ITEMID: 001-59161
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: CHAMBER
DATE: 2001
DOCNAME: CASE OF DULAŞ v. TURKEY
IMPORTANCE: 2
CONCLUSION: Preliminary objection rejected (non-exhaustion);Violation of Art. 3;Violation of Art. 8;Violation of P1-1;Violation of Art. 13;Not necessary to examine Art. 18;Failure to comply with obligations under Art. 34 (former Art. 25);Pecuniary damage - financial award;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings
JUDGES: Elisabeth Palm
TEXT: 7. The facts of the case, particularly concerning events on or about 8 November 1993 when the gendarmes carried out an operation at Çitlibahçe, were disputed by the parties. The Commission, pursuant to former Article 28 § 1 (a) of the Convention, conducted an investigation with the assistance of the parties.
The Commission heard witnesses in Ankara on 7 February 1997. These included the applicant; Avni Dulaş her son; and Emin Bulen, a villager. The Commission also had regard to the oral evidence given by witnesses on 3 and 4 July 1996 in the case of Çakıcı (see Çakıcı v. Turkey [GC], no. 23657/94, ECHR 1999-IV), which concerned the same operation. This included the testimony of İzzet Çakıcı, whose brother had disappeared after being taken into custody by the gendarmes; Remziye Çakıcı, a villager and spouse of the disappeared person; Fevzi Okatan, previously muhtar of the village; Ertan Altınoluk the gendarme commander of the operation; and Mehmet Bitgin, a villager.
8. The Commission’s findings of fact are set out in its report of 6 September 1999 and summarised below (Section A). The applicant accepts the Commission’s findings of fact. The Government’s submissions concerning the facts are summarised below (Section B).
9. Çitlibahçe was in a district in which terrorist activity was intense in 1993. The PKK used to come to the village, holding meetings and taking food by force. The security forces made regular visits and operations were not uncommon. They told the villagers not to give food to the PKK.
10. The applicant, Avni Dulaş and Remziye Çakıcı all recalled an incident in July 1993 when villagers were forced by the security forces to pull up their tobacco crops. Although there was some disparity amongst the witnesses as to how this was done, the witnesses’ accounts were similar in stating that the tobacco crops were destroyed by order of the security forces. The gendarme commander who gave evidence before the Delegates denied that this occurred but recalled that he had destroyed hemp crops. The Commission did not make any finding in regard of this aspect as it was not the subject-matter of any specific complaint.
11. Shortly before 8 November 1993, PKK terrorists went to the village of Dadaş in the Hazro district and took away five teachers, the imam and the imam’s brother. All, save one of the teachers, were shot. The imam’s brother, though wounded, survived.
12. Following the discovery of the bodies of the teachers, the gendarmes at Hazro gathered information from their contacts and sources as to what had happened and who had been involved. They had descriptions of the villagers in the area who had been assisting the PKK in holding the group of teachers. On 8 November 1993, an operation, under the command of Lieutenant Altınoluk, was carried out by the Hazro gendarmes in Çitlibahçe, while gendarmes from Lice went to Bağlan nearby.
13. Concerning what happened during the operation at Çitlibahçe, the Commission’s Delegates had earlier found Lieutenant Altınoluk to be an evasive witness, with a volubly unhelpful response to questioning. They found a lack of sincerity in the way in which he drowned simple questions in long and complicated explanations, which were often contradictory and inconsistent. On the other hand, the Delegates had found that the villagers, Remziye Çakıcı, Fevzi Okatan and Mehmet Bitgin, who gave eyewitness accounts, were on the whole consistent and credible and that they were convincing in their demeanour and their response to questions. Their evidence was found to support the testimony of the witnesses heard in this case. In this regard, the Commission’s Delegates found the applicant to be a convincing witness, an elderly, simple and unsophisticated lady who was on the whole credible. Her oral testimony was largely consistent with the statement given by her to the Human Rights Association shortly after the incident. While there were some inconsistencies in her accounts, the Commission considered that they could be attributed to the applicant’s advanced years and the passage of time since the events in question. Her evidence accorded in essentials with that of her son Avni Dulaş and the villager Emin Bilen.
14. The Commission found that the Hazro gendarmes included Çitlibahçe in the operation since they intended to look for and take into custody Ahmet Çakıcı, who, as a person already under suspicion of involvement in PKK activities, would be likely to have information about the kidnap group that passed through the village.
15. When the gendarmes arrived at the village, early in the morning, they left their vehicles outside and entered. They gathered the men together in one place and the women in another. Ahmet Çakıcı had hidden. A search was carried out by the gendarmes, who also started setting fire to houses. Ahmet Çakıcı was found and taken into custody. He was last seen by the witnesses being taken by village guards and soldiers to the vehicles.
16. The applicant had gone into her house when she saw all the soldiers but had been forced to leave by the soldiers. They set fire to her house, which had seven rooms and was made of timber. The family stored provisions, crops and wheat inside and these, along with the furniture and other household goods, were destroyed. About fifty houses in the village were burned down. She stated that once they had caught Ahmet Çakıcı the gendarmes left. After the departure of the gendarmes, the village was left in ruins and villagers were forced to leave.
17. Having regard to the evidence as a whole, the Commission accepted the evidence of the applicant as regards its principal elements. It did not find the matters referred to by the Government as being indicative of bad faith or as materially undermining the credibility and reliability of the applicant and her witnesses, which its Delegates assessed in generally positive terms. While the Commission took note of the applicant’s age, its Delegates had not found any indication of mental infirmity that would cast doubt on her ability to give evidence.
18. The Commission found in conclusion that the applicant’s property, furniture and possessions were deliberately burnt and destroyed during an operation by security forces in the village of Çitlibahçe on 8 November 1993. This led to the evacuation of the village. The possessions burned included a fridge, television, kitchen utensils, household goods, and produce (including tobacco, wheat, barley, lentils, and winter provisions).
19. The applicant and other villagers went to Diyarbakır after the operation. Accompanied by her son and three or four other villagers, the applicant went to the Human Rights Association. She made a statement and thumbprinted it.
20. Sometime later, the applicant was summoned to a police station. In his evidence to the Delegates, her son, Avni Dulaş remembered that she had been summoned to the public prosecutor’s office in about the summer of 1995. He accompanied her there. She had been asked to make a statement. The public prosecutor read out of a file, stating that she had complained to Europe about Turkey. He told the Delegates that he thought the prosecutor was trying to put pressure on his mother.
21. The Government emphasised the terrorism which was prevalent in this region from the early 1990’s and created a public danger threatening the life of the nation. The PKK had killed thousands of innocent victims and exerted intolerable pressure on the local population. The operation in this case concerned an investigation into the kidnapping and killing of teachers and an imam.
22. The applicant had made no complaint to the public prosecutor about the alleged burning of her house and property by the gendarmes during the operation on 8 February 1993. She only made a statement to the public prosecutor when he summoned her after the case was communicated to the Government by the Commission. He issued a decision of non-jurisdiction, transferring the file to the Hazro governor. The Hazro Administrative Council began an investigation and found that her claims were unsubstantiated.
23. The Government submitted that the applicant’s various accounts, oral and written, were inconsistent and implausible, in particular the details purportedly noted down by the Human Rights Association in her application to the Commission.
24. On 11 May 2000, the Government submitted a copy of the statement taken by the Diyarbakır public prosecutor from the applicant via an interpreter on 10 October 1995. This had not been provided to the Commission.
25. According to the statement, thumbprinted by the applicant, the letter from the Ministry of Justice, the appended documents and the application to the Commission were read out to her through an interpreter and she was asked about them. She acknowledged that the thumbprint on the document was hers and that she did not remember who took the statement. As regarded the events, she could not remember the exact date but about two years before 20 or more army vehicles had come to Çitlibahçe, with soldiers and village guards. They rounded up the villagers and set fire to the houses. After the village burned down, she went to Diyarbakır.
26. The statement recorded that she was shown the application and letter of authority and asked about them. She stated the thumbprints were hers. She said that she thought her application was going to Ankara to claim her rights. She was illiterate and ignorant and did not know anything about European human rights. She made her statement to them as she thought this would get something done about the damage which she had suffered. She wanted the State to vindicate her rights. She did not want to start a case in Europe in the way that he <the public prosecutor> had explained and did not agree to foreign lawyers starting such a case. It was for the State to look after her rights. When she made a statement to the HRA, there had been a lot of people with her and they described the events also. The application which had been read out was accurate though and she had no complaints to make about the person who wrote it down. She had not started any court case in Hazro or Diyarbakır as she was poor and ignorant and did not know what to do.
27. Article 125 of the Turkish Constitution provides as follows:
“All acts or decisions of the administration are subject to judicial review ...
The administration shall be liable to indemnify any damage caused by its own acts and measures.”
28. The above provision is not subject to any restrictions even in a state of emergency or war. The latter requirement of the provision does not necessarily require proof of the existence of any fault on the part of the administration, whose responsibility is of an absolute, objective nature, based on a concept of collective liability and referred to as the theory of “social risk”. Thus the administration may indemnify people who have suffered damage from acts committed by unknown or terrorist authors when the State may be said to have failed in its duty to maintain public order and safety, or in its duty to safeguard individual life and property.
29. The principle of administrative liability is reflected in the additional Article 1 of Law no. 2935 of 25 October 1983 on the State of Emergency, which provides:
“... actions for compensation in relation to the exercise of the powers conferred by this Law are to be brought against the administration before the administrative courts.”
30. The Turkish Criminal Code makes it a criminal offence
– to deprive an individual unlawfully of his or her liberty (Article 179 generally, Article 181 in respect of civil servants),
– to oblige an individual through force or threats to commit or not to commit an act (Article 188),
– to issue threats (Article 191),
– to make an unlawful search of an individual’s home (Articles 193 and 194),
– to commit arson (Articles 369, 370, 371, 372), or aggravated arson if human life is endangered (Article 382),
– to commit arson unintentionally by carelessness, negligence or inexperience (Article 383), or
– to damage another’s property intentionally (Articles 526 et seq.).
31. For all these offences complaints may be lodged, pursuant to Articles 151 and 153 of the Code of Criminal Procedure, with the public prosecutor or the local administrative authorities. The public prosecutor and the police have a duty to investigate crimes reported to them, the former deciding whether a prosecution should be initiated, pursuant to Article 148 of the Code of Criminal Procedure. A complainant may appeal against the decision of the public prosecutor not to institute criminal proceedings.
32. If the suspected authors of the contested acts are military personnel, they may also be prosecuted for causing extensive damage, endangering human lives or damaging property, if they have not followed orders in conformity with Articles 86 and 87 of the Military Code. Proceedings in these circumstances may be initiated by the persons concerned (non-military) before the competent authority under the Code of Criminal Procedure, or before the suspected persons’ hierarchical superior (sections 93 and 95 of Law no. 353 on the Constitution and Procedure of Military Courts).
33. If the alleged author of a crime is an agent of the State, permission to prosecute must be obtained from local administrative councils (the Executive Committee of the Provincial Assembly). The local council decisions may be appealed to the Council of State; a refusal to prosecute is subject to an automatic appeal of this kind.
34. Any illegal act by civil servants, be it a crime or a tort, which causes material or moral damage may be the subject of a claim for compensation before the ordinary civil courts.
35. Proceedings against the administration may be brought before the administrative courts, whose proceedings are in writing.
36. Damage caused by terrorist violence may be compensated out of the Aid and Social Solidarity Fund.
37. Extensive powers have been granted to the Regional Governor of the State of Emergency by decrees enacted under Law no. 2935 on the State of Emergency (25 October 1983), especially Decree no. 285, as amended by Decrees nos. 424 and 425, and Decree no. 430.
38. Decree no. 285 modifies the application of Law no. 3713, the Anti-Terror Law (1981), in those areas which are subject to the state of emergency, with the effect that the decision to prosecute members of the security forces is removed from the public prosecutor and conferred on local administrative councils. These councils are made up of civil servants and are under the authority of the provincial governors who also head the security forces.
39. Article 8 of Decree no. 430 of 16 December 1990 provides as follows:
“No criminal, financial or legal responsibility may be claimed against the State of Emergency Regional Governor or a Provincial Governor within a state of emergency region in respect of their decisions or acts connected with the exercise of the powers entrusted to them by this decree, and no application shall be made to any judicial authority to this end. This is without prejudice to the rights of individuals to claim indemnity from the State for damage suffered by them without justification.”
According to the applicant, this Article grants impunity to the Governors and reinforces the powers of the Regional Governor to order the permanent or temporary evacuation of villages, to impose residence restrictions and to enforce the transfer of people to other areas. Damage caused in the context of the fight against terrorism would be “with justification” and therefore immune from suit.
VIOLATED_ARTICLES: 13
3
8


ITEMID: 001-98192
LANGUAGEISOCODE: ENG
RESPONDENT: NOR
BRANCH: ADMISSIBILITY
DATE: 2010
DOCNAME: FURUHOLMEN v. NORWAY
IMPORTANCE: 3
CONCLUSION: Inadmissible
JUDGES: Christos Rozakis;Dean Spielmann;George Nicolaou;Giorgio Malinverni;Khanlar Hajiyev;Sverre Erik Jebens
TEXT: The applicant, Mr Morten Furuholmen, is a Norwegian national who was born in 1963 and lives in Oslo. He was represented before the Court by Mr J.C. Elden, a lawyer practising in Oslo.
In 2007 the applicant was appointed by Borgarting High Court to act as defence counsel before it of a person, Mr A., whom the Oslo City Court had convicted, inter alia, of aggravated ill-treatment of his former wife Mrs B. and had sentenced to two years and three months’ imprisonment. Mr A. had been charged under Article 219 of the Penal Code of having repeatedly over a period of four months subjected Mrs B. to violence, including tying a strap around her legs and/or feet and hanging her from the ceiling, hitting and kicking her and using a strangulation grip on her, and committing acts of violence using different objects; threatening to kill her and refusing repeatedly to allow her to leave the apartment where they lived. He had also been charged, inter alia, under Article 132A with putting pressure on Mrs B. to withdraw her deposition to the police and/or not to appear in court and/or to give a false statement. Mr A. had previously been represented by other counsel before the City Court.
Mr A. disputed that such hanging as described in the indictment had taken place. In his written appeal submissions to the High Court the applicant announced that a reconstruction of the most serious incidents of violence would be necessary. After the Public Prosecutor declined this initiative, the applicant directed a formal request to the High Court to order a reconstruction of the alleged hanging incidents and additional investigative measures.
On 26 September 2007 the High Court rejected the request for a reconstruction of the alleged hanging incidents on the ground that such a reconstruction was assumed to have little evidentiary significance compared to the other evidence in the case and which had been described in the City Court’s judgment.
The High Court held the trial hearing from 18 to 29 October 2007. At the close of the hearing session of 25 October 2007 the applicant announced that he wished to present himself as a witness in the case in order to explain and show photographs from his own reconstruction of the hanging of the victim. The purpose was to prove that the hanging could not have taken place as stated by the victim.
On 26 October 2007 the High Court, after hearing arguments from each side, unanimously rejected the applicant’s request, finding it obvious that the reconstruction performed by him had no value as evidence. The reconstruction had been carried out in the absence of the victim and the accused and without any representative of the prosecution or other independent persons who could monitor or control the manner in which the reconstruction had been done. Therefore, all that could be derived from the reconstruction was counsel’s own allegations, which were devoid of any evidentiary value.
After the session of 26 October 2007, which had been held in the presence of the press and without any prohibition being imposed on referring to the proceedings, journalists invited the applicant to comment on the above-mentioned matter. He then made the photographs from the reconstruction available to the press, explained what the reconstruction showed and pointed out that it was absurd that the question of guilt was to be determined without this decisive material being made known to the jury.
On 27 October 2007 the Dagbladet and Dagsavisen newspapers published reports on the private reconstruction that the applicant had unsuccessfully sought to have admitted as evidence. This included photographs, his explanations and his comments that the case was a “miscarriage of justice” (“justismord”), that if the evidence had been admitted he would have been able to demonstrate that the hanging had not taken place as described by the victim and that his client would have been acquitted. The Public Prosecutor was quoted as having stated that, by having sought to introduce the private reconstruction as evidence, the applicant had lost his professional distance to the case.
On 29 October 2007 the High Court invited the applicant to explain his possible involvement in the above-mentioned media coverage. In a statement of 6 November 2007 he confirmed that he had been the source of the information published and acknowledged that this could be perceived by the High Court as unfortunate and apologised for that. However, he stressed that there was no reason to criticise him in this connection, even less any reason to view his conduct as having been improper.
By a judgment of 8 November 2007 the High Court, sitting with a jury, convicted Mr A. on charges of aggravated ill-treatment under Article 219 of the Penal Code and two offences of obstruction of justice under Article 132A. It sentenced him to three years and six months’ imprisonment.
For the assessment of the sentence, the High Court based itself notably on the following facts.
Mr A. was a Norwegian citizen, thirty-four years of age, originating from Bangladesh. In 2005 he had married Mrs B., a Bangladeshi national (probably born in October 1988).
The first incident of violence had occurred two weeks after the victim had arrived in Norway in March 2006. Mr A. had been irritated because Mrs B. had forgotten to move a bag of ice to a newly acquired fridge. Mr A. had shouted at her and - after his daughter had gone to bed- he had beaten her up. After this and until 25 August 2006, when Mrs B. had moved to a crisis centre for battered women, Mr A. had subjected her to violence on a number of occasions.
The High Court further relied on the victims’ statement that on four occasions Mr A. had punished her by hanging her by her arms and legs. The hanging could last for an hour or more and had often been combined with blows delivered to her body and the soles of her feet. The last occurrence had been a few days before the victim had been helped to get to the crisis centre.
The charges against Mr A. concerned aggravated, devious and in part dangerous physical and psychological abuse over time. The ill-treatment did not have an impulsive character but that of planned and systematic abuse. Some of the violence perpetrated had the character of torture, notably the hanging incidents and the blows to the soles of her feet. The ill-treatment had been unprovoked and had been perpetrated against a totally defenceless person who was in a relationship of dependence vis-à-vis Mr A. She was completely unfamiliar with the conditions of life in Norway and had nowhere to escape to. She lived in a constant situation of threats and fear with anxiety about further punishment. She feared being crippled for life or killed. She also feared being returned to Bangladesh as a dishonoured woman.
Mr A. appealed to the Supreme Court against the High Court’s procedure and the sentence.
In a decision delivered on the same date as the above judgment, the High Court imposed on the applicant a fine of 10,000 Norwegian kroner (NOK) for an offence against the good order of court proceedings (rettergangsbot). The High Court observed that publication of some of the evidence which the court had refused to admit to the case, before the case had been adjudicated, was unfortunate. Such publication could in principle contribute to influence the stance adopted by lay judges and jurors whilst pursuant to applicable rules of procedure only evidence that had been presented in court should be given weight. Where it was the defence counsel who has been the origin of the material being published, it could easily be perceived as an attempt to circumvent the courts’ decision to exclude the evidence and to influence the court extra-judicially. The High Court considered that such a conduct by a public official ought normally to be regarded as improper for the purposes of section 200 of the Administration of Court Act (domstolloven).
The High Court found that the publication of the photographs, seen together with the applicant’s comments to the press, had amounted to an unacceptable attempt to influence the jury’s determination of the question of guilt. The applicant had conceded that his aiding and abetting of the publication had been unfortunate.
The High Court concluded that the applicant had displayed improper conduct, which warranted severe criticism, and had done so with intent. The conditions for imposing a fine for an offence against the good order of court proceedings had been fulfilled and such a sanction should be imposed.
The applicant appealed against the High Court’s decision to the Supreme Court, challenging the merits of the imposition of the fine. He also asked the Supreme Court to hold an oral hearing on the matter, referring to the important issues of principle it raised.
Shortly thereafter the Public Prosecutor lodged a complaint against the applicant with the Norwegian Association of Advocates (Den Norske Advokatforening), alleging a breach of the code of ethics. The Association adjourned its examinations pending the outcome of his appeal to the Supreme Court. No further information has been supplied by the applicant regarding these proceedings.
By a decision of 28 April 2008 the Supreme Court unanimously quashed the High Court judgment of 8 November 2007, finding that the latter had failed to ensure that there was sufficient understanding of the case, as required by Article 294 of the Code of Criminal Procedure. In the present instance, the High Court had good reason to seek better insight into the circumstances surrounding the hanging of the victim, a central aspect of the case. This could among other ways, have been done - taking the victim’s explanation as a starting point – by carrying out a form of technical reconstruction or by obtaining an expert evaluation of the technical and medical conditions. The defendant’s objections on this point had been presented so early in the procedure that, bearing in mind the importance of the matter, such investigations would not have entailed significant inconvenience. The fact that there was no further investigation of the technical and medical conditions surrounding the incidents of hanging of the victim meant that a central issue in the case had not been sufficiently clarified and thus amounted to a procedural error. Since there was a reasonable possibility that the error had had an effect on the substance of the judgment convicting Mr A., this part of the judgment ought therefore to be quashed. In view of this, and finding no reason to maintain the remainder of the High Court judgment, the Supreme Court quashed the judgment in its entirety.
In another decision of the same date the Supreme Court unanimously dismissed the applicant’s appeal against the High Court order that he pay a fine for an offence against the good order of court proceedings.
Mrs Justice Endresen stated the following reasons, which were upheld in the main by the remaining members.
It was clear that a court-appointed defence counsel was to be considered a “public officer” within the meaning of section 200 of the Administration of Court Act. The decisive issue was whether the conduct at issue could be regarded as “improper”. This legal standard was applied in a number of cases; it only covered matters that were unlawful and worthy of punishment. The problem at issue in the present case had not previously been submitted to the courts.
A starting point for the assessment should be the role of courts in judicial proceedings, namely to ensure the proper conduct of the proceedings and decide on the admissibility of evidence. A basic condition for the good order of judicial proceedings was that a court’s decision be respected even when a party perceived it as purposeless or unfair. The relevant statutory provisions contained detailed rules regulating the manner in which a party could challenge such a decision.
Although, technically speaking, the High Court’s decision in this case only concerned whether the evidence in question could be adduced before it, the applicant’s indirect imparting of the “evidence” clearly was disloyal in relation to the High Court’s refusal to admit the evidence to the file. According to Article 305 the jury should only take into account evidence adduced at the trial hearing. However, this did not mean that one should be indifferent about attempts to influence the members of the jury in other ways, as done by the applicant here.
Whether the applicant’
The criminal case against Mr A. had given rise to extensive comment in the press, which to a large extent affirmed that a particularly serious crime had occurred despite this having not been acknowledged by the accused. Whilst it was understandable that counsel for the defence felt a need to seek a better balance in press comments, this could hardly be given any weight in the assessment of the matter for which the applicant had been fined. What was of central importance in this case was not that counsel pleaded the case in the press but that he failed to respect the court’s decision regarding the admissibility of evidence.
Nor could the provisions on free speech protection be decisive. The High Court’s decision had not been aimed at limiting free speech nor had it entailed any such limitations. The applicant had been free to criticise both the decision and to elaborate on his criticism by giving an account of evidence that he wished to adduce. He could have expressed his criticism immediately. It was only in respect of the evidence that had been dismissed that he had to await the jury’s verdict before voicing his criticism.
The domestic laws of other countries went much further in prohibiting comments on evidence in pending criminal proceedings, without this having been considered to amount to a violation of Article 10 of the Convention. Also, “maintaining the authority and impartiality of the judiciary” was a legitimate aim that could justify interference with freedom of expression.
Further guidance on what might be considered improper in the sense of section 200 of the Administration of Court Act could be found in Chapter 12, item 2.3.2 of the Regulation on Advocates, namely the advocate’s duty to display restraint in order to hinder the danger of influence on the jury. Section 200 contained a sufficiently clear legal basis for the fine imposed in the present case.
Furthermore, the applicant’s freedom of expression had not been interfered with to any significant degree.
Defence counsel has the role of defending his or her client’s interests in the best possible manner and should be able to enjoy a considerable margin of error in this regard so that his or her work would not be unduly hindered by a risk of sanctions. However, this consideration could not be given much weight in the present instance. By carrying out his own “reconstruction” based on his own allegations about how the victim’s statements should be understood and by presenting himself as a witness in the case, the applicant had abandoned the core of his role as an advocate. Moreover, since it was established that the applicant’s aim had been to influence the jury’s verdict by rendering parts of the dismissed evidence public, the case raised no difficult issue of principle.
The applicant’s argument that the criticism against him had been unjustified as the dismissed evidence had been considered by the High Court to be without evidential value and consequently could not have influenced the jury, was beside the point. The criticism was justified already by his aims and his having shown disrespect for the court’s decision. Also, the fact that an item of evidence had been regarded as having no evidential value clearly did not mean that it would be incapable of influencing the jury, when presented by the press as decisive evidence and outside adversarial proceedings.
Finally, as to the applicant’s submission that the imposition of a prohibition on him on publicising the dismissed evidence was futile in view of the absence of any prohibition on the press or third parties on referring to the proceedings, Mrs Justice Endresen observed as follows. This argument had a certain weight in relation to the importance of the fact that the evidence could have been brought to the attention of the jury. This was so, even though the weight of the evidence had been accentuated particularly strongly by counsel making the essence of it known immediately after the High Court had refused it. However, this argument did not alter the fundamental consideration that the court’s role in assuming leadership in the conduct of the proceedings must be respected by those who act at a professional level in the proceedings.
Accordingly, the applicant’s conduct had been “improper” and warranted the imposition of a fine.
Section 200 in Chapter 10 (entitled “Punishment for Offences Against the Good Order of Court Proceedings ...”) of the Administration of Courts Act read:
“A public officer, legal representative, court assistant or privately appointed counsel, who is guilty of neglect or other improper matters during judicial proceedings .... may be punished by the imposition of a fine and may be liable to pay compensation in full or in part to the victim.”


ITEMID: 001-82966
LANGUAGEISOCODE: ENG
RESPONDENT: HRV
BRANCH: CHAMBER
DATE: 2007
DOCNAME: CASE OF HUSIC v. CROATIA
IMPORTANCE: 4
CONCLUSION: Violation of Art. 6-1
JUDGES: Christos Rozakis
TEXT: 4. The applicant was born in 1952 and lives in Zagreb.
5. Following her dismissal from work on 7 November 1994 the applicant brought a civil action in the Zagreb Municipal Court (Općinski sud u Zagrebu) on 16 December 1994 against her former employer seeking her reinstatement and the salary arrears. Since the entry into force of the Convention in respect of Croatia on 5 November 1997, the court held five hearings and obtained an expert opinion. The expert opinion received by the court on 13 February 2002 could not be served on the applicant because she had changed her address without notifying the court.
6. On 5 February 2003 the applicant lodged a constitutional complaint under section 63 (1) of the Constitutional Court Act. On 7 July 2003 the Constitutional Court (Ustavni sud Republike Hrvatske) accepted the applicant's complaint, finding a violation of her constitutional right to a hearing within a reasonable time. It ordered the Zagreb Municipal Court to give a decision in the applicant's case within six months following its publication in the Official Gazette and awarded her compensation in the amount of 7,500 Croatian kunas (HRK). The decision was published on 22 July 2003.
7. In its judgment of 4 February 2004 the Zagreb Municipal Court dismissed the applicant's claim as ill-founded. That judgement was served on the applicant on 1 April 2004. Following an appeal, on 13 September 2005 the Zagreb County Court (Županijski sud u Zagrebu) quashed the first-instance judgment and remitted the case.
8. In the fresh proceedings before the Zagreb Municipal Court a hearing was held on 3 March 2006. The hearing scheduled for 23 May 2006 was adjourned because the summons sent to the applicant had been returned. At the next hearing held on 6 November 2006 the applicant extended her claim to another defendant. The proceedings are still pending.
9. Article 29 § 1 of the Constitution (Ustav Republike Hrvatske, Official Gazette no. 41/2001 of 7 May 2001) reads as follows:
“In the determination of his rights and obligations or of any criminal charge against him, everyone is entitled to a fair hearing within a reasonable time by an independent and impartial court established by law.”
10. The relevant part of the Constitutional Act on the Constitutional Court (Ustavni zakon o Ustavnom sudu Republike Hrvatske, Official Gazette no. 49/2002 of 3 May 2002 – “the Constitutional Court Act”) reads as follows:
“(1) The Constitutional Court shall examine a constitutional complaint whether or not all legal remedies have been exhausted if the competent court fails to decide a claim concerning the applicant's rights and obligations or a criminal charge against him or her within a reasonable time ...
(2) If a constitutional complaint ... under paragraph 1 of this section is upheld, the Constitutional Court shall set a time-limit within which the competent court must decide the case on the merits...
(3) In a decision issued under paragraph 2 of this section, the Constitutional Court shall assess appropriate compensation for the applicant for the violation of his or her constitutional rights ... The compensation shall be paid out of the State budget within three months from the date a request for payment is lodged.”
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1