For persons detained in a psychiatric hospital, this time-limit is one year (paragraph 2 of Article 67e).
43. Article 67d of the Criminal Code contains provisions on the duration of detention. Paragraph 2 of that provision provides that if there is no provision for a maximum duration of the confinement or if the time-limit has not yet expired, the court shall suspend on probation further execution of the detention order as soon as it is to be expected that the person concerned will not commit any further unlawful acts on his or her release. Suspension shall automatically entail supervision of the conduct of the person concerned.
44. Article 67d § 6 of the Criminal Code, in the version in force at the relevant time, provided:
“(6) If, after enforcement of an order for placement in a psychiatric hospital has started, the court finds that the conditions for the measure no longer persist or that the continued enforcement of the measure would be disproportionate, it shall declare the measure terminated. On termination of the measure, the conduct of the person concerned shall be supervised. ...”
45. Article 67d § 6 was inserted into the Criminal Code together with Article 66b by the Retrospective Preventive Detention Act (Gesetz zur Einführung der nachträglichen Sicherungsverwahrung) of 23 July 2004, which entered into force on 29 July 2004. It codifies the case-law previously established by the courts dealing with the execution of sentences concerning the termination of a person’s confinement in a psychiatric hospital in cases in which that person no longer suffered, or had in fact never suffered, from a condition excluding or diminishing his or her criminal responsibility.
46. Under that case-law, a person’s detention in a psychiatric hospital had to be terminated in cases in which it was established that the person concerned no longer suffered from a mental disorder within the meaning of Article 20 of the Criminal Code at the time of the decision of the court dealing with the execution of sentences, notably as he or she has been cured (see, for instance, Frankfurt am Main Court of Appeal, file no. 3 Ws 1119/01, decision of 26 November 2001; Frankfurt am Main Court of Appeal, file no. 2 Ws 572/02, decision of 22 October 2002, NStZ 2003, pp. 222 ss.; Frankfurt am Main Court of Appeal, file no. 3 Ws 298299/05, decision of 3 June 2005; and the references quoted in the decision dated 12 May 2010 of the Federal Court of Justice, file no. 4 StR 577/09).
47. Moreover, the detention was to be terminated in cases in which such a disorder did not exist from the outset, but where the sentencing court had concluded on the basis of erroneous facts that it did exist (erroneous placement in a psychiatric hospital for factual reasons). It was only decisive that at the time of the decision of the court dealing with the execution of sentences, it has been established that the conditions for a confinement in a psychiatric hospital were not met (see, for instance, Frankfurt am Main Court of Appeal, file no. 3 Ws 1119/01, decision of 26 November 2001; Frankfurt am Main Court of Appeal, file no. 2 Ws 572/02, decision of 22 October 2002, NStZ 2003, pp. 222 ss.; Frankfurt am Main Court of Appeal, file no. 3 Ws 298-299/05, decision of 3 June 2005).
48. Conversely, the domestic courts dealing with the execution of sentences, whose view was supported by a number of scholars, repeatedly found that an erroneous placement in a psychiatric hospital based on purely legal errors by the sentencing court was not covered by Article 67d § 6 of the Criminal Code, despite the fact that the wording of that provision was open in that respect. Such a purely legal error arose in cases in which the sentencing court had correctly established the relevant facts relating to the mental disorder, but had wrongly classified it in law as a mental disorder within the meaning of Articles 20, 21 and 63 of the Criminal Code (see, for instance, Frankfurt am Main Court of Appeal, file no. 3 Ws 298-299/05, decision of 3 June 2005; and W. Stree / J. Kinzig, in: A. Schönke / H. Schröder, Strafgesetzbuch Kommentar, 28th edition, Munich 2010, Article 67d, no. 16 with many further references).
49. As mentioned above (see paragraph 45), the Retrospective Preventive Detention Act of 23 July 2004 inserted not only Article 67d § 6, but also Article 66b into the Criminal Code. The provision was aimed at preventing the release of persons who could no longer be detained in a psychiatric hospital because the conditions for placement under Article 63 of the Criminal Code were no longer met (including cases in which they had never been met from the outset), but who were still dangerous to the public (see German Federal Parliament documents (BTDrucks), no. 15/2887, pp. 10, 13/14).
50. Article 66b of the Criminal Code contains provisions for the retrospective order for a person’s placement in preventive detention. At the relevant time, paragraphs 1 and 2 of that provision authorised such an order if the person concerned had committed certain serious offences. In addition, following the person’s conviction, new evidence must have come to light which indicated that the convicted person presented a significant danger to the general public. Furthermore, it must be very likely that the person would again commit serious offences resulting in considerable psychological or physical harm to the victims.
51. Article 66b § 3 of the Criminal Code further provided at the relevant time that if an order for placement in a psychiatric hospital was declared terminated pursuant to Article 67d § 6 because the conditions excluding or diminishing criminal responsibility on which the order had been based did not exist at the time of the decision terminating the placement, the court could order preventive detention retrospectively under the following conditions. Firstly, the placement of the person concerned under Article 63 must have been ordered on the basis of several serious offences (listed in Article 66 § 3, first sentence). Alternatively, the person concerned must either already have been sentenced to at least three years’ imprisonment or must have been placed in a psychiatric hospital because of one or more such offences, committed prior to the offence having led to that person’s placement under Article 63. Secondly, a comprehensive assessment of the person concerned, his criminal acts and, in addition, his development during the execution of the measure must have revealed that it was very likely that the person would again commit serious offences resulting in considerable psychological or physical harm to the victims.
52. Article 66b § 3 and Article 67d § 6 of the Criminal Code remained valid also under the Reform of Preventive Detention Act (Gesetz zur Neuordnung des Rechts der Sicherungsverwahrung) of 22 December 2010, which entered into force on 1 January 2011, for offences committed after the entry into force of that Act. As a result of the abolition of paragraphs 1 and 2 of Article 66b of the Criminal Code by the said Act, the former paragraph 3, slightly amended, became the only provision of that Article.
53. Under Article 337 § 1 of the Code of Criminal Procedure, an appeal on points of law (Revision) may only be filed on the ground that the judgment was based on a violation of the law. Article 337 § 2 of the Code of Criminal Procedure provides that the law was violated if a legal provision was either not applied or was not applied correctly.
54. Article 359 of the Code of Criminal Procedure enumerates the circumstances in which criminal proceedings which were terminated by a final judgment may be reopened to the benefit of the convicted person. Under sub-paragraph 5 of that provision, this is the case, in particular, if new facts or evidence were produced which, alone or in connection with the evidence taken previously, may support the acquittal of the accused or an essentially different decision on a measure of correction and prevention. Conversely, the discovery of an error in law was not a ground listed in that provision for the reopening of criminal proceedings.
NON_VIOLATED_ARTICLES: 5
NON_VIOLATED_PARAGRAPHS: 5-1
NON_VIOLATED_BULLETPOINTS: 5-1-a