ITEMID: 001-110950
LANGUAGEISOCODE: ENG
RESPONDENT: EST
BRANCH: CHAMBER
DATE: 2012
DOCNAME: CASE OF SHUVALOV v. ESTONIA
IMPORTANCE: 3
CONCLUSION: No violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing);No violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-2 - Presumption of innocence)
JUDGES: Erik Møse;Julia Laffranque;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska;Oliver Kask;Peer Lorenzen
TEXT: 7. The applicant was born in 1964 and lives in Tallinn.
8. The applicant served as a judge at the Harju County Court at the material time. From 2003 he was in charge of a criminal case where D., a businessman, was one of the defendants. The case involved several charges including tax evasion, money laundering, aggravated breach of public order and bribery.
9. On 5 January 2006 the security police received D.’s statement according to which his business partner N. – who had owed D.’s company a substantial sum of money – had refused to pay back the loan for an extended period. Instead, N. had said that he knew the applicant well, having shared a dormitory room with him during their law studies, and that a judgment in D.’s favour could be arranged as long as he did not insist on the repayment of the loan. Furthermore, N. had demanded 200,000 Estonian kroons (EEK) (approximately 12,780 euros (EUR)) as a “Christmas good-will gesture” and a further EEK 900,000 (EUR 57,520) for D.’s acquittal.
10. On 5 January 2006 the police initiated criminal investigation in respect of the offences of accepting and arranging a bribe.
11. On 10 January 2006 a prosecutor authorised the covert surveillance of N. and on the following day the president of the Harju County Court authorised the interception and undercover audio recording of N.’s conversations. On 24 January and 7 February 2006 similar authorisations were given in respect of the applicant. The authorisations were subsequently extended on several occasions.
12. On 26 January 2006 the president of the Harju County Court authorised a simulation of the offence of giving a bribe by D. in order to entrap the applicant and N. as an intermediary.
13. On 27 February 2006 D. gave N. EEK 200,000 (EUR 12,780).
14. On 6 April 2006 D. gave N. EEK 400,000 (EUR 25,560). Within moments, N.’s car was stopped by the police; he was arrested and the money was seized.
15. Immediately thereafter, N. was interviewed as a suspect. In response to the question as to whether he had demanded money from D. for transferring it to the applicant as a bribe for a judgment in D.’s favour, he replied that he had not demanded any money from D. but had just communicated to him what the applicant had demanded. According to N., the applicant had said that if D. paid him EEK 900,000, he would give a judgment in D.’s favour. Under instructions from the security police, N. arranged a meeting with the applicant later the same day.
16. On 6 April 2006 at 2.30 p.m. the president of the Harju County Court authorised a simulation of the offence of arranging a bribe by N. in order to entrap the applicant.
17. Also on 6 April 2006 N., equipped with recording devices, met up with the applicant and gave him EEK 200,000. Some hours later the applicant was arrested and detained as a suspect. In the course of a search carried out on the following day he surrendered EEK 200,000. The applicant was released on 7 April 2006.
18. On 9 April 2006 the following press release was published on the Internet site of the Public Prosecutor’s Office under the title “A judge suspected of accepting a bribe”:
“On Thursday evening, in the course of a simulation of an offence, officers of the security police arrested a judge of the Harju County Court suspected of accepting a large bribe.
The judge is suspected of demanding a large bribe from an accused person through an intermediary for making a more favourable judgment in respect of [him]. The exact amount of the bribe cannot be disclosed at the moment in the interests of the investigation. On the evening of 6 April the judge suspected of bribery accepted part of the sum [he had been demanding] from a person involved in the simulation of the offence and the security police and the State Prosecutor’s Office conducting the investigation decided to arrest him shortly after accepting the money. The judge suspected of bribery did not have time to make the judgment in respect of the accused person.
On Friday investigators carried out necessary investigative steps after which the suspect was released.
The criminal proceedings concerning the suspicion in question were initiated some time ago. The security police and the State Prosecutor’s Office conducting the preliminary investigation do not consider it possible at present to disclose other details related to the suspicion referred to. The Penal Code stipulates that accepting a large bribe is punishable by imprisonment of up to ten years. According to the laws and legal acts in force a bribe comprises a large amount of at least three hundred thousand (300,000) kroons.”
19. Within a few days the identity of the judge suspected of having accepted a bribe became known. Prosecutor V. who was dealing with the case was subsequently quoted directly or indirectly on several television programmes and in several newspaper articles. These included, among others, the following extracts.
20. On 10 April 2006 in a news programme on Eesti Televisioon, a public television channel, prosecutor V. was shown saying:
“Suspicion that [the applicant] might accept a bribe emerged when the person from whom the bribe was allegedly demanded made a statement to that effect to the security police.”
21. On the same day in a news programme on Kanal 2, a private television channel, prosecutor V. was shown saying:
“The case commenced when the security police were contacted by a person from whom the judge allegedly demanded the bribe.”
In respect of the simulation of the offence carried out by the security police, prosecutor V. noted:
“The simulation [of the offence] was successful. Unfortunately I cannot mention any specific amounts at the moment. ...”
22. On 11 April 2006 the daily newspaper Postimees published an article by R.K. containing the following passage:
“[Prosecutor V.], who is in charge of the criminal investigation, [emphasised] to Postimees yesterday that the case had not been [made up] or provoked by [officers] of the security police. ‘Surveillance activities related to the suspected bribery of a judge commenced in January,’ V. said. ‘The criminal proceedings were initiated on the basis of very specific information when a person turned to the security police with his [problem].’”
23. On the same day the newspaper Äripäev published an article by A.O. containing the following passage:
“‘[I do] not comment or rebut,’ said prosecutor [V.], who is in charge of the investigation and who parried all [questions relating to the] facts of the bribery scandal. ‘A simulation has been carried out and the main evidence as such has been gathered. I expect that additional interviews and technicalities may take some weeks,’ [V.] added.”
24. On 20 April 2006 the weekly newspaper Eesti Ekspress published an article by M.K. containing the following passages:
“Prosecutor [V.] is asserting that it was [the applicant] himself who was demanding the money.
...
‘We are not [fishing] to see whether a judge accepts a bribe or not,’ prosecutor [V.] noted, [adding that] [the applicant] was ‘very careful’.”
25. On 19 May 2006 a public prosecutor requested permission from the Supreme Court to draw up a bill of indictment against the applicant. On 6 June 2006 the Supreme Court made a proposal in this regard to the President of the Republic who gave his authorisation on 13 June 2006.
26. On 5 October 2006 the Public Prosecutor’s Office submitted the bill of indictment to the Viru County Court. The applicant was charged under Article 294 § 2 (2) and (4) of the Penal Code (Karistusseadustik) with an aggravated offence of demanding a large bribe (in excess of EEK 300,000 (EUR 19,170)).
27. The bill of indictment, which extended to ten pages, contained a detailed description of the facts as deemed established by the prosecution, a list of a number of documents and other items attached to it, such as written and recorded evidence and records of various procedural acts, and a statement of the charges. The factual part, entitled “Circumstances of the offence”, contained, inter alia, the following passages:
“At the end of 2005... [the applicant] proposed that [D.] paid him 900,000 kroons through an intermediary, [N.], as a bribe for which the judge ... would take procedural decisions in favour of him and also acquit him.
...
... [N.] passed on [the applicant’s] demands for a bribe according to which 200,000 kroons had to be paid as a first instalment and a further 900,000 kroons were to be paid later.
...
On 6 April 2006 [D.] called [N.] ... . When they met, [D.] gave [N.] 200,000 kroons. [N.] looked at the money and said that it was not enough. [D.] handed over a further 200,000 kroons.
...
On the same day ... [N.] sent a text message to [the applicant] asking to meet him ... . ... N. got into [the applicant’s] car ... . ... [The applicant] signalled that the money could be passed over. [N.] took a paper bag containing 200,000 kroons from his inside pocket and placed it between the two front seats. ...”
28. The nature and amount of damage caused by the offence was formulated as follows in the bill of indictment:
“No pecuniary damage has been caused by the offence committed by [the applicant]. The offence was committed by a judge who made use of his official position and breached an important principle of a State governed by the rule of law, according to which justice is administered by an independent, impartial and honest court. The reputation of the law-enforcement agencies of the Republic of Estonia as a whole has been discredited.”
29. The statement of charges against the applicant included the following passages:
“[The applicant] is charged with accepting a large bribe which involved demanding the bribe ... under Article 294 § 2 (2) and (4) of [the Penal Code].
...
... When the car stopped [the applicant] took from [N.], as agreed, the first part of the sum of the bribe that had been demanded, cash in the amount of 200,000 kroons, which [D.] had given ... to [N.] to pass on to [the applicant] for taking decisions in favour of [D.] in the criminal case ... and for acquitting him later. Payment of the remaining sum – 900,000 kroons – was to take place later.
...
... By demanding a bribe from [D.] and accepting part of it, that is 200,000 kroons, through the intermediary [N.], [the applicant] breached an important principle of a State governed by the rule of law, according to which justice is administered by an independent, impartial and honest court, whereby [he] committed an offence under Article 294 § 2 (2) and (4) of [the Penal Code].”
30. On 6 October 2006 a press release titled “The judge’s criminal case has arrived at the court” was published on the Internet site of the Public Prosecutor’s Office. It read:
“The state prosecutor [V.] has sent a criminal case to court in which [the applicant], a judge of the Harju County Court, is charged with having demanded a large bribe.
The facts established by the security police in the course of the preliminary investigation give ground to charge [the applicant], who served as a judge of the Harju County Court, with demanding a large bribe from an accused person through an intermediary. In return, the judge promised to take decisions in favour of the accused in the course of the court proceedings and also to acquit him. [The applicant] did not have time to make a judgment in the case in question as, because of the present criminal proceedings, the case was transferred to another division of the court.
The judge wanted to receive the money from the accused in two instalments. At the end of last year [the applicant] wanted to receive 200,000 kroons from the accused in addition to the 900,000 kroons that had already been requested through the intermediary. On 6 April 2006 the judge accepted the 200,000 kroons in cash from the intermediary.
Officers of the security police arrested [the applicant], who was serving as a judge, on suspicion of having accepted a large bribe on 6 April this year, after he had accepted 200,000 kroons in cash from the intermediary.
[The applicant], having demanded and partly accepted a bribe from an accused, committed [the offence of] demanding a large bribe. The precise classification of the offence with which [the applicant], a former judge of the Harju County Court is charged, is Article 294 § 2 (2) and (4) of the Penal Code. In the event that he is convicted, two to ten years’ imprisonment may be imposed as punishment.
[The applicant], a judge, made use of his official position and breached an important principle of a state governed by the rule of law, according to which justice is administered by an independent, impartial and honest court. ”
31. By the Viru County Court’s decision of 24 October 2006 the applicant was committed for trial. The first hearing was scheduled for 23 November 2006.
32. On 20 November 2006 Postimees published an article based on a press release from a news agency, BNS, which included the following passage:
“According to the [public] prosecutor, [the applicant] asked [D.] for the total sum of 1.1 million kroons, of which he received 200,000 in the course of the simulation of the offence through an intermediary, [D.’s] business partner [N.]. ‘[The applicant] wished to receive the money in instalments,’ [V.] noted.”
The online version of the article on the newspaper’s website also contained the following sentence:
“‘According to the information gathered during the investigation, the initiative of asking for the money came from the judge and there was no provocation,’ [V.] affirmed ...”
33. On 23 November 2006 the trial started at the Viru County Court.
34. On the same day Eesti Ekspress published an article by M.K. entitled “A judge asked for bribe in a jacuzzi”. Although no reference was made to the sources of information in the article, the applicant submitted that the information, which involved private information and delicate personal data, had originated from prosecutor V. The article does not contain an assessment by the prosecutor of the applicant’s guilt.
35. On the same day in a news programme on Eesti Televisioon prosecutor V. was shown saying:
“[The applicant] is charged with having demanded a large bribe from an accused person in criminal proceedings of which he was in charge. In return he promised to take decisions in favour of the accused in the course of the criminal proceedings and also to acquit him.”
Apparently in reply to a journalist’s question, she continued:
“Indeed, as these names have already been mentioned in the press, it can be affirmed that the person from whom he demanded the bribe was [D.]. The total sum the judge wanted was 1.1 million kroons.”
Apparently in reply to a question about the applicant’s possible motives, the prosecutor said:
“He has indeed made statements during the preliminary investigation but I cannot comment on their content as this might cause damage to the exercise of his defence rights.”
36’s guilt. The court dismissed the request. It examined the newspaper articles submitted by the applicant and found that they contained information received from the prosecutor. However, the court found that the articles did not indicate that the prosecutor had treated the applicant as being guilty. Furthermore, it considered that increased public interest in the case where the suspect was a judge was understandable and justified.
37. At the hearing of 15 August 2007 the applicant again requested the removal of the prosecutor on similar grounds as on the previous occasion. The court refused to examine the request finding that it had already dismissed a similar request and no new arguments had been put forward.
38. At the hearing of 26 October 2007 the prosecutor dropped the charges in respect of the element of demanding the bribe. She also requested that the applicant be convicted of an attempted offence.
39. On 31 January 2008 the Viru County Court delivered a judgment by which the applicant was convicted of attempting to accept a bribe (Article 294 § 1 of the Penal Code). He was sentenced to three and a half years’ imprisonment.
40. The court noted that in 2004 N. had already made the applicant an offer concerning the bribe. On 4 April 2006 the applicant consented to accepting the bribe and took the money on 6 April 2006, being aware that it had come from D. in connection with the criminal case in which he was a defendant. The court relied on the statements of N. and D. as well as the undercover recordings and surveillance reports. It found that the charges concerning the applicant’s alleged demand for a bribe of EEK 1,100,000 had not been proven. These charges had been based on the statements of N. and were only partly supported by D.’s submissions who, in turn, relied on what he had heard from N. The court considered that N. had not only transferred information between the applicant and D. but had also pursued his own agenda. It considered it probable that N. had presented the applicant’s readiness to accept a bribe to D. as a demand for bribe. Applying the principle that any reasonable doubt should benefit the accused, the court only considered it established that the applicant had agreed to accept, and had accepted, a bribe of EEK 200,000. Furthermore, the court classified it as an attempted offence.
41. The applicant filed an appeal with the Viru Court of Appeal against the County Court’s judgment.
42. On 20 March 2008 the applicant requested that the Court of Appeal remove the prosecutor. The court dismissed the request. It noted, inter alia, that the newspaper articles had not influenced the court and that the County Court had in fact dismissed certain charges against the applicant.
43. By a judgment of 28 March 2008 the Viru Court of Appeal upheld the County Court’s judgment.
44. On 9 June 2008 the Supreme Court declined to examine the applicant’s appeal.
45. In the meantime, in December 2006 the applicant lodged a claim for compensation for non-pecuniary damage against the Public Prosecutor’s Office with the Tallinn Administrative Court. Referring to the press releases, newspaper articles and television programmes quoted above (see paragraphs 18, 20 to 24, 30, 32, 34 and 35), he argued that the prosecutor’s public statements made during the criminal proceedings had not respected his presumption of innocence and that his right to respect for his private life had been infringed. The applicant contended that the prosecutor, being an authoritative source, had given a legal assessment that the applicant had committed a crime. She had addressed matters such as the classification and degree of the offence as well as possible provocation and presented her opinion on these matters to the public as a statement of fact. The applicant was dissatisfied that in the interviews given in April 2006 the prosecutor had given the impression that the criminal proceedings had been successful and everything was clear, the evidence had been gathered and what had remained had only been technicalities. The prosecutor had persuaded the public that it had been the applicant who had demanded the bribe and had disclosed the amounts of the bribe in question. Prosecutor V. had also given a number of interviews after the commencement of the court proceedings from which it could be understood that the whole matter was an extremely simple and clear story.
46. The Public Prosecutor’s Office objected. It contended that under the Public Information Act (Avaliku teabe seadus) it was required to disclose to the media information concerning criminal proceedings in respect of which public interest could be anticipated. The applicant had not been named in the press release of 9 April 2006. Furthermore, the choice of words by prosecutor V. in various interviews had made it unequivocally clear that the applicant had been a suspect. The press release of 6 October 2006 had been based on the bill of indictment which represented the position of the Public Prosecutor’s Office to be proved in court. The Public Prosecutor’s Office had sought to disclose a minimal amount of precise information to the public.
47. In a written statement to the Administrative Court by the head of the public relations department of the Public Prosecutor’s Office it was noted that the press release of 9 April 2006 had been prompted by a telephone call from a journalist who had heard about the arrest of a judge and had sought confirmation of that information. It was considered that rumours could have caused damage to the investigation, the suspect and the judiciary as a whole. The press release had been based on facts and contained no personal references. On the following days several media channels interviewed prosecutor V. who gave no further information than was contained in the press release. It was noted that the media had also used sources other than the Public Prosecutor’s Office. In respect of the press release of 6 October 2006 it was noted that the Public Prosecutor’s Office usually gave information concerning criminal cases that had attracted public interest. In order to secure equal treatment of different media channels, press releases summarising the content of the charges were issued.
48. On 5 December 2007 the Tallinn Administrative Court dismissed the complaint, finding that the Public Prosecutor’s Office had released the information in compliance with the Code of Criminal Procedure (Kriminaalmenetluse seadustik). Furthermore, it held as follows:
“7.4. In assessing the lawfulness of the actions of the Public Prosecutor’s Office, it is necessary to clarify on which considerations they were taken. According to the submission of [the Public Prosecutor’s Office], [its] press officers and prosecutor [V.] acted in order to give to the media, which demonstrated extraordinarily high interest in the criminal case in question, information that was as precise and as minimal as possible.
The court agrees with the [Public Prosecutor’s Office] that there was elevated public interest in the criminal case in question. This is already demonstrated by the fact that the criminal proceedings were extensively covered by the press. [This is] also [confirmed] by journalists’ numerous [requests for information] to the [Public Prosecutor’s Office] ... . There is no dispute between the parties about the fact that the criminal case was extensively covered by the press and this can also be concluded on the basis of the materials of the case. As the criminal proceedings were being conducted in respect of a judge who had also been arrested as a suspect, the court considers that the elevated interest of the public in the criminal case was justified. The court considers it a matter of general knowledge that the press, in particular the part of it that qualifies as non-quality press, also tends to publish untrue information. Therefore the court agrees with the [Public Prosecutor’s Office] that [its] ... communication with the media is also very important in order to avoid, or at least minimise, the spread of misinformation.
7.5. The court has not established that the information released by the Public Prosecutor’s Office to the press in the course of the preliminary investigation of the criminal case ... went beyond what was objectively necessary for informing the public or that the applicant’s interests were excessively interfered with.
It appears from the materials of the case that the Public Prosecutor’s Office declined to release detailed information on the circumstances of the offence at the time when [the applicant] had the status of suspect. The press release of the Public Prosecutor’s Office of 9 April 2006 and the disclosure of information (interviews) by [the prosecutor] in charge of the criminal proceedings to the programmes Aktuaalne Kaamera of [Eesti Televisioon] and Krimi of Kanal 2 as well as the newspapers Postimees, Äripäev and Eesti Ekspress ... fell within this period. It can be clearly understood from the press release and the public prosecutor’s statements that [the Public Prosecutor’s Office] merely suspected the applicant of having accepted a bribe. The [applicant’s] allegation that the identity of the judge in respect of whom the proceedings were being carried out was disclosed by the Public Prosecutor’s Office is incorrect. ... [In] the Harju County Court’s press release of 10 April [2006] it is stated that ‘the judge suspected of accepting a large bribe who was arrested by the security police in the course of the simulation of the offence is [the applicant]’... . Thus, the identity of the judge suspected of the offence was already known to the public when [the prosecutor] used [the applicant’s] name in communication with the media. Therefore the use of [the applicant’s] name by [the prosecutor] after the Harju County Court’s press release of 10 April [2006] did not aggravate [the applicant’s] situation.
Information about the classification and degree of the offence and the amounts of the bribe were disclosed by the Public Prosecutor’s Office only after the drawing up of the bill of indictment when [the applicant’s] status had changed to an accused. Proceeding from Article 226 § 1 of [the Code of Criminal Procedure], the drawing up of the bill of indictment demonstrates the conviction of the Public Prosecutor’s Office that all the necessary evidence had been gathered. Publication of the press release of 6 October 2006 by the Public Prosecutor’s Office and disclosure of information (interviews) by [the prosecutor] in charge of the criminal proceedings to the news agency BNS, newspaper Eesti Ekspress, and the programme Avatud Toimik on [Eesti Televisioon] ... fall within this period. The press release and the subsequent imparting of information were based on the official bill of indictment. The court agrees with the [Public Prosecutor’s Office] that giving more detailed information about the bill of indictment than the suspicion is legitimate since the bill of indictment represents the result of the pre-trial proceedings and indicates that the criminal proceedings are about to resume in court.
The court does not agree with [the applicant’s] position that the Public Prosecutor’s Office violated the principle of the presumption of innocence. The presumption of innocence is protected by Article 22 of the Constitution and Article 6 § 2 of the European Convention on Human Rights ... . Nevertheless, addressing criminal proceedings in the media before passing a judgment is not completely restricted by the presumption of innocence. It has been found in the case-law that covering a case in the media during the pre-trial proceedings may result in a violation of the presumption of innocence but this does not mean that nothing about the pre-trial proceedings may be published in the media (see the judgment of 15 October 1996 of the Criminal Chamber of the Supreme Court in case no. 3-1-1-109-96). The content of what is disclosed to the media about the criminal proceedings is decisive – if only objective information reaches the public, the court considers that the publication of such information does not interfere with the presumption of innocence. It has not been established in the present case that the Public Prosecutor’s Office informed the public about the criminal proceedings in a subjective manner or gave an opinion about [the applicant’s] guilt. [The European Convention on Human Rights] does not prohibit informing the public about proceedings when no opinion about the guilt is given (Worm v. Austria, 29 August 1997, Reports of Judgments and Decisions 1997V).
7.6. In sum, the court considers that the Public Prosecutor’s Office objectively informed the public about the criminal proceedings. The information given to the press did not exceed the limits of the objective need to inform the public, nor did it excessively damage the interests of [the applicant]. As the actions of the Public Prosecutor’s Office were lawful there is no ground to allow the claim for damages ... .”
49. On 5 June 2008 the Tallinn Court of Appeal upheld the Administrative Court’s judgment. It held, inter alia, as follows:
“The public interest and the interest of the person concerned have to be assessed in the specific circumstances. [The applicant’s] position that in the present case the statements of the Public Prosecutor’s Office related to an individual case in respect of which there could be no public interest cannot be sustained. In the case in question there was a suspicion that a judge had committed an offence of accepting a bribe. [The Public Prosecutor’s Office] correctly notes that the initiation of criminal proceedings related to the suspected acceptance of a bribe by a judge concerns the exercise of functions by a high official. The suspicion that a high official expected to enjoy public confidence has accepted a bribe is an important event justifying elevated public interest. It also justifies the Public Prosecutor’s Office informing the public of such an important event.
The Administrative Court concluded that the information disclosed about the criminal proceedings had not exceeded the limits of the objective need to inform the public and that the presumption of innocence had not been violated. The Court of Appeal agrees with that assessment. [The applicant] validly argues that the [case of Worm], referred to in the judgment, concerns the disclosure of information in respect of ongoing criminal proceedings. However, the case-law of the [European Court of Human Rights] does not prohibit disclosure of information concerning pre-trial proceedings and the Supreme Court in case no. 3-1-1-109-96 has also admitted that media coverage of a case during pre-trial proceedings may in itself result in a violation of the presumption of innocence, but this does not mean that nothing at all may be disclosed about pre-trial proceedings.
... [The] Court of Appeal agrees with the position of the first-instance court that there is no ground to allow the claim for damages since the actions of [the Public Prosecutor’s Office] in disclosing the information were lawful and this was done without excessive damage to the rights of [the applicant].”
50. On 24 September 2008 the Supreme Court declined to examine the applicant’s appeal.
51. Article 22 § 1 of the Constitution of the Republic of Estonia (Eesti Vabariigi põhiseadus) and Article 7 § 1 of the Code of Criminal Procedure (Kriminaalmenetluse seadustik) provide that no one shall be considered guilty of a criminal offence before a convicting judgment has entered into force in respect of him or her.
52. According to Articles 49 and 53 of the Code of Criminal Procedure a suspect or an accused may request the removal of a prosecutor if he or she lacks impartiality but has not withdrawn himself or herself. In pre-trial proceedings such a request is resolved by the State Prosecutor’s Office and in court proceedings by the court dealing with the case.
53. The State Liability Act (Riigivastutuse seadus) sets out the rules concerning compensation for non-pecuniary damage (mittevaraline kahju) in section 9, which stipulates as follows:
“(1) A natural person may claim financial compensation (rahaline hüvitamine) for non-pecuniary damage resulting from wrongful (süüline) harm to his or her dignity, damage to health, deprivation of liberty, violation of the inviolability of the home or private life or of the confidentiality of correspondence, or defamation of the person’s honour or good name.
(2) Non-pecuniary damage shall be compensated for in proportion to the gravity of the offence (õiguserikkumine) ... .”
54. Article 6 § 3 (2) of the Code of Administrative Court Procedure (Halduskohtumenetluse seadustik), as in force at the material time, provided that a claim for compensation for damage caused in public law relationships could be lodged with an administrative court.
55. Paragraph 2 of section 134 of the Obligations Act (Võlaõigusseadus), as in force at the material time, provided:
“In the case of an obligation to compensate for damage arising from ... violation of a personality right, in particular from defamation, the obligated person shall compensate the aggrieved person for non-pecuniary damage only if this is justified by the gravity of the violation, in particular by physical or emotional distress.”
56. Section 1045 of the Obligations Act stipulates that the causing of damage is unlawful if, inter alia, the damage is caused by the violation of a personality right of the victim. The Obligations Act further provides:
“(1) The defamation of a person, inter alia by passing undue judgment, by the unjustified use of the name or image of the person, or by breaching the inviolability of the private life or another personality right of the person, is unlawful unless otherwise provided by law. Upon the establishment of unlawfulness, the type of violation, the reason and motive for the violation and the gravity of the violation relative to the aim pursued thereby shall be taken into consideration.
(2) The violation of a personality right is not unlawful if the violation is justified considering other legal rights protected by law and the rights of third parties or public interests. In such cases, unlawfulness shall be established on the basis of the comparative assessment of different legal rights and interests protected by law.”
“(1) The violation of personality rights or interference with the economic or professional activities of a person by way of disclosing incorrect information or by the incomplete or misleading disclosure of information concerning a person or the activities of the person is unlawful unless the person who discloses such information proves that, upon the disclosure thereof, he or she was not aware and was not required to be aware that such information was incorrect or incomplete.
(2) The disclosure of defamatory information concerning a person, or information which may adversely affect the economic situation of a person, is deemed to be unlawful unless the person who discloses such information proves that the statement is true.
(3) Regardless of the provisions of subsections (1) and (2) of this section, the disclosure of information is not deemed to be unlawful if the person who discloses it or the person to whom such information is disclosed has a legitimate interest in the disclosure, and if the person who discloses the information has verified it with a thoroughness which corresponds to the gravity of the potential violation.
(4) In the case of the disclosure of incorrect information, the victim may demand that the person who disclosed it acknowledge that it is incorrect or publish a correction at his or her own expense, regardless of whether the disclosure of the information was unlawful or not.”
“(1) If unlawful damage is caused continually or a threat is made that unlawful damage will be caused, the victim or the person who is threatened has the right to demand that behaviour which causes damage be terminated or the making of threats of such behaviour be refrained from. In the case of bodily injury, damage to health, violation of the inviolability of personal life or any other personality rights, it may be demanded, inter alia, that the tortfeasor be prohibited from approaching others (restraining order), the use of housing or communication be regulated, or other similar measures be applied.
(2) The right to demand that behaviour which causes damage as specified in subsection (1) of this section be terminated does not apply if it is reasonable to expect that such behaviour can be tolerated in human coexistence or that it is justified by significant public interest. In such a case the victim still has the right to make a claim for compensation for damage caused unlawfully.
...”
NON_VIOLATED_ARTICLES: 6
NON_VIOLATED_PARAGRAPHS: 6-1
6-2


ITEMID: 001-108199
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: ADMISSIBILITY
DATE: 2011
DOCNAME: BRUNNER v. TURKEY
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: András Sajó;Françoise Tulkens;Guido Raimondi;Paulo Pinto De Albuquerque
TEXT: The applicant, Ms Elisabeth Brunner, is an Austrian national who was born in Austria and lives in Istanbul. She was represented before the Court by Mrs G. Altay and Mr H. Karakuş, lawyers practising in Istanbul.
The facts of the case, as submitted by the applicant, may be summarised as follows.
The applicant describes herself as a human rights activist and a worker in Turkey.
According to her submissions, on 18 April 2004 she was kidnapped by four people while she was on her way to attend a seminar. She claims that these people harassed her, threatened her with death to induce her to act as a spy for them and to give away the names of her international collaborators, and stubbed out cigarettes on her arms when she refused to do so. She then lost consciousness on receiving a blow to the head.
The following day, 19 April 2004, the applicant requested that criminal proceedings be opened against her alleged kidnappers; she claimed that they were police officers. She also requested to be examined at the Forensic Medicine Institute.
On the same day the applicant applied to the Human Rights Association, where she was examined by several doctors. The report drawn up afterwards indicates that the blisters caused by cigarette burns and soft-tissue lesions on her body coincided with her description of the events.
On 27 April 2005 the Tuzla public prosecutor took the applicant’s statement.
After a period during which her requests for information were all refused by the public prosecutor, on 17 April 2008 the applicant issued another request for information about the progress of the investigation. On 23 June 2008 the Tuzla public prosecutor responded to her request, indicating that the investigation was still pending and the perpetrators of the offence were being sought. The applicant was also informed that she would be notified of further developments as they occurred.


ITEMID: 001-119272
LANGUAGEISOCODE: ENG
RESPONDENT: POL
BRANCH: ADMISSIBILITY
DATE: 2013
DOCNAME: KUSINA v. POLAND
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: David Thór Björgvinsson;George Nicolaou;Ineta Ziemele;Krzysztof Wojtyczek;Päivi Hirvelä;Vincent A. De Gaetano;Zdravka Kalaydjieva
TEXT: 1. The applicant, Mr Wiesław Kusina, is a Polish national, who was born in 1955 and lives in Gawłuszowice.
2. The Polish Government (“the Government”) were represented by their Agent, Mr J. Wołąsiewicz, succeeded by Ms J. Chrzanowska, of the Ministry of Foreign Affairs.
3. The facts of the case, as submitted by the parties, may be summarised as follows.
4. The applicant is married and has three children. Prior to his application for an EWK pension he had been employed until 31 October 2001.
5. On 1 October 2001 the applicant filed an application with the Rzeszów Social Security Board (Zakład Ubezpieczeń Społecznych) to be granted the right to an earlyretirement pension for persons raising children who, due to the seriousness of their health condition, required constant care, the so-called “EWK” pension.
6. Along with his application for a pension, the applicant submitted, among other documents concerning his son’s health, a medical certificate issued by Dr Z.L, a urologist, which had been issued on 21 September 2001. The certificate also bore a stamp of the urology centre in Przemyśl (Poradnia urologiczna Przychodni Specjalistycznej 114 Szpitala Wojskowego w Przemyślu) (“the Centre”) and stated that the child (born in 1994) suffered from neurogenic bladder disorder (dysfunkcja neurogenna pęcherza moczowego) and was in need of the parent’s constant care.
7. On 12 October 2001 the Rzeszów Social Security Board (“the SSB”) issued a decision granting the applicant the right to an earlyretirement pension in the net amount of 856 Polish zlotys (PLN) per month.
8. The Social Security Board initially suspended the payment of the pension due to the fact that the applicant was still working on the date of the decision. The applicant resigned from his job where he had been working since 1974. On 1 November 2001, the payment of the pension was resumed.
9. On 22 August 2002 the Social Security Board asked the Centre to provide medical documentation concerning the applicant’s son. In reply, the Centre informed it that the child had never been registered there as a patient. However, the relevant medical documentation was provided by two private medical establishments.
On an unknown date the Rzeszów Social Security Board requested the Social Security Board’s doctor (Główny Lekarz Orzecznik) to specify whether the applicant’s son required the permanent care of a parent.
On 20 September 2002 the doctor stated, on the basis of the medical records provided to the SSB, that the child could not be considered as ever having required such care.
10. On 24 September 2002 the Rzeszów Social Security Board simultaneously issued two decisions in respect of the applicant. By virtue of the first decision, the payment of the applicant’s pension was discontinued with immediate effect. By virtue of the second decision, the Board reopened the proceedings, revoked the initial decision granting a pension and eventually refused to award the applicant the right to an early-retirement pension under the scheme provided for by the Cabinet’s Ordinance of 15 May 1989 on the right to early retirement of employees raising children who require permanent care (Rozporządzenie Rady Ministrów z dn. 15 maja 1989 w sprawie uprawnień do wcześniejszej emerytury pracowników opiekujących się dziećmi wymagającymi stałej opieki) (“the 1989 Ordinance”).
11. The applicant appealed against these decisions. He submitted that he should receive the benefit because his child required constant care, as confirmed by the medical certificate attached to the applicant’s original application for a pension. Moreover, the applicant alleged that the revocation of his retirement pension was contrary to the principle of vested rights.
12. On 14 September 2004 the Tarnobrzeg Regional Court (Sąd Okręgowy) dismissed the appeal. During the proceedings, the applicant’s son was examined by specialist urologists on three occasions. The experts found that he suffered from a minor phimosis and nocturnal enuresis. In their view, the medical documentation did not contain any evidence that the child had ever suffered from, or had been treated for, the diseases as diagnosed by Z.L. They stated that those particular disorders could not be diagnosed as such without carrying out a series of prior comprehensive examinations. The child’s medical records did not mention any of such examinations.
The Regional Court held that the applicant’s child did not require his father’s permanent care since his state of health did not significantly impair his body functions. The domestic court held that the applicant had been rightfully divested of his right to a pension under the scheme provided by the 1989 Ordinance as he did not satisfy the requirement of necessary permanent care.
13. The applicant appealed against the first-instance judgment.
14. On 15 December 2004 the Rzeszów Court of Appeal (Sąd Apelacyjny) dismissed the appeal.
15. On 18 March 2005 the Supreme Court (Sąd Najwyższy) refused to entertain the cassation appeal lodged by the applicant.
16. In 2003 the Rzeszów District Prosecutor filed a bill of indictment against Z.L., a doctor from the specialist urology centre in Przemyśl (Poradnia urologiczna Przychodni Specjalistycznej 114 Szpitala Wojskowego w Przemyslu) (“the Centre”). He was charged with issuing five fraudulent certificates confirming that five persons (including the applicant’s son) had been treated in the Centre.
17. The applicant was questioned as a witness in the proceedings.
18. On 12 January 2004, the doctor pleaded guilty to the charges.
19. On 4 February 2004 the Rzeszów District Court discontinued the proceedings against Z.L. on the ground that the act committed was of minor significance (“wypadek mniejszej wagi”). It further ordered him to pay a fine of PLN 1,000.
20. Following the social security proceedings the applicant was not ordered to return his early-retirement benefits paid by the Social Security Board, despite the revocation of his right to the early-retirement pension.
21. The applicant submitted, in general, that after the revocation of the EWK pension his financial situation had been difficult.
22. The Government submitted that the applicant owned a farm (4.14 hectares) which was a source of income for him and his family. In addition, the applicant’s wife had been employed since 2007.
23. The legal provisions applicable at the material time and questions of practice are set out in the judgments in the case of Moskal v. Poland, no. 10373/05, §§ 3134, 15 September 2009, and Antoni Lewandowski v. Poland, no. 38459/03, §§ 3643, 2 October 2012).


ITEMID: 001-114440
LANGUAGEISOCODE: ENG
RESPONDENT: NLD
BRANCH: ADMISSIBILITY
DATE: 2012
DOCNAME: ZWINKELS v. THE NETHERLANDS
IMPORTANCE: 3
CONCLUSION: Inadmissible
JUDGES: Alvina Gyulumyan;Corneliu Bîrsan;Egbert Myjer;Ján Šikuta;Josep Casadevall;Kristina Pardalos;Luis López Guerra
TEXT: 1. The applicant, Mr Martinus Gerardus Maria Zwinkels, is a Netherlands national, who was born in 1960 and lives in Oterleek.
3. On 8 September 2006 two inspectors of the Labour Inspectorate (Arbeidsinspectie) inspected the premises of the applicant under the Foreign Nationals (Employment) Act (Wet arbeid vreemdelingen). The inspectors found that the applicant’s house was being painted by two persons who did not have either Netherlands nationality or a nationality that allowed them to be equated with Netherlands nationals for employment purposes and that they did not hold a work permit (tewerkstellingsvergunning). During the inspection, the two inspectors entered the applicant’s garage, which was not connected to his house, in the applicant’s absence and without his permission, where they questioned the two foreign persons. The applicant alleges that no interpreter was present.
4. On 13 October 2006 the applicant and his wife were questioned by two inspectors of the Labour Inspectorate regarding the alleged infringement of the Foreign Nationals (Employment) Act. During the interview, one of the inspectors stated “whenever there was a foreign smell, I would always ask for [a work permit]”. The applicant expressed his discontent with this behaviour of the inspector but no note was taken of the incident in the report of the interview.
5. On 4 December 2006 the Deputy Minister (staatssecretaris) of Social Affairs and Employment (Sociale Zaken en Werkgelegenheid) sent copies of the inspectors’ reports to the applicant.
6. In a letter dated 5 February 2007, the Deputy Minister informed the applicant of the intention to fine him 8,000 euros (EUR) in accordance with section 19a in conjunction with section 2 of the Foreign Nationals (Employment) Act.
7. In his written comments (zienswijze) the applicant disputed the amount of the fine and he complained that the inspectors had entered his garage without his permission. By decision of 23 March 2007 the Minister of Social Affairs and Employment rejected the applicant’s arguments and imposed the fine of 8,000 EUR.
8. The applicant lodged an objection (bezwaar) against this decision, explaining in more detail the arguments stated in his written comments, pleading mitigating circumstances and arguing further that he disagreed with the different interpretations of the word “employer” in the Netherlands legal system. Furthermore, he complained about the behaviour of one of the inspectors of the Labour Inspectorate during the interview of 13 October 2006.
9. During a hearing by telephone (telefonische hoorzitting) on 5 December 2007 the applicant was given the chance further to elaborate on these statements.
10. On 11 January 2008 the Minister dismissed the applicant’s objection, stating the legal grounds for the decision and pointing out to the applicant that, in relation to the behaviour of the inspectors during the interview, he could file a formal complaint against these persons with the Labour Inspectorate. The applicant’s complaints regarding the entering of the garage were also rejected as it had appeared that the garage was not in direct connection with his house, which obviated the need for permission to enter it.
11. The applicant appealed against the decision to the Alkmaar Regional Court (rechtbank) on 28 January 2008 restating the arguments set out in his objection, including the complaint that the inspectors of the Labour Inspectorate had entered his garage without his permission.
12. On 27 July 2009 the Regional Court held that because the applicant’s garage was not directly connected to his house, the inspectors had not needed permission to enter it. The Regional Court rejected the applicant’s other complaints but decided to reduce the fine to the amount of EUR 7,600 because the proceedings before the court had exceeded a reasonable time.
13. On 17 February 2010 the Administrative Jurisdiction Division of the Council of State (Afdeling bestuursrechtspraak van de Raad van State, “the Administrative Jurisdiction Division”) dismissed the applicant’s appeal holding, inter alia, that it had not been properly argued as regards the entering of his garage by the inspectors.
14. The relevant sections of the Foreign Nationals (Employment) Act provide as follows:
1. In this Act and delegated legislation based on it, [the following definitions shall apply]:
a. The Minister: the Minister of Social Affairs and Employment;
b. employer:
1º the person who, in the exercise of an office, profession or business, has someone else perform work (degene die in de uitoefening van een ambt, beroep of bedrijf een ander arbeid laat verrichten); ...
1. It is forbidden for an employer to employ a foreign national in the Netherlands without a work permit.
1. Any failures to comply with sections 2(1) ... shall be deemed administrative offences (overtredingen). ...
1. A civil servant appointed by the Minister [i.e. the Minister of Social Affairs and Employment] for that purpose and coming under the Minister’s authority shall, in the Minister’s name, impose an administrative fine on any person to whom the obligations deriving from this Act apply, in so far as the failure to comply with such obligations is deemed an administrative offence.
2. The administrative offences defined for the purpose of this Act ([d]e terzake van deze wet gestelde overtredingen) shall apply with regard to every person with whom or in relation to whom an administrative offence has been committed (ten opzichte van elk persoon, met of ten aanzien van wie een overtreding is begaan).”
15. The Foreign Nationals (Employment) Act Fining Policy Rules, first published in the Official Gazette (Staatscourant) 2004, no. 249 and renewed every year since then (as relevant to the case before the Court, Official Gazette 2006, no. 250), set out a tariff to be applied in imposing administrative fines. A legal body which employs a foreign national without a work permit will be fined EUR 8,000. If the employer is a natural person not a legal entity, the fines are reduced by half.


ITEMID: 001-104913
LANGUAGEISOCODE: ENG
RESPONDENT: UKR
BRANCH: CHAMBER
DATE: 2011
DOCNAME: CASE OF LUCHANINOVA v. UKRAINE
IMPORTANCE: 3
CONCLUSION: Violation of Article 6 - Right to a fair trial (Article 6 - Administrative proceedings;Article 6-1 - Fair hearing);Violation of Article 6+6-3-b - Right to a fair trial (Article 6 - Administrative proceedings;Article 6-1 - Fair hearing) (Article 6-3-b - Preparation of defence;Article 6 - Right to a fair trial);Violation of Article 6+6-3-c - Right to a fair trial (Article 6 - Administrative proceedings;Article 6-1 - Fair hearing) (Article 6-3-c - Defence through legal assistance;Article 6 - Right to a fair trial);Violation of Article 2 of Protocol No. 7 - Right of appeal in criminal matters;Non-pecuniary damage - award
JUDGES: Angelika Nußberger;Dean Spielmann;Elisabet Fura;Ganna Yudkivska;Isabelle Berro-Lefèvre
TEXT: 4. The applicant was born in 1947 and lives in the town of Trostyanets.
5. On 8 September 2000 a security officer of the applicant’s former employer, a private company, drew up a report in which he stated that in the course of the applicant’s work on 7 September 2000 she had stolen thirty-five labels, the total value of which was 0.42 Ukrainian hryvnias (UAH). These labels were found in the applicant’s possession when she was leaving the company’s premises. The applicant acquainted herself with the report and explained to the company administration that she had not had any intention of using the labels, but had been going to throw them away.
6. On the same day the report was submitted to the Trostyanets Court with a request that the applicant be found guilty of having committed an administrative offence within the meaning of Article 51 § 1 of the Code on Administrative Offences.
7. On an unspecified date the applicant requested the court to provide her with free legal assistance.
8. Between 10 September and 1 November 2000 the applicant could not appear before the court as she was undergoing inpatient examinations and treatment in several medical institutions; she informed the court of this.
9. Between 3 and 22 November 2000 the applicant’s six-year-old grandson was undergoing specialised treatment in the Okhtyrka Town Clinic for Skin and Venereal Diseases, to which there was restricted public access. The applicant was staying with him in the clinic in view of his young age.
10. On 6 November 2000 the judge of the Trostyanets Court who was dealing with the applicant’s case came to the clinic and informed the applicant that he was going to hold a hearing in the room where she was staying with her grandson. All other patients were asked to leave the room. The applicant objected to the holding of the hearing in the room at the clinic. She also requested the judge to withdraw from the case. Her objection and request were dismissed and she refused to participate in the hearing, but remained in the room. The hearing was held in the presence of a lawyer appointed by the judge to defend the applicant. There were also four witnesses heard in person, all of whom were employees of the company. No other persons were allowed to enter the room.
11. On the same day the court found the applicant guilty of petty theft and imposed a fine amounting to UAH 51. In its resolution the court explained that the hearing had been held in the clinic because of the applicant’s repeated failure to appear before it.
12. The applicant lodged requests for supervisory proceedings with various authorities, including prosecutors and courts, claiming, inter alia, that the proceedings before the Trostyanets Court had not been public and that she had not been able to exercise her rights to defence, or to present evidence, and other procedural rights. According to the applicant, she was not informed about the hearing in advance and she did not consent to be represented by the court-appointed lawyer, as the latter had allegedly represented the company in other proceedings to which she had been a party.
13. On 3 April 2001 the Deputy Prosecutor of the Sumy Region lodged a request with the Sumy Court for supervisory review (protest) of the applicant’s case. The prosecutor submitted that the Trostyanets Court had wrongly assessed the evidence in the case and had misapplied domestic law. The prosecutor also alleged that because the hearing had been held in the clinic the applicant had not been able to exercise her procedural rights.
14. On 9 April 2001 the President of the Sumy Court rejected the protest. As to the fact that the Trostyanets Court had held a hearing in the clinic, the President of the Regional Court found that the applicant’s procedural rights had not been violated, since during that hearing she had been represented by a lawyer and she had not informed the court of any intention to submit evidence or to question witnesses.
15. On 18 June 2001 the President of the Supreme Court reviewed the case and, relying on Articles 293 and 294 of the Code on Administrative Offences of 1984, partially changed the resolution of 6 November 2000. While upholding the first-instance court’s finding that the applicant was guilty of the offence with which she had been charged, the President found that:
“... the first-instance court had not taken into due account the requirements of Articles 33 and 34 [of the Code on Administrative Offences of 1984], in particular [it had failed to take into due account] the small value of the stolen objects ... the offender’s age, the actual absence of harm to the company, and that Ms Luchaninova was being brought to criminal liability for the first time.
In these circumstances, and because the offence was not a serious one, Ms Luchaninova should not be fined, but verbally reprimanded [for the offence]...”
16. No hearing was held either before the Sumy Court or the Supreme Court. Their decisions were based on an examination of the material from the case file and contained no reference to the applicant’s submissions in her appeals.
17. On 11 January 2001 the applicant was dismissed from her position of packer on the ground that she had stolen the company’s property.
18. The applicant instituted court proceedings challenging her dismissal and seeking compensation. The civil courts, relying on the resolution of 6 November 2000 by which the applicant had been found guilty of theft of the company’s property, rejected her claims as unsubstantiated. The final decision in these proceedings was taken by the Supreme Court on 25 February 2003.
19. According to Article 9 of the Code on Administrative Offences, illegal and culpable action or inactivity infringing public order, citizens’ property, rights or freedoms, or administrative procedures, for which administrative liability was envisaged, constituted an administrative offence. An offender would be held administratively liable for the offences set out in the Code, provided they did not lead to criminal liability.
20. Article 17 provided that a person acting in circumstances of extreme necessity or for reasons of necessary defence, or who was not aware of or able to control his or her actions, would not be liable for administrative offences.
21. Pursuant to Article 22, where the administrative offence was not a serious one, an offender could be discharged from administrative liability and verbally reprimanded. A resolution terminating the proceedings should be issued in that case (Article 284).
22. Article 23 defined an administrative sanction as a measure of administrative liability the aim of which was to compel a person who had committed an administrative offence to obey laws, respect the social order and refrain from reoffending, and to prevent the commission of offences by other persons.
23. Pursuant to Article 24, administrative sanctions included, inter alia, a note of warning (in writing), a fine, public or correctional work, or administrative arrest.
24. Article 33 provided that when deciding to impose an administrative sanction the nature of the offence, the personality of the offender, his or her material condition, and any circumstances mitigating or aggravating the offender’s liability had to be taken into account.
25. Article 34 listed a number of mitigating circumstances, which included sincere repentance on the part of the guilty person, voluntary compensation for any losses caused by the offence, and cases where the offender was a minor. The list was not exhaustive and the authority deciding on the case was free to recognise other circumstances as mitigating administrative liability.
26. Article 38 § 1 provided that an administrative sanction could be imposed within two months of the day on which an offence had been committed, or following the discovery that the offence was of a continuous nature.
27. Article 51 §1 of the Code envisaged the following sanctions for petty (in the amount of up to 51 UAH) theft of collective property, including property of private companies, or State-owned property: a fine in the amount of three to ten times the statutory non-taxable monthly income, or corrective work for a period of one to two months with a 20% salary deduction.
28. Pursuant to Article 249, cases concerning administrative offences were to be considered at a public hearing. For educational and preventive purposes, such cases could be considered at an offender’s place of work, study or residence.
29. Under Article 268 § 2, the presence of a defendant at hearings concerning certain administrative offences, including the one envisaged by Article 51, was obligatory. Should the defendant fail to appear before the court, he or she could be brought before it by the police.
30. According to Article 276 § 1, cases concerning administrative offences were generally to be considered at the location in which the offence had been committed.
31. Pursuant to Article 287 of the Code, the first-instance court’s resolution imposing an administrative sanction was final and could not be appealed against save in cases provided for by law.
32. According to Article 294, a court resolution concerning an administrative offence could be reviewed by the judge who had adopted it, upon an extraordinary appeal lodged by a prosecutor, or by the president of a higher court of his or her own motion. The powers of the judge (or president of a court) reviewing the case were determined by Article 293 § 1 and included the power (1) to approve the resolution without changes; (2) to quash the resolution and to remit the case for new examination; (3) to quash the resolution and close the case; and (4) to change the sanction within the limits envisaged by law. In the latter case a heavier penalty could not be imposed.
33. On 24 September 2008 the Parliament of Ukraine made changes to the Code whereby it introduced an appeal procedure in administrativeoffence cases. In particular, under the amended Articles 287 and 294 of the Code, the parties to the administrative-offence proceedings have the right to appeal against court resolutions in their cases within ten days of their delivery. Such an appeal is to be submitted through the court of first instance that adopted the contested resolution. That court must refer, within three days, the appeal or appeals together with the case file to the appeal court, which, in its turn, has twenty days to consider the case. Cases are dealt with by a judge of the appeal court in an open hearing. The judge has powers to reject the appeal, to quash the resolution and discontinue the proceedings or adopt a new resolution, or to change the resolution. The judge’s decision is final and not subject to any further appeal.
VIOLATED_ARTICLES: 6
P7
VIOLATED_PARAGRAPHS: 6-1
6-3
P7-2
VIOLATED_BULLETPOINTS: 6-3-b
6-3-c


ITEMID: 001-111838
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: CHAMBER
DATE: 2012
DOCNAME: CASE OF TAYLAN v. TURKEY
IMPORTANCE: 4
CONCLUSION: Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);Violation of Article 3 - Prohibition of torture (Article 3 - Effective investigation) (Procedural aspect)
JUDGES: András Sajó;Françoise Tulkens;Helen Keller;Isabelle Berro-Lefèvre;Paulo Pinto De Albuquerque
TEXT: 4. The applicant was born in 1968 and lives in Bursa.
5. On 8 March 2000 the applicant was arrested on suspicion of establishing a criminal organisation and committing fraud, threats and bribery. Approximately an hour after the arrest, he underwent a medical examination. The doctor who examined the applicant noted no sign of injury on his body.
6. On the same day, the applicant was taken to the Department of Organised Crime of the Bursa Directorate of Security, where he was allegedly subjected to ill-treatment. More specifically, he was stripped naked, beaten, subjected to electric shocks, hung by the arms, forced to sit naked on cold ground bare and hosed with water.
7. On 10 March 2000 the applicant’s wife lodged a complaint with the Bursa Public Prosecutor, claiming that her husband was being tortured.
8. Subsequently, on the same day the Bursa Public Prosecutor initiated an investigation into the matter.
9. On 12 March 2000, upon the request of the Bursa Directorate of Security, the Bursa Magistrates’ Court decided to prolong the applicant’s detention in police custody for three days.
10. On 14 March 2000 the applicant was heard by the Bursa Public Prosecutor. He was then transferred to the Bursa Branch of the Forensic Medicine Institute to be examined. The forensic medical report noted the applicant’s complaint as to his ill-treatment and indicated that he had two bruises measuring 8 x 3 cm and 8 x 1 cm on his left arm, a 6 x 5 cm light bruise in his right armpit, a blue-coloured bruise surrounding his left eye, several parallel scabbed lesions around his penis and a scratch measuring 2 x 1 cm below his right knee.
11. On the same day, following a request from the Department of Organised Crime, the applicant was examined once more by another doctor, who stated that the applicant had complained of headaches, dizziness and sensitivity at the tip of the big toe of his right foot. The report drawn up by that doctor indicated that the applicant’s general health condition was good and that he was conscious. It noted that he had bruises and hyperemia on his left and right sides, further hyperemia on both his arms, scabbed lesions of 2 x 3 cm on his penis (which would probably heal in three days) and a bruise around his eye (to heal in five days). The report concluded that the injuries would not keep the applicant from daily work.
12. On 20 March 2000 the Bursa Public Prosecutor requested the Forensic Medicine Institute to indicate, on the basis of its medical report dated 14 March 2000, whether the applicant was fit for work. On the same day, the Institute issued another report, reiterating the findings of the initial one and stating that the applicant would be unfit for routine activities for a period of three days.
13. Following the applicant’s detention on remand, the prison doctor transferred him to the Bursa State Hospital. On 22 March 2000 the applicant was diagnosed with acute lumbar strain and discopathy by a doctor at that hospital. The doctor also indicated that the applicant suffered from spondylosis and sciatica on his right side. The applicant was discharged from the hospital on 27 March 2000.
14. On 28 March 2000 the Bursa Public Prosecutor heard the applicant’s allegations of ill-treatment during his time in police custody. The applicant repeated before the Public Prosecutor that he had been stripped naked and subjected to electric shocks, hung by the arms, forced to sit on cold ground and hosed with cold water every one or two hours during the seven-day period of custody. He added that he had been blindfolded during his arrest and kept that way until he was brought before the Bursa Public Prosecutor for the first time.
15. The next day, on 29 March 2000, the Bursa Public Prosecutor requested the Bursa Directorate of Security to list the names of the police officers who had been on duty and who had had any contact with the applicant during the time he had been held at the Department of Organised Crime.
16. In the meantime, the issue was brought to the attention of the Ministry of Justice by one of the Members of Parliament representing Bursa.
17. Following this event and the coverage of the issue in a local newspaper, on 6 April 2000 the Bursa Public Prosecutor submitted an information document to the Directorate of Criminal Affairs attached to the Ministry of Justice, stating that the medical reports about the applicant corroborated the allegations of ill-treatment and that he had already commenced an investigation into the matter on 10 March 2000.
18. Subsequently, on 18 April 2000 the Bursa Directorate of Security informed the Bursa Public Prosecutor of the names of thirteen police officers on duty during the period when the alleged events took place.
19. On 26 April 2000 the Public Prosecutor filed an indictment with the Bursa Assize Court, accusing all thirteen police officers listed of torture, pursuant to Article 243 of the former Criminal Code (Law no. 765). He maintained that the complainants’ accounts of the events and witness statements confirmed the findings of the medical reports and concluded that the seven complainants, including the applicant, had been subjected to illtreatment in police custody.
20. At the first hearing on 29 June 2000, the Bursa Assize Court found that the investigation conducted by the Bursa Public Prosecutor had been inadequate. The court conducted a procedure whereby the complainants identified the police officers they had accused of torture. The applicant joined the proceedings as a civil party.
21. During the course of the ten hearings that followed, the court evaluated medical reports and documents from the Directorate of Security. It also heard statements from the accused police officers, the complainants and several witnesses.
22. On 27 March 2003 the Bursa Assize Court acquitted ten of the officers, finding that none of the complainants, except for the applicant, had been ill-treated and that those ten officers had not been involved in the applicant’s ill-treatment in police custody. The court found the other three officers, who had been identified by the applicant during the hearings, guilty as charged, having regard to the consistency of the applicant’s account of events with the medical reports. It sentenced the said three officers to ten months’ imprisonment and banned them from public service for a period of two months and fifteen days. The court finally deferred the execution of their sentences pursuant to Section 6 of Law No. 647 on the basis that the officers did not show any likelihood of reoffending.
23. On 14 June 2006 the Court of Cassation upheld the judgment of the first-instance court in so far as it concerned the acquittal. It quashed the part concerning the sentences, stating that the court should evaluate the case again in the light of the recent Criminal Code (Law no. 5237) and the Code of Criminal Procedure (Law no. 5271), both of which had entered into force in 2005.
24. On 1 February 2007 the Bursa Assize Court held that the former Criminal Code (Law no. 765) was more favourable for the accused police officers. The court once more sentenced them to ten months’ imprisonment and two months and fifteen days’ ban from public service. This time, the sentences were commuted into a fine of 900 Turkish liras for each officer and were suspended again.
25. The Court of Cassation quashed that judgment on 2 July 2008, maintaining that the first-instance court should have considered whether the pronouncement of the judgment could have been suspended for a period of five years (hükmün açıklanmasının geri bırakılması), pursuant to Article 231 of the recent Code on Criminal Procedure (Law no. 5271).
26. On 5 November 2008 the Bursa Assize Court held that the officers concerned had beaten and cursed the applicant and administered electroshocks on him in order to a extract confession. The court sentenced the police officers once again to ten months’ imprisonment and banned them from public service for two months and fifteen days, pursuant to Article 243 of the former Criminal Code (Law no. 765). Finally, it suspended the pronouncement of the judgment, having regard to the officers’ lack of criminal records and finding it unlikely that they would reoffend.
27. The applicant objected to that decision. However, on 28 November 2008 Bursa Assize Court rejected his objection. The final decision was served on the applicant on 15 December 2008.
28. On 12 May 2000 the Bursa Governorship assigned a chief officer to conduct a disciplinary investigation about the allegations of ill-treatment concerning thirteen police officers.
29. The investigation began on 22 May 2000 and ended on 3 August 2000, on which date the superintendent officer drew up a report (fezleke). On the basis of two video recordings of the applicant during a search and when his statements were being taken and the statements of the police officers, the witnesses and the complainants, including the applicant, the superintendent indicated that the applicant seemed to be in good health and that the light ecchymoses indicated in the medical reports could have just as well been produced by the applicant himself. He concluded therefore that the police officers’ acts did not require disciplinary action.
30. On 9 January 2002, having reiterated the findings of the chief officer, the Central Disciplinary Board of the Directorate of Security held that there was no ground to take disciplinary measures against the thirteen police officers.
31. A description of the relevant domestic law and practice concerning prosecution for ill-treatment in force at the material time can be found in Batı and Others v. Turkey, nos. 33097/96 and 57834/00, §§ 96-98, ECHR 2004-IV (extracts).
32. The suspension of the pronouncement of the judgment is regulated by Article 231 of the Code on Criminal Procedure (Law no. 5271), the relevant paragraphs of which read as follows:
...
(5) If the accused, who had been tried for the charges against him, was sentenced to a judicial fine or to imprisonment of less than two years, the court may decide to suspend the pronouncement of the judgment... The suspension of the pronouncement of the judgment entails that the judgment would not bear any legal consequences for the offender.
(6) Suspension of the pronouncement of the judgment may be decided provided that;
a) the offender has never been found guilty of a wilful offence,
b) the court is convinced, taking into account the offender’s personal traits and his behaviour during the proceedings, that there is little risk of any further offence being committed,
c) the damage caused to the victim or to the society is repaired by way of restitution or compensation.
(8) If the pronouncement of the judgment is suspended, the offender will be kept under supervision for the following five years.
(10) If the offender does not commit another wilful offence and abides by the obligations of the supervision order, the judgment, the pronouncement of which had been suspended, will be cancelled and the case discontinued.
(11) If the offender commits another wilful offence or acts in violation of the obligations of the supervision order, the court imposes the sentence. Nevertheless, the court may evaluate the offender’s situation and may decide that a certain part of the sentence, up to the half of the total sentence, will not be executed. If the conditions so permit, the court may as well suspend the execution of the imprisonment or commute it to other optional measures.
(12) An objection may be filed against the decision to suspend the pronouncement of the judgment.
VIOLATED_ARTICLES: 3