ITEMID: 001-61611
LANGUAGEISOCODE: ENG
RESPONDENT: FIN
BRANCH: CHAMBER
DATE: 2004
DOCNAME: CASE OF LAUKKANEN AND MANNINEN v. FINLAND
IMPORTANCE: 3
CONCLUSION: No violation of Art. 6-1+6-3-d
JUDGES: Nicolas Bratza
TEXT: 8. The applicants were born in 1953 and 1955 respectively and live in Riihimäki and Lahti, respectively.
9. The applicants were charged before the District Court (käräjäoikeus, tingsrätt) of Lahti; the first applicant with unauthorised use of a motor vehicle and driving without a licence and the second applicant with unauthorised use of a motor vehicle, among other offences. The applicants were represented before the District Court by legal counsel.
10. At the hearing before the District Court, on 10 September 1997, the public prosecutor called an eyewitness, N., a police officer. He had recognised the applicants and had seen them enter a car that was later reported stolen. When the witness gave evidence it appeared that there might have been other police officers in the area. The witness refused to answer some questions about his whereabouts when observing the applicants and also declined to confirm whether there had been other officers in the area, since he had been assigned to another operation not related to the applicants’ actions. The witness testified that he had recognised the applicants since he had met them before during pre-trial investigations. He had seen the first applicant enter the car by opening the door from the driver’s side. The second applicant had arrived a little later and had entered the car, and the car had left. The witness had seen its registration plate and remembered that it had contained the same digit three times.
11. The applicants denied the charges against them, explaining they did not know anything about the incident they were accused of. They also stated to the District Court that they wished to be informed of the identity of the police officers witness N. had mentioned in order to be able to call them as witnesses.
12. The District Court convicted the applicants on 10 September 1997 of unauthorised use of a motor vehicle, among other offences, and sentenced the first applicant to sixty days’ and the second applicant to six months’ imprisonment. In so far as the judgment concerned the offences referred to above, the court based itself on the testimony of the eyewitness. There was no other evidence.
13. The applicants appealed to the Court of Appeal (hovioikeus, hovrätt) of Kouvola, arguing that they should not have been convicted on the basis of the testimony of one eyewitness, since it would have been possible to hear the police officers who had been in the area at the same time. The applicants demanded a chance to hear those police officers as witnesses, requesting an oral hearing to be held before the Court of Appeal or that the case be referred back to the District Court for a re-hearing. They stressed that the names of those police officers had not been known until the public prosecutor gave his answer to the applicants’ appeal to the Court of Appeal. After the hearing at the District Court the public prosecutor had established that the two police officers had been in the area but had not observed the incident.
14. The public prosecutor submitted his observations on the applicants’ appeal to the Court of Appeal on 16 January 1998. In his observations he revealed the identity of the proposed witnesses in question. He objected to the hearing of those witnesses and to the applicants’ request to refer the case back to the District Court. He stated that he had, on 15 January 1998, discussed the case with both officers who had told him that they had seen the applicants in the area but had not made any observations concerning the unauthorised use of the vehicle. The public prosecutor stated that the applicants had been able to question witness N., whereas the two other officers could not be considered as witnesses who would give evidence on the applicants’ behalf within the meaning of Article 6 § 3 (d) of the Convention.
15. The applicants were provided with an opportunity to submit written comments on the prosecutor’s observations. The first applicant asserted, inter alia, that he must be afforded a right to obtain answers from N. to the questions he had put to him, and a right to hear the above-mentioned two police officers as witnesses. The second applicant argued that the public prosecutor’s statement about his conversations with the police officers in question was not comparable to their being heard as witnesses before a court. He noted that the applicants could have had other questions put to them than those put by the prosecutor.
16. On 29 September 1998 the Court of Appeal upheld the District Court’s judgment, rejecting the applicants’ request for an oral hearing and the request to refer the case back to the District Court. It found, in accordance with the Code of Judicial Procedure Act (Chapter 25, section 14, subsection 3), that the applicants had failed to state what they intended to prove by the witness evidence proposed. It also recalled, according to the same Act (Chapter 17, section 7), that a court must not allow irrelevant evidence to be presented. The Court of Appeal also rejected the request to hear N. again as, in its view, additional questions would not bring any further clarification to the case.
17. On 1 February 1999, the Supreme Court refused the applicants leave to appeal.
18. According to Chapter 25, Section 14(3), of the Code of Judicial Procedure (oikeudenkäymiskaari, rättegångsbalken) as in force at the relevant time, in his appeal to a Court of Appeal an appellant must identify the evidence to be relied on and the facts to be proved by that evidence. According to Chapter 17, Section 7, of that same Act, a court must not allow irrelevant evidence to be presented.
19. According to Chapter 17, Section 8, of the Code of Judicial Procedure, the parties must obtain the necessary evidence. A court may also, when considered necessary, decide to obtain evidence on its own initiative.
20. According to Section 44 of the Police Act (poliisilaki, polislagen), a member of the police force, when heard as a witness or otherwise, is not under an obligation to disclose “tactical or technical matters” which are covered by secrecy.
21. According to the reservation made by Finland in accordance with Article 64 of the Convention, as in force at the relevant time, Finland could not guarantee a right to an oral hearing in so far as the Finnish laws at the time of the events at issue did not provide such a right. This applied, inter alia, to proceedings before the Courts of Appeal in accordance with Chapter 26 Section 7 of the Code of Judicial Procedure.
NON_VIOLATED_ARTICLES: 6
NON_VIOLATED_PARAGRAPHS: 6-1
6-3
NON_VIOLATED_BULLETPOINTS: 6-3-d


ITEMID: 001-98664
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: CHAMBER
DATE: 2010
DOCNAME: CASE OF BARAN AND HUN v. TURKEY
IMPORTANCE: 3
CONCLUSION: Remainder inadmissible;Violation of Art. 3 (substantive aspect);Violation of Art. 3 (procedural aspect);Violation of Art. 6-1 and 6-3-c;Pecuniary damage - claim dismissed;Non-pecuniary damage - award
JUDGES: Françoise Tulkens;Ireneu Cabral Barreto;Kristina Pardalos;Nona Tsotsoria
TEXT: 4. The applicants were born in 1973 and 1965 respectively. At the time of lodging the application, they were in Bayrampaşa and Edirne prisons respectively.
5. On 21 July 1995 a hand grenade was thrown at a police service vehicle in the Gaziosmanpaşa district of Istanbul. Around fifteen police officers were injured. An illegal armed organisation, namely the TDP (the Turkish Revolutionary Party), took responsibility for the incident. Following this incident the police carried out an operation against members of the TDP.
6. On 4 and 5 August 1995 respectively, the applicants were arrested and taken into custody on suspicion of their involvement in the TDP. They remained in police custody until 17 August 1995.
7. On 11 and 13 August 1995 respectively, the second and first applicants were questioned by police officers at the Anti-Terrorist Branch of the Istanbul Security Headquarters, where they gave a detailed signed account of the activities in which they had taken part within the TDP. On 14 August 1995 the second applicant was questioned again. On that date the first applicant took part in a reconstruction of events concerning the bombing of the police vehicle. On various dates the applicants also took part in identification procedures via photographs.
8. In the application form the applicants complained that they had been subjected to torture while they were being held in police custody. In this connection, they maintained that they were put in a dirty and unventilated cell, deprived of sleep, food and water, blindfolded, sworn at and threatened, made to listen to loud music, beaten, stripped, hosed with water from a high-pressure hose, made to stand in front of a fan and suspended. The first applicant further claimed to have been subjected to sexual harassment, stripped and suspended, and that her hair and fingers had been pulled and a weight put on her feet.
9. On 17 August 1995 the applicant was examined by a doctor at the Forensic Medicine Institute at the State Security Court, who noted that she had a bleeding nose, pain in the groin, two 1-cm grazes on her right arm and a circular swelling on the right wrist, weakness and numbness on both arms, pain in two of the fingers of the right hand and a 2 x 1 cm graze on the right knee. The doctor further mentioned bleeding due to a gynaecological trauma which had occurred approximately fifteen days previously. However, he stated that the applicant had refused a gynaecological examination.
10. On 18 August 1995 the applicant was examined by the prison doctor, who noted, inter alia, that she had widespread back and waist pain, together with a loss of power and numbness in both arms. The doctor further found a number of bruised and swollen areas of various sizes on the applicant's body, notably under her armpits, right arm and wrist, left arm, knees, legs and ankles. Finally, he mentioned that the applicant had pain in her left ovary and bladder region.
11. On 30 October 1995 the applicant was examined by doctors at the Third Section of Expertise of the Forensic Medicine Institute. The doctors also checked the applicant's previous medical reports and the results of an EGM test. They concluded that the applicant was suffering from bilateral brachial plexitis (damage to nerves).
12. According to a number of reports, consultation notes, a medical scan and the analysis contained in the case file, the applicant, who has been diagnosed with irreversible brachial plexitis in her right arm and reversible brachial plexitis in her left arm, was treated mainly with physical therapy for over one and a half years. As a result, her left arm improved. However, her right arm is irreversibly damaged.
13. On 19 October 1998 the applicant was examined by the doctors at the Third Section of Expertise of the Forensic Medicine Institute. On 18 December 1998, upon the request of the Istanbul Assize Court, the Third Section of Expertise (Ihtisas Kurulu) submitted their opinion, in which they considered that the applicant's left arm was near to normal but that her right arm was paralysed and that this constituted a permanent invalidity (uzuv zaafı).
14. On 17 August 1995 the applicant was examined by a doctor at the Forensic Medicine Institute at the State Security Court, who noted that he had pain and difficulty in moving his neck, pins and needles in the right hand and pain under his left arm.
15. On 2 July 1998 the applicant was examined by a doctor at the Medical Faculty of Istanbul University, who diagnosed him as suffering from cervical herniated disc syndrome. The applicant was treated with a neck brace and medication. However, the doctor noted that, since this condition was permanent, the applicant had to be monitored and treated continuously.
16. On 17 August 1995 the applicants were brought before a public prosecutor and a judge at the Istanbul State Security Court, where they refused to give any statements as a protest, on the ground that they had been subjected to torture while in police custody.
17. On 21 September 1995 the public prosecutor at the Istanbul State Security Court filed a bill of indictment against the applicants and other suspects, charging them with undermining the constitutional order of the State under Article 146 of the Criminal Code. In particular, the first applicant was accused of having participated in the bombing of the police vehicle on 21 July 1995.
18. On an unspecified date the criminal proceedings commenced before the Istanbul State Security Court. The applicants were both represented by the same lawyer, Mrs G. Tuncer. At a hearing held on 19 December 1995 the applicants' lawyer maintained that her clients had been subjected to torture and asked the court to request the authorities to initiate a criminal investigation (suç duyurusu). The Istanbul State Security Court dismissed this request, stating that the applicants could lodge their complaints themselves with the public prosecutor's office and that there was no need for the court to do so.
19. In the course of the trial the court heard the accused, some of the police officers who had been injured during the bombing of the police vehicle and the police officers who had taken part in various measures during the applicants' detention. During the hearing of one such police officer, the first applicant and another co-accused asked the court not to hear him, alleging that this man was a torturer and had tortured them. The court further examined the video recordings of the reconstruction of events concerning the bombing of the police vehicle. On 19 December 1995, 22 May 1997 and 9 November 1999, the second applicant submitted his written statements to the court. Only in the first one did he claim that he had retracted his police statements because he had signed them under duress and torture without having had the opportunity to read them. In later submissions the applicant principally maintained that he was a revolutionary, but that he had no relationship with any illegal organisation. In particular, he submitted that the guns and bombs found at his house belonged to one of the accused, who had requested the use of a cupboard for his personal belongings, had brought them in a bag and had asked him to guard them. The applicant had had no prior knowledge of their existence.
20. On 19 December 1995, 1 September 1998 and 4 February 2000, the first applicant submitted her written statements to the court. Except for the second one in which she criticised the State Security Court system, the applicant submitted a detailed account of the ill-treatment she had been subjected to in police custody and denied involvement in any illegal organisation. She submitted that the materials found at the house where she was staying with the second applicant belonged to one of the coaccused and that she did not know what they were. Likewise she gave explanations regarding her fake identity card and marriage certificate.
21. On 22 May 1997 the Istanbul State Security Court found the applicants guilty of the accusations against them and convicted the first applicant under Article 146 of the Criminal Code and the second applicant under Article 168 of the Criminal Code.
22. On 27 March 1998 the Court of Cassation quashed the judgment of the first-instance court on the ground that the final hearing had been held in the absence of the first applicant despite the fact that she had had a valid medical report excusing her. The hearing had thus violated her defence rights. In view of the factual and legal relationship between the accused the court held that the first-instance court's judgment had to be quashed in respect of all the defendants.
23. On an unspecified date the case was remitted to the firstinstance court whereupon the latter held regular hearings. It appears that after the capture of Abdullah Öcalan the applicants and some of the accused informed the court that they were on an unlimited hunger strike in protest. Moreover, in a number of hearings held after 1 September 1998, the applicants refused to appear before the court on the ground that the European Court of Human Rights had found that State Security Courts lacked independence and impartiality. On 27 October 1998 the applicants' representative informed the court that she would no longer be attending the hearings and asked the court to discontinue the proceedings on the ground that they were not an independent and impartial tribunal, as the European Court of Human Rights had ruled.
24. In the meantime, on 21 December 2000, Law no. 4616 on Conditional Release, Deferral of Procedure and Punishments was promulgated. However, the benefits of this Law were not available to persons who had committed offences under Articles 146 and 168 of the Criminal Code. Thus, it was not applicable to the applicants' case. On 24 January 2001 the applicants unsuccessfully requested the Court of Cassation to send the case file to the Constitutional Court for an examination of the compatibility of this Law with the relevant provisions of the Constitution.
25. On 2 March 2000 the Istanbul State Security Court found the first applicant guilty of undermining the constitutional order of the State and sentenced her to life imprisonment under Article 146 of the Criminal Code. In its decision the court took into account the evidence in the case file, which included documents regarding the illegal organisation found at the applicant's house, expert reports, verbatim records regarding identification procedures, the photograph of her taken at the incident scene, the verbatim records of the reconstruction of events and the verbatim records of the video recording regarding the reconstruction of events. The court noted that there were proceedings pending before the domestic courts regarding the applicant's allegations of ill-treatment during police custody. However, it considered that it need not await their outcome since its decision to convict the applicant did not rely solely on her police statements but on material evidence.
26. The same day the court found the second applicant guilty of membership of an illegal armed organisation under Article 168 of the Criminal Code and sentenced him to twelve years and six months' imprisonment. In so doing, it took into account the evidence in the case file, including the applicant's statements given whilst in police custody, the verbatim records of the reconstruction of the events, the statements of other suspects, documents regarding the illegal organisation and other evidence, such as guns and chemical explosive materials found at his house. In its decision the court also noted that the accused had unnecessarily prolonged the criminal proceedings after the case was remitted by the Court of Cassation, by not appearing before the court, maintaining a hunger strike, requesting extensions and obtaining medical reports excusing their participation on hearing days.
27. The applicants appealed. They maintained, in particular, that the first-instance court had failed to conduct an additional investigation, that it had refused their request for the hearing of key witnesses or the conduct of a reconstruction of events so as to dispel factual contradictions. They criticised the manner in which the domestic court had interpreted evidence. Moreover, the applicants complained that the first-instance court had based itself on evidence obtained unlawfully. In this connection, they maintained that the domestic court had relied on their police statements despite medical reports attesting to their torture. They further submitted that the other documents secured by the police during the preliminary investigation had also been obtained unlawfully. Finally, the applicants maintained that the court had erred in the qualification of the offence.
28. On 29 January 2001 the Court of Cassation held a hearing and upheld the judgment of the Istanbul State Security Court.
29. Upon the first applicant's complaint, via her legal representative Ms G. Tuncer, an investigation was instigated by the Fatih public prosecutor.
30. Between 29 January 1996 and 6 March 1996, the Fatih public prosecutor heard evidence from five police officers who had taken part in the applicant's arrest and interview. They all denied the applicant's allegations of ill-treatment.
31. On 28 March 1996 the Fatih public prosecutor heard evidence from the applicant. She gave a detailed account of the alleged ill-treatment which included beating, being left wet in the cold, sexually molested and periodically suspended. The applicant also gave brief descriptions of the alleged perpetrators.
32. On 18 June 1996 the Fatih public prosecutor sent his opinion to the Istanbul public prosecutor with a view to criminal proceedings for ill-treatment being brought against five police officers working at the Anti-Terrorist Branch of the Istanbul Security Headquarters.
33. On 26 June 1996 the Istanbul public prosecutor filed a bill of indictment against the five officers for the ill-treatment of Ms Baran. The charges were brought under Article 243 of the Criminal Code.
34. On 15 October 1996 the criminal proceedings against the accused police officers commenced before the Istanbul Assize Court.
35. In the hearings held on 8 May and 11 October 1997, the court heard evidence from the applicant, who gave details regarding the ill-treatment and identified the accused police officers as those responsible, except for one about whom she was not sure. On the latter date, the court also heard the testimony of Mr K.Y., another detainee and witness on behalf of the applicant.
36. On 6 May 1998 the court heard testimony of Ms A.E., another detainee and witness on behalf of the applicant.
37. On 12 March 2002 the Istanbul Assize Court discontinued the proceedings against the accused police officers on the ground that the prosecution of the offence, five years at the time of the events, had become time-barred. This decision was upheld by the Court of Cassation on 19 February 2004.
38. On 17 June 2003 the President of the Republic, referring to a Forensic Medicine Institute's report dated 21 April 2003, remitted the remainder of Ms Baran's sentence on grounds of chronic illness, pursuant to Article 104 § b of the Constitution. The applicant was released from prison on 24 July 2003.
39. The relevant domestic law and practice in force at the material time, as well as recent developments, can be found in the following judgments: Kolu v. Turkey (no. 35811/97, § 44, 2 August 2005), Salduz v. Turkey ([GC], no. 36391/02, §§ 27-31, 27 November 2008), Batı and Others v. Turkey (nos. 33097/96 and 57834/00, ECHR 2004-IV), and Zeynep Özcan v. Turkey (no. 45906/99, 20 February 2007).
VIOLATED_ARTICLES: 3
6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-87968
LANGUAGEISOCODE: ENG
RESPONDENT: POL
BRANCH: CHAMBER
DATE: 2008
DOCNAME: CASE OF OCHLIK v. POLAND
IMPORTANCE: 4
CONCLUSION: Violation of Article 5 - Right to liberty and security;Violation of Article 8 - Right to respect for private and family life
JUDGES: David Thór Björgvinsson;Giovanni Bonello;Ján Šikuta;Lech Garlicki;Ledi Bianku;Mihai Poalelungi
TEXT: 5. The applicant was born in 1970 and lives in Wrocław.
6. On 19 July 2001 the applicant was arrested by the police on suspicion of having committed several burglaries and robberies together with several accomplices.
7. On 20 July 2001 the Jawor District Court (Sąd Rejonowy) decided to place the applicant in pre-trial detention on the basis of a reasonable suspicion that he had committed the offences. The court also considered that, given the likely severity of the penalty, it was probable that the applicant would interfere with the course of proceedings and he might go into hiding. Moreover, the court considered that there was a risk that the applicant would bring pressure to bear on witnesses or his accomplices.
8. On 4 October and 20 December 2001 the Wrocław Regional Court (Sąd Okręgowy) extended the applicant’s detention, finding that the original reasons for it were still valid. The court referred also to the risk of his absconding, considering that the applicant rarely stayed at his official place of residence and “had been avoiding contact with the police officers, who were looking for him”.
9. On 18 June 2002 the Wrocław Court of Appeal (Sąd Apelacyjny), upon an application from the Wrocław Regional Prosecutor (Prokurator Okręgowy), further extended the applicant’s pretrial detention.
10. Subsequently, the applicant and ten co-accused were indicted before the Wrocław Regional Court (Sąd Okręgowy).
11. On 19 September 2002 the Wroclaw Regional Court extended the applicant’s pre-trial detention. In a very brief reasoning the court stated that there was a reasonable suspicion against the applicant and that, given the likely heavy sentence and the fact that the applicant had acted in a criminal group, only his detention could secure the proper course of the proceedings.
12. Subsequently, as the length of the applicant’s detention had reached the statutory time-limit of two years laid down in Article 263 § 3 of the Code of Criminal Procedure (Kodeks postępowania karnego), the Regional Court applied to the Wrocław Court of Appeal for the applicant’s detention to be extended beyond that term.
13. On 10 June, 18 September and 16 December 2003 the Wrocław Court of Appeal extended the applicant’s detention and that of his three coaccused. The court relied on the existence of a reasonable suspicion that the applicant had committed the offences with which he had been charged. Moreover, the court referred to the nature of the offences and the risk that, given the likely severity of the penalty, the applicant would obstruct the proceedings or go into hiding. Lastly, the Court of Appeal examined the course of the proceedings before the trial court and found that their length had not been excessive, bearing in mind the number of accused involved and complexity of the case. It also stated that despite the fact that hearings had been held several times per week, over 130 witnesses still had to be heard.
14. On 25 February and 18 June 2004 the Wroclaw Court of Appeal further extended the applicant’s detention in two decisions. Both decisions repeated the same grounds for the applicant’s detention: the reasonable suspicion against him, the severity of the likely sentence and the need to secure the proper conduct of the proceedings. The Court of Appeal stressed that it expected the trial court to finish the proceedings soon, in particular given the length of time the accused had spent in detention so far. In the second of the above-mentioned decisions the court established that, although the applicant’
15. The applicant’s numerous requests for release during his pretrial detention were to no avail.
16. On 13 August 2004 the Wroclaw Regional Court convicted the applicant and sentenced him to seven years’ imprisonment. The applicant appealed against the judgment.
17. On 11 May 2005 the Wroclaw Court of Appeal dismissed the applicant’s appeal. The court upheld the judgment in respect of nine accused and quashed it as regards two others.
18. On 16 February 2004 the applicant sent his first letter to the Court indicating his intention to lodge an application. The top right corner of the letter bears a red stamp “censored” (cenzurowano). The envelope in which the letter was delivered bears signs of opening after having been sealed: its left side has been cut open and then resealed with sellotape. The envelope also bears the stamp of the Wrocław Detention Centre and a handwritten note: W[rocła]W R[egional] C[ourt].
19. On 10 January 2005 the applicant sent a letter to the Court. The envelope in which the letter was delivered bears a stamp “Wroclaw Detention Centre 11 January 2005” and a blue stamp “Censored” (ocenzurowano).
20. The relevant domestic law and practice concerning the imposition of pre-trial detention (aresztowanie tymczasowe), the grounds for its extension, release from detention and rules governing other “preventive measures” (środki zapobiegawcze) are set out in the Court’s judgments in the cases of Gołek v. Poland, no. 31330/02, §§ 27-33, 25 April 2006 and Celejewski v. Poland, no. 17584/04, §§ 22-23, 4 August 2006.
21. The relevant domestic law concerning the censorship of prisoners’ correspondence is set out in the Court’s judgment in the case of Michta v. Poland, no. 13425/02, §§ 33-39, 4 May 2006.
VIOLATED_ARTICLES: 5
8


ITEMID: 001-84647
LANGUAGEISOCODE: ENG
RESPONDENT: CZE
BRANCH: ADMISSIBILITY
DATE: 2008
DOCNAME: KRUGOVA v. THE CZECH REPUBLIC
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Javier Borrego Borrego;Karel Jungwiert;Mark Villiger;Peer Lorenzen;Rait Maruste;Renate Jaeger;Snejana Botoucharova
TEXT: The applicant, Mrs Květa Krugová, is a Czech national who was born in 1938 and lives in Mladé Buky. She was represented before the Court by Mr K. Krug, her husband. The Czech Government (“the Government”) were represented by their Agent, Mr V.A. Schorm, from the Ministry of Justice.
The facts of the case, as submitted by the parties, may be summarised as follows.
On 9 June 1994 the applicant received dental treatment during which she suffered a cerebral haemorrhage. According to her, the dentist did not provide her with the necessary medical help.
On an unspecified date the applicant lodged a complaint against the dentist with the Ministry of Health. On 17 June 1994 the Trutnov Regional Chamber of Stomatology (oblastní stomatologická komora) filed a criminal complaint against the dentist.
On 31 October 1995 the applicant joined the proceedings as a civil party, when her husband was heard by police officers and expressed, on behalf of his wife, a wish to join the proceedings.
On 22 April 1996 the dentist was formally indicted for failure to provide medical assistance. On 23 May 1996 his lawyer informed the Náchod District Court (okresní soud) about a possible friendly settlement of the case. On 17 June 1996 the District Court conditionally stayed the criminal proceedings for eighteen months, ordering the dentist to pay CZK 150,000 (EUR 5,472) to the applicant. According to the Government, the dentist paid the sum requested.
In a judgment of 21 March 2002 the District Court acquitted the dentist and instructed the applicant that she may claim damages in civil proceedings.
On 8 August 2002 the Hradec Králové Regional Court (krajský soud) dismissed the appeals of the prosecutor and the applicant. This decision was apparently the last domestic decision taken in these proceedings.
On 30 May 1997 the applicant filed with the District Court an action in which she claimed compensation from the dentist for alleged malpractice.
On 22 April 2005 the District Court dismissed the applicant’s action. According to the Government, the proceedings have not yet been meritoriously terminated.
The relevant domestic law and practice concerning remedies for the excessive length of judicial proceedings are stated in the Court’s decision in the case of Vokurka v. Czech Republic, no. 40552/02 (dec.), §§ 11-24, 16 October 2007).


ITEMID: 001-60450
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: CHAMBER
DATE: 2002
DOCNAME: CASE OF McVICAR v. THE UNITED KINGDOM
IMPORTANCE: 1
CONCLUSION: No violation of Art. 6-1
JUDGES: Christos Rozakis;Nicolas Bratza
TEXT: 8. The applicant is a British national, born in 1940 and living in London.
9. The applicant, who has a sociology degree, is a journalist and broadcaster. He has written for many national newspapers and magazines and has made a number of appearances on radio and television.
In September 1995 an article was published in Spiked magazine in which the applicant suggested that the athlete Linford Christie used banned performance-enhancing drugs. The article stated, inter alia:
“On the basis of circumstantial evidence many believe, but cannot prove that Christie has been taking performance-enhancing drugs ... If he has been outwitting the testers for years, it is extremely unlikely that Christie will be caught in the few months left before his likely retirement from competitive sprinting. Nevertheless, there is no bloody hypodermic needle, and no direct evidence that points the finger at Christie. ...
Certainly the ten days between injuring himself in Gothenburg and winning in Zurich would have allowed Christie to recover from a slight hamstring injury and, without fear of a random test, put in seven days intensive training, boosted by banned drugs, and perhaps human growth hormone, that would give him the explosiveness and power to run 10.03 seconds into a headwind. We don't know. ...
Christie exhibits a number of other possible effects of these performance-enhancing drugs. His remarkable physique, in regard to both its bulk and definition, is consistent with the use of anabolic steroids. ... Similar considerations apply to speed (sic) with which he put on weight. In the early part of his career, he was a beanpole sprinter but between 1986 and 1988 he put on 13 kg in bodyweight to come in at the 70 kg powerhouse that he has stayed at since. Steroids have other side-effects ... Three of the commonest are grandiosity, fixated delusions and a persecution complex. Linford genuinely seems to think that running a hundred metres faster than anyone else is rather more than an exciting, even unique spectacle, but some kind of monumental contribution to human culture. ...
Human growth hormone ... costs £1,200 for a week's supply. Miboerone is a steroid that is even more expensive ... Christie is rich. He also shows most of the physical, behavioural and psychological features of an athlete that regularly uses steroids. This conclusion is reinforced generally by the performances that he continues to turn in at an age when psychologically he should be in decline and specifically by his uncanny quick recovery from his injury at Gothenburg. ...
Aside from all the non-testing criteria that provide circumstantial evidence to suggest that Christie may be a regular user, the final clinching one is Christie's own character and attitude to competition. He is a win-at-all-cost athlete and his determination to succeed may lead people to believe that he would not deprive himself of an advantage enjoyed by some of his rivals, thereby denying himself his only chance of fame and fortune.”
10. In December 1995 Mr Christie commenced an action in the High Court for defamation against the applicant, the magazine's editor and the publishing company. The editor and publishing company were represented by a solicitor-advocate specialising in defamation and media litigation, Mr David Price. Mr Price had advised the publishing company prior to publication about the legality of the article in question. A separate action was launched by Mr Christie against the printers and various distributors of the magazine.
11. During the greater part of the proceedings the applicant represented himself because he could not afford to pay legal fees and because, under Schedule 2, Part II, of the Legal Aid Act 1988, legal aid was not available for defamation actions. His defence was that the allegations made in the article were true in substance and in fact.
In a newspaper article among the papers submitted by the applicant to the Court, it was reported that the applicant had, in June 1996, successfully defended himself in criminal proceedings concerning a charge of assaulting a neighbour.
12. On 28 June 1996 there was a directions hearing at which Mr Price (on behalf of the editor and publishing company), the applicant and counsel for Mr Christie made representations. An order was made requiring, inter alia, that the plaintiff and the defendants should exchange statements of witnesses of fact by 2 October 1996, and could each call four expert witnesses (a physiologist, a pharmacologist, a psychologist and an athletics coach), but only if the substance of each expert's evidence was disclosed in a report to be exchanged by 30 October 1996. These time-limits were subsequently extended by consent to some time in December 1996 and April 1997 respectively.
13. The applicant wished to rely on the evidence of an athlete, Geoffrey Walusimbi, who had allegedly told the applicant that Mr Christie had introduced him to performance-enhancing drugs. In respect of Mr Walusimbi the applicant served the following document dated 19 December 1996, which purported to be a statement of the nature of the evidence intended to be adduced under the Rules of the Supreme Court (RSC), Order 38, Rule 2A(5) (see below):
“The second defendant has issued a subpoena on Mr Geoffrey Walusimbi ... He intends to adduce evidence from him concerning:
(a) his masked appearance on the Panorama [television] programme 'Drug Olympics' ... in which he admitted taking performance-enhancing drugs;
(b) his training relationship with Linford Christie;
(c) his trips abroad with Linford Christie to various Sports Clinics, in particular one in Florida, 'First Medical';
(d) his knowledge of Linford Christie's own use of performance-enhancing drugs.”
14. One of the expert witnesses whom the applicant wished to call was an osteopath called Terry Moule. Mr Moule had been involved in sports medicine for over twenty years and had treated Mr Christie. He allegedly told the applicant that as a result of his experience he was able to tell by the look and feel of an athlete's body whether that athlete had taken performance-enhancing drugs, and that he was certain that Mr Christie had been a regular user. However, because of his previous association with Mr Christie, Mr Moule did not wish to give a statement. The applicant did not, therefore, serve any form of report in respect of Mr Moule's expert evidence as required by the order for directions. Instead, in April 1997, he served the following document, which he mistakenly believed to be acceptable under the RSC, Order 38, Rule 2A(5) in place of an expert's report:
“Terry Moule is a professional physiotherapist and went to the 1992 Barcelona Olympic Games as team physiotherapist for the athletics squad. He is conversant with the effects of steroids on the body and talks about 'steroid feel' and the particular look of a body that has been built up using anabolic-androgenic steroids. He is an expert on how the body responds to these drugs when supplemented by power lifting. He understands the effects of ageing on the performance of 'fast-twitch' muscle. He has massaged the Plaintiff in the early part of his career.
A subpoena has been taken out for Terry Moule.”
15. The trial was listed to start on 15 June 1998. By this time, the applicant was the sole defendant in the proceedings because the editor had been killed in a traffic accident in September 1996 and the publishing company had become insolvent. On 30 April 1998 the applicant instructed Mr Price, who had had no involvement in the case since the death of the editor, to represent him as his solicitor-advocate. Mr Price had previously given advice to the editor and the publishing company both prior to, and following, publication of the article and had drafted a defence to Mr Christie's action on the limited information then available.
16. Mr Christie applied to prevent Mr Price from acting on the grounds that he had previously been responsible for the decision to publish the article concerned, having given legal advice to the editor, and that the legality of that decision was itself now at issue. As a result, Mr Christie argued that Mr Price had a conflict of interest. Mr Christie's application was granted by the trial judge, Mr Justice Popplewell, in the High Court on 8 June 1998, but his decision was reversed by the Court of Appeal three days later. The applicant was represented by Mr Price at both hearings.
17. About a week before the trial Mr Christie's solicitors indicated that they intended to make an application to the trial judge seeking to prevent the applicant from calling a number of witnesses, including Mr Moule and Mr Walusimbi. Mr Price had, since being instructed by the applicant, made efforts to secure full statements from those witnesses. Following the indication received from Mr Christie's solicitors, Mr Moule agreed to make a signed statement, in which he described, inter alia, the effects of steroids and the high level of usage amongst athletes, and stated that “it would be almost impossible to succeed at the highest levels in the 100 metre [event] without the use of banned performance-enhancing drugs”. This statement was served on Mr Christie's solicitors at 3 p.m. on Friday 12 June 1998, one working hour before the trial was due to commence.
18. On 15 and 16 June 1998 Mr Justice Popplewell heard preliminary submissions from Mr Price on behalf of the applicant and counsel for Mr Christie as to the admissibility of the evidence of the witnesses concerned. On 15 June 1998, in relation to the admissibility of the expert evidence of Mr Moule and a Professor Beckett on behalf of the applicant, he ruled as follows:
“The rules [on disclosure of evidence] are designed to avoid an ambush. ... They are not to beat inefficient litigants. There is provision for the Judge in exercise of his duty to give leave for evidence to be called. Mr Price at the forefront of his argument says the obligation was on the Plaintiff to ensure that the Plaintiff was not taken by surprise. That is a misunderstanding of the rules of the Court. The rules provide that if the party wants to call an expert he should provide the substance of the expert's report. Mr Price contends that Mr Moule's expert statement leads to one conclusion; having observed the Plaintiff and massaged his body, everybody should understand what Mr Moule was going to say. I think there is another way of reading the evidence. The Plaintiff might have concluded that it was useless evidence. This is compounded by the fact that Mr Moule's statement deals with the ability to observe the effect of anabolic steroids but nowhere does he say that about the Plaintiff. The nearest he gets is at paragraph 8 where he says that at least 70% of athletes use steroids systematically. That statement adds nothing to the defence as pleaded.
There is no obligation on a party to draw the attention of the other party to the defect in its witness statements. At trial the admissibility of statements is often dealt with. There is criticism of the Plaintiff on this point but it is false. The obligation is on the party to make sure that it complies with Orders. It has not been suggested that the Defendant was unable to obtain written statements. The fact that he has statements suggests quite the contrary. The Defendant was a litigant in person but Mr Price acted for a period of time and Mr McVicar is not inexperienced. He has very much in mind what is involved. It may be said that Mr Price did not have full conduct but he has had since 30 April 1998. A review would have revealed that the statements did not comply with the Orders made. ... That I have discretion is clear. The exercise of that discretion is to ensure a fair disposal. ...”
The judge continued that he had to balance the prejudice that would be suffered by the applicant if the evidence were excluded against that which would be suffered by Mr Christie if Mr Moule's testimony were admitted. It would be unfair to allow Mr Moule to give evidence at trial without giving Mr Christie time to call counter-evidence, but to order an adjournment for this purpose would itself be prejudicial to Mr Christie because the applicant did not have sufficient means to provide an indemnity for the extra costs which would be incurred as a result. The judge concluded: “If there is more prejudice to the Defendant than the Plaintiff he is the person who is responsible. The fault lies with him. I will not allow Mr Moule's evidence.” He also refused the applicant leave to adduce that part of Professor Beckett's evidence which dealt with the efficacy of drug testing and the ease with which the ban on drug taking could be evaded on the basis that these issues were not pleaded by the applicant and an amendment to the pleading should not be allowed.
19. On 16 June 1998 the judge refused to grant the applicant's request for leave to admit Mr Walusimbi's evidence, on the ground that it would be unfair to Mr Christie to be faced with wide allegations about his drug taking, the details of which he would not know until Mr Walusimbi took the stand.
20. The applicant appealed against these rulings to the Court of Appeal. He was again represented by Mr Price at the appeal hearing, which took place on 18 June 1998. Lord Justice May, delivering the judgment of the court, commented, as had the trial judge, that the interests of the applicant were “identical” to those of his previous co-defendants, the editor and the publishing company. He went on:
“I deal with Mr Moule's statement first. The gist statement served in April 1997 relating to Mr Moule contained very little detail of the substance of the evidence that he might give. It refers only to Mr Moule's experience and qualifications as a physiotherapist and then says baldly that he massaged the plaintiff during the early part of his career. The witness statement now served gives a more detailed account of his experience and names some of the sportspeople, including the plaintiff, whom he has treated. It refers to the benefit and effect of anabolic steroids for athletes, particularly in the 100 metres event. It states that in Mr Moule's experience a large proportion of professional athletes use steroids. It says that from his experience Mr Moule is generally able to tell by looking whether an athlete is taking steroids and that he can also tell this if he manipulates their muscles. ...
Mr Price accepts that the gist statement did not put forward any affirmative version of what Mr Moule might say, but he submits that it could be inferred that Mr Moule would give the evidence that the look and feel of the plaintiff's body indicates use of banned drugs. I do not accept this submission. This gist statement is not even inferentially a statement of the evidence intended to be adduced such as is referred to in Order 38, Rule 2A(5). ...
Matters which Mr Price would have us infer are intended to be said by Mr Moule are neither pleaded nor the subject of any previously served witness statement or expert's report and I see no reason why the plaintiff should have anticipated the sudden arrival of this material at the very last moment.
Mr Price says that there is a strong public interest in allowing all relevant and probative evidence to be adduced lest there may be a verdict which is contrary to the truth. ... The judge took this important submission into account and so do I. The fact is that there are competing public interests, one of which is that parties to litigation should not turn up at the very last moment with unheralded evidence which puts another party at a disadvantage, and another of which is that the general administration of justice demands, for reasons which have been articulated frequently by this court, that fixed trial dates should not be abandoned at the last moment other than in quite exceptional circumstances. ...
It seems to me that the case for exercising the judge's discretion in relation to Mr Moule as he did is clear and overwhelming. Mr Moule's evidence was not heralded in the gist statement. The statement was served at the latest possible moment before the start of the trial. Without an adjournment of the trial (which the judge rightly regarded as out of the question and which would in any event have prejudiced the plaintiff) the plaintiff would be prejudiced by not being able properly to deal with the evidence. Any prejudice to the defendant was his own fault.
The judge had to make a balancing judgment, which in my view he did upon proper and unassailable principles. Accordingly, I would not disturb the judge's finding in relation to Mr Moule's evidence.”
In relation to Mr Walusimbi's evidence, he said:
“A gist statement was served in relation to Mr Walusimbi and referred to what he had said in a Panorama programme. A transcript of the programme was provided on discovery. The [applicant] now wants to call Mr Walusimbi to say that the use of performance-enhancing drugs by athletes is widespread and that there are means of evading tests. Before the judge, he wanted to call Mr Walusimbi to give first-hand evidence that the plaintiff had taken drugs. This was neither pleaded nor included in the Panorama material. The judge rightly excluded it and there is no application for leave to appeal against that part of the decision. The judge held that the general evidence added little or nothing to the issue of widespread drug taking. I agree, not least since I would permit Professor Beckett's evidence to be adduced and this deals with the same topic. Further general evidence about widespread drug use by athletes does not go to establish that the plaintiff has taken drugs or that he is reasonably suspected of having done so. This again was very late evidence tendered in breach of court orders and the rules, and I consider that the judge exercised his discretion correctly to exclude it.”
21. The main trial commenced on the same day, 18 June 1998. The applicant represented himself as his funds were exhausted. On 3 July 1998 the jury found, by a majority of ten to two, that the article complained of bore the meaning that
“Mr Christie is a cheat who regularly used banned performance-enhancing drugs to improve his success in athletic competition.”
It found also that the applicant had not proved that the article as so interpreted was substantially true.
Although Mr Christie did not seek damages, the applicant was ordered to pay the costs of the action and was made subject to an injunction
“... restraining the [applicant] whether by himself, his servants, agents or otherwise howsoever from further publishing or causing the publication of the allegation (express or by implication) that the plaintiff is a cheat who has regularly used performance-enhancing drugs to improve his success in athletic competition or any words to the same or similar effect ...”
22. Following the verdict, the distributors and printers involved in the separate action reached a settlement with Mr Christie which required the payment of damages to him (see paragraph 10 above).
23. Under English law the object of a libel action is to vindicate the plaintiff's reputation and to make reparation for the injury done by the wrongful publication of defamatory statements concerning him or her. A defence of justification applies where the defamatory statement is substantially true. The burden is on the defendant to prove the truth of the statement on the balance of probabilities.
24. Throughout the relevant time, the allocation of civil legal aid in the United Kingdom was governed by the Legal Aid Act 1988. Under Schedule 2, Part II, paragraph 1, of that Act, “proceedings wholly or partly in respect of defamation” were excepted from the scope of the civil legal-aid scheme.
25. At the relevant time, civil procedure before the High Court was governed by the Rules of the Supreme Court (RSC). Under RSC Order 38, Rule 2A:
“(1) The powers of the Court under this rule shall be exercised for the purpose of disposing fairly and expeditiously of the cause or matter before it, and saving costs ...
(2) At the summons for directions in an action commenced by writ the Court shall direct every party to serve on the other parties, within fourteen weeks (or such other period as the Court may specify) of the hearing of the summons and on such terms as the Court may specify, written statements of the oral evidence which the party intends to adduce on any issues of fact to be decided at the trial. ...
...
(4) Statements served under this rule shall –
(a) be dated and, except for good reason (which should be specified by letter accompanying the statement), be signed by the intended witness and shall include a statement by him that the contents are true to the best of his knowledge and belief;
...
(5) Where a party is unable to obtain a written statement from an intended witness in accordance with paragraph (4)(a), the Court may direct the party wishing to adduce that witness's evidence to provide the other party with the name of the witness and (unless the Court otherwise orders) a statement of the nature of the evidence intended to be adduced. ...
...
(7) Subject to paragraph (9), where the party serving the statement does call such a witness at the trial –
...
(b) the party may not without the consent of the other parties or the leave of the Court adduce evidence from that witness the substance of which is not included in the statement served ...
(10) Where a party fails to comply with a direction for the exchange of witness statements he shall not be entitled to adduce evidence to which the direction related without the leave of the Court. ...”
Statements served under Rule 2A(5) are commonly referred to as “gist” statements.
26. According to the RSC, Order 38, Rule 37:
“(1) ... in respect of expert oral evidence, then, unless the Court considers that there are special reasons for not doing so, it shall direct that the substance of the evidence be disclosed in the form of a written report or reports to such other parties and within such period as the court may specify.”
As in Rule 2A(10) in respect of witness statements (see above), the court may, pursuant to a general power set out at RSC, Order 3, Rule 5, grant leave to allow expert evidence to be adduced late when the order for directions has not been complied with by either party.
27. In New York Times v. Sullivan ((1964) 376 US 254), the Supreme Court of the United States ruled that a State could not, under the First and Fourteenth Amendments to the United States Constitution, award damages to a public official for defamatory falsehood relating to his official conduct unless he proved “actual malice”. This was shown where the statement concerned had been made with knowledge of its falsity or with reckless disregard as to whether it was true or false. In delivering the judgment of the court, Mr Justice Brennan commented:
“Allowance of the defence of truth, with the burden of proving it on the defendant, does not mean that only false speech will be deterred. Even courts accepting this defence as an adequate safeguard have recognised the difficulties of adducing legal proof that the alleged libel was true in all its factual particulars. ... Under such a rule, would-be critics of official conduct may be deterred from voicing their criticism, even though it is believed to be true and even though it is in fact true, because of doubt whether it can be proved in court or fear of the expense of having to do so. They tend to make only statements which 'steer far wider of the unlawful zone'.”
NON_VIOLATED_ARTICLES: 6
NON_VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-58086
LANGUAGEISOCODE: ENG
RESPONDENT: SWE
BRANCH: CHAMBER
DATE: 1997
DOCNAME: CASE OF ANNE-MARIE ANDERSSON v. SWEDEN
IMPORTANCE: 3
CONCLUSION: No violation of Art. 6-1;No violation of Art. 13
JUDGES: John Freeland;B. Walsh
TEXT: 8. The applicant, Mrs Anne-Marie Andersson was a Swedish citizen. She was born in 1943 and died in 1996 (see paragraph 6 above). She lived in Göteborg, where she worked as a taxi driver.
9. At the time of the events in question, Mrs Andersson was divorced and living with her youngest son, who was born in 1981. From May 1988 onwards, Mrs Andersson was unable to work as a result both of dental problems which caused her severe pain and anxiety about a dispute with her landlord.
10. In April 1989 she contacted a psychiatric clinic in Göteborg in order to receive a medical certificate which would enable her to claim sickness benefit from the Health Insurance Office. From 20 August 1991 the applicant was treated by the chief psychiatrist who drew her attention to the possible detrimental effect her situation might have on her son and advised her to seek support for him from the children's psychiatric clinic or the social authorities. Mrs Andersson, however, considered that her son was a normal child who was not in need of any particular help.
11. In January 1992 the psychiatrist informed Mrs Andersson that since the child's health might be at risk, she (the psychiatrist) had an obligation under Swedish law to contact the social authorities (see paragraphs 16–17 below). Accordingly, she telephoned a social-welfare officer at the Social Council (socialnämnden) and informed her of the applicant's health problems. At the request of that officer the psychiatrist submitted the following written statement on 16 January 1992:
“Anne-Marie Andersson has had a polyclinical contact with a psychiatrist at [the clinic] since 19 April 1989, from 20 August 1991 with the undersigned. The reason has been a pain condition in connection with dental problems and this has caused her being on sick-leave as from May 1988. The patient does not consider herself to be mentally ill but she has accepted the contact with us solely due to her need to be put on the sick-list.
In my opinion she has an extreme personality and her thoughts are, in conversations here, occupied by her severe pain condition and her dissatisfaction with the treatment she has received. She has once in a while had her son with her. He seemed quiet and sensitive.
The undersigned, as well as others in the medical service with whom the patient has been in contact, have worried about the possible effect of her severe pain condition on the son whom she cares for alone. I have on several occasions drawn her attention to this, inter alia in letters (please see copy), and asked her to contact [the children's psychiatric clinic] or the social authorities. As, apparently, this has not been done, I called you today and I now send a written account of the case as agreed.
As I do not find that, from a psychiatric point of view, we can do more for the patient, who does not consider herself to be mentally ill, I have referred her to the district medical officer and she will, thus, have no further contact with me.”
12. By letter the same day, the psychiatrist notified the applicant of the information imparted to the Council. The relevant part of the letter read as follows:
“As you know, I have several times asked you to seek support for your son who, naturally, cannot remain unaffected by your severe pains. As I have not been able to convince you that this is necessary, I have called [a] social-welfare officer and expressed my concern. Unfortunately, I find myself obliged under the law to take this action in an attempt to reduce future problems for the boy (and thereby also for you).”
13. The psychiatrist's concern for the applicant's son was shared by the headmaster and a teacher at the school he attended. In October 1991 they had contacted the Social Council and expressed concern about his learning difficulties and his general state of health. Following this, the Council commenced an investigation which, with Mrs Andersson's agreement, led to the placement of her son in a non-residential therapeutic school on 2 March 1992.
14. Under sections 1 and 2 of chapter 2 of the Freedom of the Press Act (Tryckfrihetsförordningen), which is part of the Swedish Constitution, everyone is entitled to access to public documents, subject to exceptions set out in the Secrecy Act (Sekretesslagen, 1980:100).
15. One of the exceptions to this general rule relates to confidentiality of information in the field of health and medical care and is set out in chapter 7, section 1, of the Secrecy Act, which provides as follows:
“Secrecy applies ... in the field of health and medical care to information on the individual's state of health or otherwise concerning his or her private life, unless it is clear that the information can be disclosed without any harm to the individual or persons closely related to him or her ...”
16. Notwithstanding this rule of confidentiality, in certain circumstances health and medical-care authorities are required to submit information to another authority. Thus, chapter 14, section 1, of the Secrecy Act provides the following:
“Secrecy does not prevent ... the disclosure of information to another authority, if an obligation to disclose the information is laid down in an act of law or a government ordinance.”
17. Such an obligation follows from section 71 of the Social Services Act 1980 (Socialtjänstlagen, 1980:620), subsections 2 and 4 of which read as follows:
“Authorities whose activities relate to children and young persons as well as other authorities within health and medical-care and social services are obliged immediately to report to the Social Council if, in the course of their activities, they receive information which may imply that an intervention by the Social Council is necessary for the protection of a minor. This also applies to the employees of such authorities and to physicians, teachers, nurses and midwives who are not so employed.
...
Authorities, employees and practitioners referred to in subsection 2 are obliged to give the Social Council all information which may be of importance to an investigation of a minor's need of protection.”
18. At the time of the enactment of the Social Services Act, the Parliament's Standing Committee on Health and Welfare (Riksdagens socialutskott) stated that the reporting obligation was not limited to cases where it was clear that the Social Council would have to intervene. In addition, unconfirmed information or information which was difficult to assess should also be reported, if it implied that a child might be in need of support or assistance from the Council. In such cases it would be for the Council to investigate whether there was any factual basis for the information in question and whether there was a need for any particular measure (see the report of the Standing Committee on Health and Welfare, SoU 1979/80:44, p. 113).
19. The obligation to report only concerns information which is of relevance to the Social Council's investigation. It does not extend to other information concerning the persons in question (see Government Bill 1989/90:28, p. 132). It is for the reporting authority or practitioner to decide which information is covered by the reporting obligation.
20. Information which is submitted to the Social Council is protected by the rule of confidentiality provided by chapter 7, section 4, of the Secrecy Act:
“Secrecy applies within the social services to information concerning the individual's private life, unless it is clear that the information can be disclosed without any harm to the individual or persons closely related to him or her ...”
21. Under the Freedom of the Press Act and the Secrecy Act, there is a right to appeal against a decision not to grant access to public documents. There is, however, no such right in respect of decisions to grant access to information contained in public documents. Furthermore, there is no right for the individual concerned to be consulted before such information is disclosed or to be notified of the disclosure afterwards.
22. Under chapter 20, section 3, of the Penal Code (Brottsbalken), a physician who, intentionally or through negligence, discloses information which should be kept confidential according to law is guilty of breach of professional secrecy. Proceedings may be brought in the ordinary courts by the public prosecutor or, if the public prosecutor decides not to prosecute, the aggrieved individual. Such a breach of professional secrecy may also constitute a basis for claiming damages under chapter 2, section 1, or chapter 3, section 1, of the Damage Compensation Act (Skadeståndslagen, 1972:207). Action may be taken by the individual against the physician or his or her employer.
23. Public authorities and their employees are, furthermore, subject to the supervision of the Chancellor of Justice (Justitiekanslern) and the Parliamentary Ombudsman (Justitieombudsmannen). The Chancellor and the Ombudsman investigate whether those exercising public powers abide by laws and follow applicable instructions and may prosecute a certain individual or refer the matter to disciplinary action by the relevant authority.
NON_VIOLATED_ARTICLES: 13
6
NON_VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-60000
LANGUAGEISOCODE: ENG
RESPONDENT: AUT
BRANCH: CHAMBER
DATE: 2001
DOCNAME: CASE OF BAISCHER v. AUSTRIA
IMPORTANCE: 3
CONCLUSION: Violation of Art. 6-1;Non-pecuniary damage - finding of violation sufficient;Costs and expenses partial award - domestic proceedings;Costs and expenses (Convention proceedings) - claim dismissed
JUDGES: Christos Rozakis
TEXT: 9. On 9 November 1994 the Braunau District Administrative Authority (Bezirkshauptmannschaft) convicted the applicant twice under the Motor Vehicles Act (Kraftfahrgesetz) for failure to comply with the instructions of the Authority to inform them who had used his car on specific days (Lenkerauskunft), and sentenced him, on each offence, to a fine of 4,000 ATS or six days’ imprisonment in default. The Authority noted that the applicant had given information but found it to be incorrect.
10. On 29 November 1994 the applicant filed an appeal against this decision with the Upper Austrian Independent Administrative Panel (Unabhängiger Verwaltungssenat). He complained that the District Administrative Authority had incorrectly applied the law and failed to sufficiently assess the evidence before it or clarify why the information he had given was untrue. The applicant did not request a hearing, nor did he expressly waive this right. No oral hearing was held.
11. On 2 January 1995 the Independent Administrative Panel dismissed the appeal on the merits but reduced the sentence.
12. On 28 February 1995 the applicant filed a complaint with the Constitutional Court (Verfassungsgerichtshof). He complained under Article 6 § 1 of the Convention that the Independent Administrative Panel had failed to hold a hearing. Such a hearing would have been necessary because his appeal was not limited to points of law. He had also criticised the District Administrative Authority’s assessment of evidence. Therefore an oral hearing would have been necessary. In such a hearing the Independent Administrative Panel could have properly assessed this evidence, which had already been obtained at first instance, as well as fresh evidence.
13. On 13 July 1995 the Constitutional Court declined to deal with the applicant’s complaint on the ground that it did not have sufficient prospects of success. Upon a request filed by the applicant on 10 August 1995, the Constitutional Court transferred the case to the Administrative Court (Verwaltungsgerichtshof).
14. On 23 February 1996 the Administrative Court, relying on Section 33a of the Administrative Court Act (Verwaltungsgerichtshofgesetz), declined to deal with the applicant’s case, finding that it did not raise important legal issues. On 10 May 1996 this decision was served on the applicant’s lawyer.
15. The relevant provisions of the Austrian Federal Constitution (Bundes-Verfassungs Gesetz) concerning the establishment of Independent Administrative Panels which entered into force on 1 January 1991 read as follows:
“It is the task of the Independent Administrative Panels in the regions and the Administrative Court in Vienna to ensure the lawfulness of the entire public administration.”
“(1) Independent Administrative Panels are composed of a president, a deputy president and a sufficient number of further members. Its members are appointed by the Regional Government for a period of at least six years. ...
(2) In fulfilling their tasks under Articles 129a and 129b the members of the Independent Administrative Panel are not bound by any instructions. The court business shall be distributed among the members in advance for the period provided for in the regional legislation. A matter which according to such a schedule is the business of one member may only be withdrawn from him or her in case of impediment by a decision of the president.
(3) Before the end of their term of office members of Independent Administrative Panels may only be removed from office in the cases specified by the law and upon a decision of the Independent Administrative Panel itself.
...”
16. The Upper Austria Regional Act on the Independent Administrative Panel, Regional Gazette no. 90/1990 (Gesetz über den Unabhängigen Verwaltungssenat des Landes Oberösterreich, LGBl. 90/1990), repeats to a large extent the provisions of the Federal Constitution, although the term of office of the members of the Upper Austria Independent Administrative Panel is indefinite (Section 3 § 3).
17. Section 33a of the Administrative Court Act (Verwaltungsgerichtshofgesetz) reads as follows:
"The Administrative Court may decline to deal with a complaint against a decision of an Independent Administrative Panel in an administrative criminal case if no prison sentence or a fine exceeding AS 10,000 has been imposed and the Administrative Court’s decision would not involve the determination of a legal question of fundamental importance. A legal question of fundamental importance is involved in particular if the challenged decision of the Independent Administrative Panel is at variance with the Administrative Court’s case-law, if no such case-law exists or if the legal questions at issue have not been answered uniformly in the Administrative Court’s case-law."
18. Section 51e of the Code of Administrative Offences (Verwaltungsstrafgesetz), as far as relevant, reads as follows:
“2. In case the appeal is expressly limited to points of law or concerns exclusively the severity of the sentence imposed, a hearing must only be scheduled if this is expressly requested in the appeal.
3. A hearing need not be held if the parties expressly waive their right to a hearing. The parties may express such a waiver up to the beginning of the hearing. ...”
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1