ITEMID: 001-67438
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: ADMISSIBILITY
DATE: 2004
DOCNAME: WIGNALL v. THE UNITED KINGDOM
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Matti Pellonpää;Nicolas Bratza
TEXT: The applicant, Mr Stephen Wignall, is a United Kingdom national, who was born in 1950 and is currently detained in HMP Whatton.
The facts of the case, as submitted by the parties, may be summarised as follows.
On 14 November 2000 the applicant pleaded guilty to four offences: two were of indecency with a child, one of abducting a child and one of indecent assault.
On 10 January 2001 he was sentenced to two and half years' imprisonment for the offence of indecent assault, the sentences for the other offences being of lesser periods of custody all running concurrently. The sentencing judge also imposed an extended-sentence pursuant to section 59 of the Crime and Disorder Act 1998, for a period of 7 years' extended licence. In his sentencing remarks the judge stated:
“Stephen Wignall, you have pleaded guilty to these 4 offences. They do vary, in my view, in their gravity, the really serious one, of course, is the last one, the indecent assault on young Dillon Cottee.
You say you were totally (inaudible) by alcohol at the time and you couldn't remember what you were doing, and, the letter you have written to me shows refreshing honesty. Drink has been your ruination. ... [S]omething has to be done, both to attend your alcoholism and your tendency, which seems to be increasing, to commit offences of this nature.”
On 9 November 2001 the applicant was released from custody on licence, having served half his sentence of two and half years. He was released to Haworth House Probation Hostel where he was under the supervision of Kirsten McCloy, a probation officer.
On 19 January 2002 the applicant was recalled to prison for breach of his licence provisions. The applicant received his recall pack, containing the reasons for his recall, 16 days after his recall. The reasons given were that he had breached his licence conditions by continuing to drink excessively; failing to attend a programme designed to address his behaviour, and by grabbing a female worker's arm and pulling her as well as generally making inappropriate comments of a sexual nature. The applicant challenged the bases for his recall stating that they were factually incorrect and instructed solicitors, Messrs Olliers, to represent him at the Parole Board hearing set for 29 July 2002, some six months after he was re-detained.
From 27 June 2002 to 15 July 2002 the applicant's solicitors contacted both the Sentence Enforcement Unit at the Prison Service and the Parole Board asking for disclosure; there was little response.
On 29 July 2002 the applicant's oral hearing in front of the Parole Board was deferred at his request because the statement of Anna Javed (the female whose arm the applicant is alleged to have grabbed) had been served on them that morning which not only mentioned a further witness to the assault, Peter Baines, but was also incorrect as to a material fact.
Between 29 July 2002 and 3 September 2002 (the date of the deferred hearing) requests for disclosure continued and, in August, produced the following statements: John Marsden, a probation officer; Barry Holt, a fellow sexual offender who witnessed the inappropriate comments; Pasky Cirono; Peter Baines; Helen Clayton, the hostel cook and a further statement from Anna Javed. Some of the statements were not signed or dated, and although a further witness Sandra came to light no evidence was forthcoming in response to requests. The applicant's solicitors asked that some witnesses be called to give oral evidence, including Sandra; in particular they asked that Barry Holt be called and that they be furnished with a list of his previous convictions. They received no response.
On 3 September 2002 an oral hearing took place in front of a Panel of the Parole Board. Marsden and Javed were present as witnesses with John Dewhirst standing-in for McCloy who was ill. The applicant decided to proceed nonetheless because he had already been detained for nine months.
On 5 September 2002 the Parole Board decided that the applicant should remain in custody. The decision was communicated to the applicant's solicitors on 24 September 2002. The reasons given for the decision were:
“2. The panel considered all of the documents before it together with the evidence of the probation hostel manager, Mr John Dewhirst, the evidence of Ms Anna Javed, Senior Probation Officer, Assistant Probation Hostel Manager Mr Marsden, the submissions by Mr Dickinson on behalf of the Secretary of State. You elected not to give evidence. ...
4. The panel was satisfied on the evidence before it that you have been reluctant or unable to comply fully with the conditions and restrictions placed on you in that, despite a formal warning and a final warning, you continued to drink excessively resulting on occasions in your admission to hospital and you have not complied with your licence conditions to address your alcohol-related offending behaviour.
The panel also accepts on a balance of probabilities that you did make comments of a sexual nature about a female hostel worker and that on 31 December 2001 you did grab the arm of Ann Javed and pulled her towards you in a manner which she reported as feeling like a sexual act to her. The panel regards these actions as highly inappropriate and underline a serious lack of insight and judgment. The panel also noted that you failed to return to your hostel on a number of occasions by the curfew time.
5. The panel had regard to reports of ongoing concerns at your lack of motivation to address your alcohol and sexual-related offending behaviour and also noted the entrenched nature of your alcohol abuse which you yourself are reported to have described as having consumed your life. The panel further noted your description that your abuse of alcohol is the root cause of all your problems including your sexually abusive behaviour. ...
6. It is stated that you were refused admission to an ASRO programme meeting because you arrived in an inebriated state. You yourself accepted that you had been drinking. ...
7. Your index offences, the breaches of your licence, your inability to avoid excessive alcohol consumption when back in the community, the inappropriate sexual comments and grabbing Anna Javed's arm, the need for you to start to undertake work on your alcohol and sexual-related offending behaviour all indicate to the panel that you continue to present considerable risk of harm to the public and especially young males and females. ...”
The applicant's solicitors instructed counsel concerning the possibility of seeking judicial review of the decision of the Parole Board. The applicant stated that counsel advised that there was no merit in any claim.
Where a defendant falls to be sentenced for a violent or sexual offence the courts have the power to impose what is termed an “extended-sentence” provided by section 58 of the Crime and Disorder Act 1998 (now re-enacted in identical terms by section 85 of the Powers of the Criminal Courts (Sentencing) Act 2000) which reads (so far as material) as follows:
“58. (1) This section applies where a court which proposes to impose a custodial sentence for a sexual or violent offence considers that the period (if any) for which the offender would, apart from this section, be subject to a licence would not be adequate for the purpose of preventing the commission by him of further offences and securing his rehabilitation.
(2) Subject to subsections (3) to (5) below, the court may pass on the offender an extended sentence, that is to say, a custodial sentence the term of which is equal to the aggregate of -
(a) the term of the custodial sentence that the court would have imposed if it had passed a custodial sentence otherwise than under this section (“the custodial term”); and
(b) a further period (“the extension period”) for which the offender is to be subject to a licence and which is of such length as the court considers necessary for the purpose mentioned in subsection(1) above.
...
(4) The extension period shall not exceed -
(a) ten years in the case of a sexual offence; and
(b) five years in the case of a violent offence.
(5) The term of an extended sentence passed in respect of an offence shall not exceed the maximum term permitted for that offence.”
Release and recall of prisoners on licence is governed by Part III of the Criminal Justice Act 1991:
– release of prisoners on licence (section 33);
– recall of offenders sentenced to extended-sentences (section 39).
Prisoners, once released on licence, are liable to recall by the Secretary of State, either with a recommendation by the Parole Board or, if it seems expedient in the public interest to recall the prisoner before such a recommendation is practicable, by the Secretary of State alone. The Parole Board and the Secretary of State will normally exercise this power of recall following a recommendation by the Probation Service responsible for the prisoner's supervision; it is not necessary for the prisoner to have committed an offence.
Review of the decision to recall is carried out by the Parole Board. Where a prisoner is recalled by the Secretary of State without a recommendation by the Parole Board, the Secretary of State must refer him to the Parole Board. A prisoner serving an extended-sentence has the right to require the Secretary of State to refer his case to the Parole Board upon recall: s. 44A of the Criminal Justice Act (inserted by section 59 of the Crime and Disorder Act 1998). Thenceforth the prisoner is entitled to annual reviews of detention.
The Parole Board is required to sit in a judicial capacity when hearing representations concerning recall decisions. An extended-sentence prisoner has no right to an oral hearing; the Parole Board retains discretion over the nature of the review they conduct. The common practice is that the representations will be considered on paper except where the Parole Board are of the opinion that there are crucial issues which require an oral hearing. Nevertheless the Prison Service advised the Sentence Advisory Panel that they intended to implement oral hearings in the case of extended-sentence prisoners, bearing in mind that an extended-sentence prisoner who is recalled faces a much longer period in custody than an ordinary determinate sentence prisoner.
On 19 December 2003, in The Queen (on the application of William Sim) v. The Parole Board and the Secretary of State for the Home Department (2003 EWCA Civ 1845) the Court of Appeal considered the recall of a prisoner who had been sentenced to an extended-sentence and recalled to prison after release on licence due to alleged breaches of his licence and inappropriate conduct involving alcohol. Lord Justice Keene held, firstly, that Article 5 § 4 applied to decisions relative to recall and continued detention:
“36. In short, when an offender is detained during the extension period of a section 85 sentence, such detention must be subject to review by a judicial body. No court has ordered his detention during that period: prima facie the sentencing court took the view that he could be dealt with in the community during that period. ... In cases of extended sentences under section 85, it is the executive which decides upon an offender's recall during the extension period, and because that detention has not been ordered by a court it must be supervised by a judicial body. Otherwise there is a danger of an arbitrary decision being made by the executive. As it happens it is so supervised, because section 44A of the 1991 Act so provides through the mechanism of the Parole Board ...”
Secondly, he found that it was inconsistent with the Convention to place any burden of proof as to lack of dangerousness on the prisoner and held that section 44A(4) of the Criminal Justice Act 1991 must be construed so that the Parole Board was obliged to conclude that it was no longer necessary to detain the recalled prisoner unless the Board were positively satisfied that the interests of the public require that he should be confined.
Thirdly, he concluded that the Parole Board was entitled to consider hearsay evidence. While Article 5 case-law referred to the necessity of oral hearings, it did not require that there should as a matter of course be cross-examination of witnesses to establish facts on which the Board relied. Fairness would sometimes require this, however, and the Board had to take account of the extent to which allegations are disputed, and bear in mind the extent to which they have been fully tested in cross-examination, when deciding what weight to give to these factors. In the circumstances of the instant case, he found that the lack of possibility to cross-examine witnesses on certain disputed aspects of the applicant's conduct was not unfair where the Board heard the applicant himself and the disputed matters were not key factors in their decision as to the risk which he presented.
Section 6(1) of the Act provides:
“It is unlawful for a public authority to act in a way which is incompatible with a Convention right.”


ITEMID: 001-96587
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: CHAMBER
DATE: 2010
DOCNAME: CASE OF KHAN A.W. v. THE UNITED KINGDOM
IMPORTANCE: 3
CONCLUSION: Violation of Art. 8 (in case of deportation)
JUDGES: David Thór Björgvinsson;Giovanni Bonello;Lech Garlicki;Mihai Poalelungi;Nicolas Bratza;Päivi Hirvelä
TEXT: 4. The facts of the case, as submitted by the parties, may be summarised as follows.
5. The applicant was born in 1975 in Pakistan. He entered the United Kingdom on 5 October 1978, when he was three years old, as a dependant of his father. He was granted indefinite leave to remain. He was educated in the United Kingdom and spent his formative years there.
6. On an unidentified date in 1993 he was found guilty of the theft of an insurance document. On an unidentified date in 1998 he was fined following a conviction for the use of a forged banker’s draft.
7. On 22 January 2003 he was convicted by a Crown Court of involvement in the importation of a class A controlled drug. The conviction related to the attempted importation of 2.5 kilograms of heroin with an estimated street value of GBP 210,470.00. The applicant pleaded guilty. In his sentencing remarks the judge noted that he was not the principal in the criminal activity but concluded that he was a “knowledgeable, able and willing assistant”. He was sentenced to seven years’ imprisonment but he was released on 3 April 2006 because of his good conduct in prison.
8. On 2 May 2006 the Secretary of State for the Home Department served on the applicant a notice of decision to make a deportation order pursuant to section 3 (5) of the Immigration Act 1971. The Secretary of State regarded as particularly serious those offences involving violence, sex, arson and drugs. Therefore, in view of the nature and severity of the applicant’s offence, the Secretary of State concluded that his removal from the United Kingdom would be necessary in a democratic society for the prevention of disorder and crime and for the protection of health and morals.
9. The applicant appealed to an Immigration Judge. He indicated that he had been in the United Kingdom since he was three years old and was not familiar with the culture in Pakistan. All of his immediate family were in the United Kingdom. His mother and his siblings were all in poor health and he was the main person who kept the house clean. His mother had diabetes and a heart condition. His siblings suffered from asthma and/or eczema. The applicant suffered from ulcerative colitis for which he received treatment in the United Kingdom. He therefore submitted that his removal would be disproportionate in the circumstances and would violate his rights under Article 8 of the Convention.
10. On 9 August 2006 an Immigration Judge dismissed the applicant’s appeal against the deportation order. He agreed that the applicant’s deportation would be conducive to the public good and that the crime he had committed was sufficiently serious to warrant deportation. With regard to the applicant’s family life in the United Kingdom, he found that it did not go beyond the natural ties of affection. In particular, he noted that the family had managed to cope without the applicant while he was in prison. He also found that the applicant would be able to adapt to life in Pakistan. He relied on the fact that he was an unemployed, single man of 28 years of age who, apart from having ulcerative colitis, was in good health. It was accepted that he could speak Punjabi. Moreover, the Immigration Judge observed that the medical evidence suggested that the applicant’s attendance at hospital for treatment of his ulcerative colitis had been inconsistent and he could therefore continue to attend hospital sporadically in Pakistan.
11. On 22 August 2006 the Asylum and Immigration Tribunal made no order on his application for reconsideration. A Senior Immigration Judge noted that the applicant had been sentenced to seven years’ imprisonment for his involvement in the importation of heroin and the Tribunal was entitled to find that this was a very serious matter and sufficiently serious of itself to warrant deportation.
12. On 8 November 2006 the High Court dismissed his application for reconsideration of the Immigration Judge’s decision as it did not disclose any arguable error of law and an appeal would have no real prospect of success.
13. On 4 August 2008 the applicant’s representative wrote to the Home Office, indicating that the applicant had been receiving death threats from one of his co-defendants in the drugs offence. The co-defendant was believed to be living in Pakistan. The applicant therefore submitted that if returned there was a real risk that his life would be in danger. He further submitted that in view of his mother’s ill health, if he were deported then in all likelihood he would not see her again.
14. On 11 September 2008 the Secretary of State for the Home Department advised the applicant that he would not consider the new representations as a fresh claim for asylum. In particular, the Secretary of State noted that the late asylum claim damaged the applicant’s credibility as the first threatening phone call was allegedly received in 2006.
15. In a letter dated 13 November 2008 the applicant advised the Court that his British girlfriend was pregnant and due to give birth to their child on 16 December 2008. He submitted a statement by his girlfriend, in which she confirmed that she was pregnant and stated that she had been in a relationship with the applicant since August 2005. On 16 April 2009 the applicant advised the Court that his girlfriend had given birth to a baby girl. He subsequently submitted a birth certificate, which named him as the father.
16. Section 3(5)(a) of the Immigration Act 1971 (as amended by the Immigration and Asylum Act 1999) provides that a person who is not a British citizen shall be liable to deportation from the United Kingdom if the Secretary of State for the Home Department deems his deportation to be conducive to the public good. Sections 82(1) and 84 of the Nationality, Immigration and Asylum Act 2002 provide for a right of appeal against this decision on the grounds, inter alia, that the decision is incompatible with the Convention.
17. Section 2 of the Human Rights Act 1998 provides that, in determining any question that arises in connection with a Convention right, courts and tribunals must take into account any case-law from this Court so far as, in the opinion of the court or tribunal, it is relevant to the proceedings in which that question has arisen.
18. The Rules relating to the revocation of a deportation order are contained in paragraphs 390 to 392 of the Immigration Rules HC 395 (as amended), supplemented by Chapter 13 of the Immigration Directorates Instructions (“IDIs”). There is no specific period after which revocation will be appropriate although Annex A to Chapter 13 of the IDIs gives broad guidelines on the length of time deportation orders should remain in force after removal. Cases which will normally be appropriate for revocation 3 years after deportation include those of overstayers and persons who failed to observe a condition attached to their leave, persons who obtained leave by deception, and family members deported under section 3(5)(b) of the Immigration Act 1971. With regard to criminal conviction cases, the normal course of action will be to grant an application for revocation where the decision to deport was founded on a criminal conviction which is now “spent” under section 7(3) of the Rehabilitation of Offenders Act 1974. Paragraph 391 of the Rules, however, indicates that in the case of an applicant with a serious criminal record continued exclusion for a long term of years will normally be the proper course. This is expanded on in Annex A to Chapter 13 of the IDIs, which indicates that revocation would not normally be appropriate until at least 10 years after departure for those convicted of serious offences such as violence against the person, sexual offences, burglary, robbery or theft, and other offences such as forgery and drug trafficking.
VIOLATED_ARTICLES: 8


ITEMID: 001-22474
LANGUAGEISOCODE: ENG
RESPONDENT: FIN;SWE
BRANCH: ADMISSIBILITY
DATE: 2002
DOCNAME: G. and A. v. FINLAND and SWEDEN
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Nicolas Bratza
TEXT: The first applicant is a Swedish and the second applicant a Finnish national. They were born in 1943 and 1950 respectively and are currently living in Åkersberga, Sweden.
The facts of the case, as submitted by the applicants, may be summarised as follows.
The applicants and their son I. (born in 1988) first lived in Sweden until 1993, when they moved to his grandmother in Luopioinen (Finland) after a public care order had been issued in Sweden. In both countries I. underwent intelligence and other tests on account of certain behavioural problems (indications of slight retardation and autism, increasing isolation and aggression). The Finnish authorities considered his symptoms to be of a psychological nature. The applicants considered them neurological but this contention could not be supported by any of the expert findings. Nonetheless, the applicants did not accept that I. be admitted for further examinations at a child psychiatric clinic.
In early November 1995 the applicant father was detained for a few days with a view to assessing whether he was in need of compulsory mental care on account of possible paranoia. On 7 November 1995, after the municipality had excluded I. from his regular school class due to his behavioural disturbances, the family returned to Sweden.
On 8 December 1995 the Social Welfare Board (sosiaalilautakunta, socialnämnden) of Luopioinen placed I. in public care under the Child Welfare Act (lastensuojelulaki, barnskyddslag 683/1983). According to the applicants, they were not heard prior to the making of the order. Their appeal was dismissed by the County Administrative Court (lääninoikeus, länsrätten) of Häme. On 29 November 1996 the Supreme Administrative Court (korkein hallinto-oikeus, högsta förvaltningsdomstolen) dismissed their further appeal. They had contended, inter alia, that the reports given by the authorities had contained incorrect information and that I.’s referral to the child psychiatric clinic, which had been signed by the doctor of the health care centre, had not been made available to them. Having considered the evidence adduced, the court found no indication that the information given by the authorities had been incorrect. The court concluded, in light of the evidence adduced, that the referral report had not been at the disposal of the Social Welfare Board either.
In May 1997, when consulting the case-file at the Supreme Administrative Court, the applicants allegedly discovered a number of false and misleading documents which had not been communicated to them in the proceedings concerning the initial care order. Their request to have the proceedings re-opened on this ground was dismissed by the Supreme Administrative Court on 16 October 1997. The court found no procedural error which could have had a significant effect on its earlier decision.
On 20 January 1997 Swedish police fetched I. and transferred him to the Finnish authorities pursuant to a Nordic treaty on the enforcement of care orders. His public care was initially implemented in a clinic for severely physically and mentally retarded children at Ylinen, where he underwent various intelligence and other ability tests. The conditions were allegedly harsh.
On 12 June 1997 the Social Welfare Board maintained I.’s public care, dismissing the applicants’ request to the contrary. Their appeal was dismissed on 4 December 1997 after an oral hearing before the County Administrative Court. Meanwhile, in August 1997 I. had been admitted to a child psychiatric clinic for further examinations. In February 1998 he was placed in a foster family at Rautajärvi, where the applicants allegedly had difficulties in gaining access to him. On 2 November 1999 the Supreme Administrative Court declined to examine their appeal in so far as concerning I.’s placement at Rautajärvi, that having been a temporary placement against which no appeal avenue had been open. The court likewise declined to examine their appeal against the access restriction as under domestic law this had been finally determined by the County Administrative Court. The court dismissed the other aspects of their appeal.
Meanwhile, on 11 June 1998 the Social Welfare Board decided to place I. in a children’s home in Lahti. In August 1998 he was placed in another foster family in Lahti in order to attend another school. The Board granted the applicants’ request to fly I. to the USA to be examined by specialists. The applicants’ appeals in the other respects were dismissed by the County Administrative Court on 3 March 1999. On 7 February 2001 the Supreme Administrative Court dismissed their further appeals concerning I.’s transfer to the children’s home and declined to examine the other aspects.
For financial reasons, the applicants had to postpone their trip with I. to the USA until 1999. On 10 June 1999, however, the Social Welfare Board withdrew its permission for I. to go on the trip after experts had considered that a trip at that moment would not be in his best interests. On 13 April 2000 the Board restricted the meetings between I. and the applicants to one per month and dismissed their new request to take I. on a trip to the USA. Their appeal was dismissed on 27 September 2000. On 7 February 2001 the Supreme Administrative Court declined to examine their further appeal, as no right to a further appeal existed.
A restriction on visits has allegedly been in force throughout I.’s public care, and was prolonged by the Social Welfare Board, most recently, in February 2001. Currently one monthly visit is allowed in the children’s home. In May 2001 the Social Welfare Board again refused the applicants permission to take I. on a trip to the USA.
The applicants’ appeal against the recent access restriction and the refusal to allow I. to travel to the USA was dismissed by the Administrative Court (hallinto-oikeus, förvaltningsdomstolen) on 1 March 2002.
According to the Government, the facts of the case are as follows.
By a letter of 29 November 1995, the Social Welfare Board of Luopionen had informed the applicants that, on 8 December 1995, it was going to consider a proposal to place I. in public care. The Board had recalled, inter alia:
“The problems relating to the growth and development of your son [...] have been discussed at several meetings which you have also attended. However, because you have not consented to the examinations and rehabilitation needed for the purpose of helping your son, public care [has been] found appropriate.”
In the same letter the Board had invited the applicants to comment on the proposed care order, either orally in the social welfare office on 8 December or in writing by 7 December 1995. Furthermore, they had been told that they would be able to consult the Board’s case-file during their possible visit on 8 December 1995. Receipt of the letter had been acknowledged by the applicants on 2 December 1995 in Sweden, where they had lived since 7 November.
The applicants had not taken any contact with the Social Welfare Board which had issued the proposed care order and referred the matter for approval by the County Administrative Court. After the applicants had appealed the court had invited them to comment on the Social Welfare Board’s rejoinder with annexes (i.e. a decision of the County Administrative Court (kammarrätten) of Stockholm of 8 April 1993 and a summary of the measures taken by the Finnish authorities from 1993 onwards). The applicants had submitted their comments on 20 February 1996 and in subsequent letters.
After the applicants had appealed against the County Administrative Court’s decision of 13 May 1996 the Supreme Administrative Court had afforded them an opportunity to comment in writing on the Social Welfare Board’s rejoinder. The Board had noted, inter alia, that its decision had been based on several reports and opinions, beginning with the documents relating to the public care order issued in Sweden in 1993. The court’s letter had been received by the applicants on 31 August 1996 and the second applicant had submitted written comments.
In their comments in reply to the factual information provided by the Government the applicants contend that four specific reports considered by the Social Welfare Board on 8 December 1995 (and listed in its decision) had not been made available to them until May 1997, i.e. after the initial care proceedings had ended. The further report of the Finnish social welfare authorities dated 12 February 1996 had been made available to them only in the Convention proceedings. In that document the official had recounted the Finnish social authorities’ suspicion in 1994 that I. had been sexually abused in the family, which the applicants deny.
The relevant legislation is outlined in the Court’s judgment in K. and T. v. Finland ([GC], no. 25702/94, §§ 94-136, ECHR 2001).


ITEMID: 001-88063
LANGUAGEISOCODE: ENG
RESPONDENT: MDA
BRANCH: CHAMBER
DATE: 2008
DOCNAME: FLUX v. MOLDOVA (No. 6)
IMPORTANCE: 3
CONCLUSION: No violation of Art. 10
JUDGES: David Thór Björgvinsson;Giovanni Bonello;Ján Šikuta;Lech Garlicki;Mihai Poalelungi;Päivi Hirvelä
TEXT: 5. On 4 February 2003 the applicant newspaper published an article about the Spiru Haret High School. The article was not based on investigations by the newspaper’s reporters but merely quoted an anonymous letter it had allegedly received from a group of students’ parents. The letter criticised the situation in the school, in particular, overcrowding and a lack of proper facilities for children. It alleged that the school’s principal used the school’s funds for inappropriate purposes, spending money on decorating his office and building a separate bathroom for himself, launching a school newspaper which only published articles related to relationships and sex. It also alleged he had received bribes of 200-500 US dollars for enrolling children in the school and that the authors of the letter had been afraid to sign for fear of reprisal against their children.
6. On an unspecified date the principal and the editorial staff of the school newspaper asked Flux to publish a reply to the article of 4 February 2003; however, their request was rejected. They finally managed to have their reply published in another newspaper called the Jurnal de Chisinău.
7. In their reply they expressed dissatisfaction with the fact that Flux had failed to seek their side of the story before publishing an anonymous letter, and said that the manner in which Flux had acted had been contrary to journalistic ethics. In their view, the fact that Flux had published an anonymous letter without even visiting the school or conducting any form of investigation showed that its aim was purely sensationalism. It was true that the school was overcrowded, but that was a result of its popularity. Had the journalist from Flux visited the school, she would have noted that it was not only the principal’s office that had been renovated, but many other parts of the school. As to the issue of bribes, it was far too serious an accusation to be published without any supporting evidence. The editorial staff of the school newspaper stressed that the anonymous letter had misinformed the readers by only citing certain articles and overlooking many others concerning such matters as sport, cultural events and school events.
8. On 14 February 2003 the applicant newspaper reacted to the reply published in the Jurnal de Chisinău by publishing a new article which stated¸ inter alia:
“The first people to visit us, were, to our surprise, not the [principal], but the ‘creation team’ of the school newspaper... headed by the teacher M.C. They had prepared a so called ‘reply’ to the article [of 4 February 2003]. In reality a scrap of paper attacking our editorial staff, full of ironic comments such as ‘Flux, the newspaper which pretends to write the truth’. We have nothing against this school newspaper, which started to give us marks for behaviour. We tried to explain to our as yet too young colleagues, in a friendly way, of course, that since Flux had pledged to publish the [anonymous] letter in full, it could not change its content. We were merely reproducing a point of view which had the right to exist. We simply did not care about other details, such as the quality of the school newspaper or the IQ of its editors.
Maybe the ‘reply’ from the editors of the Spiru Haret newspaper, would have been published by Flux if its tone had been measured and shown at least a little respect for a newspaper [Flux] from which their school newspaper still has a lot to learn. Not to mention that the ‘editors’ who came to our office were arrogant and spoke down to us from a great height. We had the impression that these ‘editors’ were from the New York Times or at least from Le Monde. Incidentally, we later found out that the chief of the ‘editors’, M.C. is the partner of the school principal, but we readily overlooked this delicate detail.
...
When we agreed to publish the letter from the group of parents, we were not intent on sensationalism, as was insinuated by the principal in his reply. Everybody knows that the situation in our schools is far from satisfactory. Nobody is surprised by this anymore. Spiru Haret is not the first school we have written about, nor will it be the last....
We published the letter in the hope that the principal would descend from his lofty perch and understand that there also are dissatisfied parents. Many people complained to us that the principal was a spiteful person. Just to prove the point, after the publication of our article, he convened a meeting of the parents’ association at which he demanded the names of the persons who had written the letter. He also demanded that the association write a letter critical of our newspaper....
Obviously, the most serious problem is that of the bribes, which, according to the cynics among us, are not causing the principal any loss of sleep. We have been accused of libelling him without any proof. However, it was not we who accused him, but the parents. And we are sure that we will be able to bring witnesses to the court. We will find people willing to overcome their fear...
We will now refer to a person who called us [after the publication of the article of 4 February 2003]. His name is V.L. and he is a former university colleague of the principal of Spiru Haret. Before moving to Chişinău, he lived in Ungheni. After coming to Chişinău, he had to find a school for his daughter. He approached his former colleague, who hinted that he had to pay not only with fond memories of their student years but also with cash. V.L. refused and told the principal that he had no money. After a lengthy period in which he was fobbed off with promises, V.L. gave up the idea of enrolling his daughter in Spiru Haret.
‘The official reason given by the principal was that we lived in another part of the city. I was surprised to learn that a friend of my daughter, who lived in the same neighbourhood, had told my daughter that her father had paid the principal three hundred dollars. Now she is a student at Spiru Haret while my daughter is at another school, where no money is required’, said V.L....”
9. On an unspecified date the principal brought civil proceedings for defamation against the applicant newspaper, arguing that many statements in the above article were defamatory of him.
10. During the proceedings the applicant newspaper called three witnesses, including V.L., who testified that bribes were taken for the enrolment of children in Spiru Haret.
11. On 18 September 2003 the Buiucani District Court gave judgment for the principal, after finding the allegations of bribery to be untrue and defamatory. It concluded that the statements of the three witnesses called by the applicant newspaper were not sufficient to overturn the presumption of innocence enjoyed by the principal. It ordered the newspaper to issue an apology within fifteen days and to pay the principal 1,350 Moldovan Lei (MDL) (the equivalent of 88 euros (EUR) at the time). As to the witnesses called by the newspaper, it stated:
“The court has no reason not to believe the witnesses V.L., C.G. and M.N. However, in order to be able to declare publicly that someone is accepting bribes, there is a need for a criminal-court decision finding that person guilty of bribery. Since there is no such finding against [the principal], he cannot be accused of bribery.”
12. Both the applicant newspaper and the principal appealed against this judgment. The applicant newspaper contested the finding that the statement concerning bribery was defamatory, arguing that it had not directly accused the principal of bribe-taking, but had brought to the attention of the public the well-known phenomenon of bribe-taking in schools. The principal claimed that the statement concerning bribery was not the only defamatory statement in the article. On 23 December 2003 both appeals were dismissed by the Chişinău Court of Appeal, which found the applicant newspaper’s submissions ill-founded. As to the principal’s appeal, it stated that being a public figure, he had to be more tolerant to criticism.
13. The applicant newspaper lodged an appeal on points of law with the Supreme Court of Justice, arguing again, inter alia, that the purpose of the article was not to accuse the principal of taking bribes but simply to make public the rumours to that effect. It submitted that the circulation of such rumours had been confirmed by witnesses. Penalising the newspaper for the lack of a criminal court judgment against the principal was disproportionate and unnecessary in a democratic society. Moreover, the newspaper had simply disseminated statements made by third parties.
14. On 31 March 2004 the Supreme Court of Justice dismissed its appeal.
15. The relevant provisions of the Civil Code in force at the material time read:
“(1) Any natural or legal person shall be entitled to apply to the courts to seek the withdrawal of statements which are damaging to his or her honour and dignity if the person who made such statements cannot prove that they are true.
(2) Where such information was made public by a media body, the court shall compel the publishing office of the media body to publish, not later than 15 days after the entry into force of the judicial decision, a withdrawal of the statements in the same column, on the same page or in the same programme or series of broadcasts.”
“(1) Damage caused to a person as a result of the dissemination of statements which do not correspond to the truth and are damaging to his or her honour or dignity shall be compensated by the natural of legal person responsible.
(2) The amount of the award shall be determined by the court in each case as an amount equal to between 75 and 200 months’ minimum wages if the information was disseminated by a legal person and between 10 and 100 months’ minimum wages if it was disseminated by a natural person.”
NON_VIOLATED_ARTICLES: 10


ITEMID: 001-22927
LANGUAGEISOCODE: ENG
RESPONDENT: DEU
BRANCH: ADMISSIBILITY
DATE: 2001
DOCNAME: N.F.B. v. GERMANY
IMPORTANCE: 1
CONCLUSION: Inadmissible
TEXT: The applicant, Mr N. F. B., is a German national, born in 1943 and living in Eberberg. He was represented before the Court by Mr Reimer, a lawyer practising in Velbert (Germany).
The facts of the case, as submitted by the parties, may be summarised as follows.
On 25 February 1989 in the course of a judicial investigation opened in respect of the applicant, who was suspected of having sexually abused his daughter Miss M., the investigating judge at the Wuppertal District Court (Amtsgericht) took evidence from Miss M. in the presence of the applicant’s lawyer for several hours. In the course of that interview, the applicant’s lawyer asked Miss M. numerous questions.
In an indictment (Anklageschrift) of 14 August 1989 the Wuppertal public prosecutor’s department committed the applicant for trial before the Wuppertal Regional Court (Landgericht) for acts of sexual abuse committed from early 1972 to November 1987 on his daughter, who was born in 1967. The indictment mentioned seven witnesses including an expert.
On 28 October 1991 the Wuppertal Regional Court issued a warrant for the applicant’s arrest (Haftbefehl) on the same grounds and he was taken into custody in Wuppertal Prison that same day.
In a judgment of 3 February 1992 after a fifteen-day trial the Wuppertal Regional Court sentenced the applicant to eight years’ imprisonment for at least 80 counts of indecently assaulting a child (sexueller Missbrauch von einem Kind), at least 200 counts of indecent assault on a child by a person having authority over her (sexueller Missbrauch von einem Schutzbefohlenen), and at least 150 counts of having sexual relations within the prohibited degrees of consanguinity (Beischlaf zwischen Verwandten).
During the trial the Court heard evidence from Miss M., and the applicant’s lawyer was allowed to cross-examine her.
On 10 June 1994, on an appeal by the applicant, the Federal Court of Justice (Bundesgerichtshof) set aside the above judgment on the ground that proceedings had been time-barred in respect of some of the offences, which could not be regarded as continuing ones. It remitted the case to another criminal division of the Wuppertal Regional Court.
On 24 October 1994 and 11 January 1995 the Wuppertal public prosecutor’s office provided particulars and supporting evidence for each of the charges against the applicant. The indictments mentioned twenty-five witnesses, fifteen or so of whom were psychologists and doctors cited as experts.
On 16 January 1995 the prosecuting authorities withdrew their indictment of 24 October 1994.
In a decision of 6 March 1995 the Wuppertal Regional Court stated that the current proceedings related solely to the charges contained in the indictment of 11 January 1995.
In a judgment of 6 July 1995, after a 29-day trial, the fifteenth grand criminal chamber of the Wuppertal Regional Court sentenced the applicant to seven years’ imprisonment for three counts of indecently assaulting a child combined with indecent assault on a child by a person having authority over her and having sexual relations within the prohibited degrees, four counts of indecent assault on a child by a person having authority over her, three of which involved sexual relations within the prohibited degrees, and seven counts of having sexual relations within the prohibited degrees, in accordance with Articles 173, 174 and 176 of the Criminal Code (Strafgesetzbuch).
During the trial the Court heard numerous witnesses and experts, including doctors and psychologists who had treated Miss M., who had required constant psychotherapy, had had several spells in a private clinic and had twice attempted suicide.
The Court also heard the applicant and Miss M., taking evidence from the latter for three consecutive days during which the applicant was not present but his lawyer was, although the lawyer was not able to question her. When the applicant’s lawyer and the applicant himself announced that they intended to ask Miss M. numerous questions, she stated that she was no longer in a fit state to be questioned owing to her poor state of health, as confirmed by a medical certificate. She relied on her right to refuse to give evidence (Zeugnisverweigerungsrecht) under Article 52 §§ 1 and 3 of the Code of Criminal Procedure (Strafprozessordnung – see Relevant domestic law and practice below).
The applicant’s lawyer then applied for the Regional Court to order the discontinuance of the proceedings (Einstellung des Verfahrens) on the ground that his not being able to question Miss M. at the trial constituted a breach of Article 240 § 2 of the Code of Criminal Procedure (see Relevant domestic law and practice below) and Article 6 §§ 1 and 3 (d) of the Convention. The Regional Court rejected his application.
In its judgment the Regional Court described in detail the sexual abuse to which Miss M. had been repeatedly subjected by the applicant since the age of four.
The Court then conducted a highly detailed analysis of the credibility of the evidence taken at the hearing, particularly the statements by the applicant and Miss M. Among other things, it thoroughly examined Miss M.’s conduct and motives, noting the consistency of her statements, which were supported by a large body of evidence; it also refuted the applicant’s arguments that her therapists had had a harmful influence.
The Regional Court pointed out (on p. 68 of the judgment) that on 25 February 1989 Miss M. had been interviewed for several hours by the investigating judge at the Wuppertal District Court. In the course of that interview she had had to answer numerous questions from the judge and the applicant’s lawyer. The Court noted what an ordeal it had been for Miss M. to describe in detail the abuse to which she had been subjected and how that had revived strong feelings of inner turmoil because she had had to relive the abuse again and again as she described it (“wühlten M. innerlich erneut sehr auf, weil sie immer wieder während der Schilderungen ihren Missbrauch durchleben musste”).
The Court emphasised once more how difficult it was for Miss M. to describe the traumatic events she had undergone and noted that “every time, including the last occasion at the trial, it was only through a superhuman effort of will that she [had been] able to describe painful details and memories” (“die für sie schmerzlichen Details and Erinnerungen vermochte sie stets, zuletzt in der Hauptverhandlung, nur unter grösster innerer Überwindung mitzuteilen”).
The Regional Court added:
“In the light of her psychosomatic illness, as described above, and the serious post-traumatic effects she has suffered, it is understandable that Miss M. was not in a state to relive the events of her abuse during the trial without being affected. During her evidence the court was able to observe just how very sensitive the witness still is today when she has to describe details of her sexual abuse, which she is still not in a position to do without suffering harm. This was particularly so when she had to give details about her own feelings during the sexual assaults by the defendant because at those points she was almost overwhelmed by the strength of the feelings of guilt and shame that she still experiences today. In that connection the Court was not able to discern any of the artfulness or glibness attributed to her by the defence.”
(“Vor dem Hintergrund ihrer oben geschilderten psychosomatischen Erkrankung und den entsprechenden gravierenden Folgeerscheinungen wird auch erklärlich, dass M. letzlich nicht in der Lage war, in der Hauptverhandlung erneut ihre Missbrauchsgeschichte folgenlos zu durchleben. Die Kammer vermochte anlässlich ihrer Vernehmung einen Eindruck zu gewinnen, wie empfindsam die Zeugin auch heute noch reagiert, wenn sie Einzelheiten über den sexuellen Missbrauch schildern soll, wozu sie immer noch nicht ohne Beeinträchtigung in der Lage ist. Als besonders gravierend stellte sich der Eingriff in sie dar, wenn sie Angaben zu eigenen Empfindungen während der sexuellen Übergriffe des Angeklagten tätigen sollte, da sie in diesen Momenten von der Stärke ihrer Schuldgefühle und der Scham, die sie wegen ihrer Gefühle auch heute noch empfindet, nahezu erdrückt wurde. Die von der Verteidigung der Zeugin attestierte Verschlagenheit und Glattzüngigkeit, vermochet die Kammer insoweit nicht zu erkennen”).
The Regional Court held that the applicant had acted deliberately and that he was aware of his guilt because he had constantly attempted, by means of threats, to enjoin his daughter to say nothing.
By way of extenuating circumstances, the Court took account of the fact that the applicant had had no previous convictions, that he had worked hard in his job to provide for his family and that the criminal proceedings and his pre-trial detention had lasted a long time.
As aggravating circumstances, on the other hand, the Court had regard to the length and the nature of the abuse to which the applicant had subjected his daughter since the age of four and the “high intensity of each separate instance” (die hohe Intensität der Einzelfälle) which had steadily increased over the years. The Court emphasised that the applicant had shamelessly (in schamloser Weise) and brutally (grob) exploited his daughter’s natural desire for paternal affection and transformed these abuses into a commonplace event. He had degraded his daughter to the level of a sex object constantly at his disposal, thus inhibiting her normal sexual development. As regards the various offences, the Court noted that the applicant had abused his daughter pitilessly and selfishly, forcing her into particularly humiliating sexual practices to keep her submissive while she tried in vain to escape from his hold over her through bulimia and vomiting crises. Despite his daughter’s subsequent attempts to distance herself from him and live an independent life, he had continued to pursue her relentlessly and had even involved her in relations that he and his wife had had with a couple who engaged in partner-swapping.
The Regional Court decided on the length of the applicant’s sentence in the light of all of the above circumstances and the serious traumas experienced by Miss M. – for whom psychological assistance will remain essential for an indefinite period.
On 17 July 1996, on appeal by the applicant, the Federal Court of Justice varied the verdict, finding the applicant guilty of three counts of indecently assaulting a child, three counts of indecent assault on a child by a person having authority over her, including sexual relations within the prohibited degrees, and seven counts of having sexual relations within the prohibited degrees, but did not alter the length of the sentence. The Federal Court also rejected the applicant’s application for the proceedings to be discontinued for a procedural defect resulting from a breach of Article 266 § 1 of the Code of Criminal Procedure, on the ground that, in the indictment of 11 January 1995, containing the charges on which the applicant stood trial, the prosecution had sufficiently substantiated the facts referred to in its indictment of 14 August 1989, and that the applicant’s consent would only have been required if the prosecution had brought additional charges at his trial.
On 12 November 1996 the Federal Constitutional Court (Bundesverfassungsgericht), sitting as a three-member panel, decided to dismiss the applicant’s appeal.
The first sentence of Article 240 § 2 of the Code of Criminal Procedure states that the president of the court must authorise the prosecution, the defendant and the defendant’s lawyer to examine respectively the defendant, the witnesses and the experts.
Under the second and third sentences of Article 247 of the Code of Criminal Procedure, the court may hear witnesses in the absence of the defendant if there is a serious risk of grave detriment to the witness’s health (“wenn die dringende Gefahr eines schwerwiegenden Nachteils für [die] Gesundheit [des Zeugen] besteht”). As soon as the defendant is present at the hearing again, the president must inform the defendant of the main content of the evidence given in his absence (“von dem wesentlichen Inhalt dessen zu unterrichten, was während seiner Abwesenheit ausgesagt oder sonst verhandelt worden ist”).
Article 52 § 1 of the Code of Criminal Procedure authorises the defendant’s relations in the direct line, inter alios, to refuse to give evidence.
The second sentence of Article 52 § 3 provides that persons who have waived their right to refuse to give evidence may change their mind while in the witness stand and exercise this right again.
According to the established case-law of the Federal Court of Justice, this restriction of the rights of the defence must be taken into account by the relevant court when assessing the evidence. Thus it should be considered, in particular, to what extent the witness’s statements are corroborated or called into question by the other evidence and how significant they are.


ITEMID: 001-105777
LANGUAGEISOCODE: ENG
RESPONDENT: DEU
BRANCH: CHAMBER
DATE: 2011
DOCNAME: CASE OF HEINISCH v. GERMANY
IMPORTANCE: 1
CONCLUSION: Violation of Art. 10;Remainder inadmissible;Non-pecuniary damage - award;Pecuniary damage - claim dismissed
JUDGES: Angelika Nußberger;Dean Spielmann;Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger
TEXT: 6. The applicant was born in 1961 and lives in Berlin. She had been working as a geriatric nurse for Vivantes Netzwerk für Gesundheit GmbH (hereinafter referred to as “Vivantes”), a limited liability company specialising in health care, geriatrics and assistance to the elderly which is majority-owned by the Land of Berlin, from 16 September 2000 until 9 February 2005, when she was dismissed.
7. Since January 2002 the applicant had been working in a geriatric nursing home operated by Vivantes, where the patients were partly bedridden, disorientated, and generally dependent on special assistance. In 2002 the Medical Review Board of the Health Insurance Fund (Medizinischer Dienst der Krankenkassen, hereinafter referred to as “MDK”) established serious shortcomings in the daily care provided there, caused by a shortage of staff.
8. Between 24 January 2003 and 19 October 2004 the applicant and her colleagues regularly indicated to the management that they were overburdened on account of staff shortages and therefore had difficulties carrying out their duties. They specified the deficiencies in the care provided and also mentioned that services were not properly documented. In a notification dated 18 May 2003 the applicant further mentioned that she was no longer in a position to assume responsibility for the shortcomings in care resulting from staff shortages. From 19 May 2003 onwards the applicant repeatedly fell ill and was sometimes unable to work. One medical certificate stated that this was the result of overworking.
9. In November 2003, following a further inspection, the MDK, established serious shortcomings in the care provided, on grounds of, inter alia, staff shortages, inadequate standards and unsatisfactory care as well as inadequate documentation of care, and accordingly threatened to terminate the service agreement with the applicant’s employer. Subsequently, restructuring took place.
10. Following a number of further notifications to her superiors explaining the situation, in particular in October 2004, the applicant again fell ill and finally consulted a lawyer.
11. In a letter dated 9 November 2004 the applicant’s legal counsel wrote to the Vivantes management. He pointed out that, on account of the lack of staff, the patients’ basic hygienic care (ausreichende hygienische Grundversorgung) could no longer be guaranteed. He also requested the management to specify how they intended to avoid criminal responsibility – also for the staff – and how they intended to ensure that the patients could be properly cared for. He pointed out to the management that only then could they avoid a criminal complaint or a public discussion of the situation, with all its negative implications. He gave the management until 22 November 2004 to respond.
12. On 18 November 2004 the MDK again visited the premises without prior notice. It was subsequently in dispute between the parties whether the MDK had in fact established that the staffing situation, although difficult, was not critical.
13. On 22 November 2004 the management rejected the applicant’s accusations.
14. On 7 December 2004 the applicant’s lawyer lodged a criminal complaint against Vivantes for aggravated fraud and its relevant legal aspects. He specified that the complaint also served the purpose of avoiding criminal responsibility for the applicant herself following her numerous complaints to Vivantes which had not brought any improvements in the care provided. It was argued that, owing to the lack of staff and the inadequate standards, her employer knowingly failed to provide the high-quality care announced in its advertisements and hence did not provide the services paid for and was putting the patients at risk. He also alleged that Vivantes had systematically tried to cover up the existing problems and urged staff to falsify records of services rendered. The applicant’s complaint referred to the report produced by the MDK following their visit in 2003, and stated that she would be willing to attest to the bad conditions at the nursing home. It further included statements by the applicant concerning overworking and referred to minutes of a team meeting advising Vivantes staff, in order to avoid disciplinary consequences, not to disclose staff shortages and time pressures to patients and their relatives. The criminal complaint included the following passage:
“The company Vivantes GmbH, which has financial difficulties and is aware of this, has deceived family members, because the care provided does not in any way correspond to or justify the fees paid. Vivantes GmbH is therefore enriching itself and accepts the inadequacy of the medical and hygienic care. ... This demonstrates how it systematically – including by intimidating staff – tries to cover up existing problems. Staff are requested to draw up records of care provided which do not reflect the way such care was actually given ... Similar problems exist in other institutions; therefore considerable damage is at issue.”
15. On 10 December 2004 the applicant’s lawyer also contacted the board of directors of the applicant’s employer and stated that there was a shortage of staff at the nursing home and that it failed to meet hygiene standards.
16. On 5 January 2005 the Berlin Public Prosecutor’s Office discontinued the preliminary investigations against Vivantes pursuant to Article 170 § 2 of the Code of Criminal Procedure (Strafprozessordnung - see “Relevant domestic law and practice” below).
17. By a letter dated 19 January 2005 the nursing home dismissed the applicant, on account of her repeated illness, with effect from 31 March 2005. The applicant challenged the dismissal before the Berlin Labour Court (file No. 35 Ca 3077/05).
18. Subsequently, the applicant contacted friends and also her trade union, Vereinte Dienstleistungsgewerkschaft (ver.di). On 27 January 2005 they issued a leaflet headed as follows:
“Vivantes wants to intimidate colleagues!!
Not with us!
Immediate revocation of the dismissal of our colleague Brigitte who used to work at Vivantes Forum for Senior Citizens
Call for the foundation of a non-party solidarity group”
The leaflet also stated that the applicant had lodged a criminal complaint but that this had not resulted in a criminal investigation and that she had been dismissed on account of her illness. It further stated as follows:
“Let’s answer back at last ... The insanity that private operators, together with the Berlin SPD/PDS senate, are destroying our manpower out of greed ... Vivantes flagrantly takes advantage of our social commitment. ... This is more than just a dismissal! This is a political disciplinary measure taken in order to gag employees ...”
19. On 31 January 2005 the applicant sent one such leaflet by fax to the residential home, where it was distributed. Only then did Vivantes become aware of the applicant’s criminal complaint.
20. On 1 February 2005 the applicant’s employer gave her the opportunity to make a statement regarding the leaflet; the applicant declined to do so, however. On 4 February 2005 Vivantes informed the works council that it intended to dismiss the applicant without notice. On 8 February 2005 the works council declared that it would not agree to the applicant’s dismissal.
21. On 9 February 2005 the applicant’s employer dismissed her without notice or, alternatively, by 31 March 2005 on suspicion of having initiated the production and dissemination of the leaflet.
22. A new leaflet was subsequently issued reporting on this dismissal; in addition, the situation was reported in a TV programme and in two articles published in different newspapers.
23. On 21 February 2005 the preliminary investigation proceedings against Vivantes were resumed by the Berlin Public Prosecutor’s Office at the applicant’s request.
24. On 25 February 2005 the applicant lodged a claim with the Berlin Labour Court (file no. 39 Ca 4775/05) against her dismissal without notice of 9 February 2005.
25. On 25 April 2005 the applicant’s former employer issued a further notice of dismissal. The applicant’s claim of 25 February 2005 was then extended accordingly.
26. On 12 May 2005 the applicant was heard as a witness by the public prosecution in preliminary investigation proceedings against Vivantes. The preliminary proceedings were again discontinued on 26 May 2005 pursuant to Article 170 § 2 of the Code of Criminal Procedure.
27. By a judgment of 3 August 2005 (file No. 39 Ca 4775/05) the Berlin Labour Court (Arbeitsgericht) established that the employment contract had not been terminated by the dismissal of 9 February 2005 since this could not be justified under Article 626 of the German Civil Code (Bürgerliches Gesetzbuch) or section 1(1) of the Unfair Dismissal Act (Kündigungsschutzgesetz - see “Relevant domestic law and practice” below). In this connection it found that the leaflet – the content of which was attributable to the applicant, since she had transmitted it to her employer without any further declaration – was covered by her right to freedom of expression and did not amount to a breach of her duties under the employment contract. Although it was polemical, it had been based on objective grounds and had not upset the “working climate” in the nursing home.
28. Following a hearing on 28 March 2006, the Berlin Labour Court of Appeal (Landesarbeitsgericht), by a judgment of the same date, quashed the judgment of the Labour Court and found that the dismissal of 9 February 2005 had been lawful as the applicant’s criminal complaint had provided a “compelling reason” for the termination of the employment relationship without notice under Article 626 § 1 of the Civil Code and had made continuation of the employment relationship unacceptable. It found that the applicant had frivolously based the criminal complaint on facts that she could not prove in the course of the proceedings since, in particular, merely referring to the shortage of staff was not sufficient to enable her to allege fraud, and since she had failed to further specify the alleged instruction to falsify records, which was also evidenced by the fact that the public prosecutor had not opened an investigation. The Labour Court of Appeal further held that the criminal complaint amounted to a disproportionate reaction to the denial by Vivantes of any staff shortages, since the applicant had never attempted to have her allegation of fraud examined internally and since, moreover, she had intended to put undue pressure on her employer by provoking a public discussion of the issue. It also pointed out that the nursing home was under the supervision of the MDK, which had carried out a further inspection there on 18 November 2004, shortly before the applicant had lodged her complaint. She could have awaited the outcome of that visit and therefore her criminal complaint had been unnecessary. The court, referring also to the principles established by the Federal Labour Court in its relevant case-law (see “Relevant domestic law and practice” below), concluded that the applicant had not been acting within her constitutional rights and had breached her duty of loyalty towards her employer.
29. On 6 June 2007 the Federal Labour Court (Bundesarbeitsgericht) dismissed an appeal by the applicant against the decision refusing her leave to appeal on points of law.
30. By a decision of 6 December 2007, which was served on the applicant on 12 December 2007, the Federal Constitutional Court refused, without stating further reasons, to accept her constitutional complaint for adjudication.
31. Apart from specific legislation with respect to civil servants exposing suspected cases of corruption, German law does not contain general provisions governing the disclosure of deficiencies in enterprises or institutions, such as illegal conduct on the part of the employer, by an employee (“whistle-blowing”) and discussions on related draft legislation have for the time being not produced any results.
32. In the absence of such specific legislation, an extraordinary dismissal of an employee for having lodged a criminal complaint against his or her employer may be based on Article 626 § 1 of the Civil Code, which provides that an employment relationship may be terminated by either party to the contract without complying with a notice period for a “compelling reason” (wichtiger Grund). Facts must be present on the basis of which the party giving notice cannot reasonably be expected to continue the employment until the end of the notice period or to the agreed end of that relationship, taking all circumstances of the individual case into account and weighing up the interests of both parties to the contract.
33. Section 1(1) of the Unfair Dismissal Act provides that termination of an employment relationship by the employer is unlawful if it is socially unjustified. Under section 1(2) of the Act, termination is socially unjustified unless it is, inter alia, based on grounds relating to the employee himself or to his conduct or continuation of the employment relationship would conflict with compelling requirements for the operation of the enterprise.
34. In a decision of 2 July 2001 (file No. 1 BvR 2049/00) the Federal Constitutional Court ruled in a case where, at the request of the public prosecutor, an employee had given evidence and handed over documents in preliminary criminal investigations that had been instituted against his employer by the public prosecutor ex officio. The Federal Constitutional Court held that, in accordance with the rule of law, the discharge of a citizen’s duty to give evidence in criminal investigations could not in itself entail disadvantages under civil law. The Federal Constitutional Court further pointed out in an obiter dictum that even in the event that an employee reported the employer to the public prosecution authorities on his or her own initiative, the rule of law required that such exercise of a citizen’s right would, as a rule, not justify dismissal without notice, unless the employee had knowingly or frivolously reported incorrect information.
35. In the light of the Federal Constitutional Court’s case-law, the Federal Labour Court, in a judgment of 3 July 2003 (file No. 2 AZR 235/02), further elaborated on the relation between an employee’s duty of loyalty towards the employer and the exercise of his or her constitutionally guaranteed rights. It reiterated that in reporting a criminal offence an employee had recourse to a means of implementing the law that was not only sanctioned by the legal order but also called for under the Constitution. An employee who exercised that right in good faith could not therefore incur a disadvantage in the event that the underlying allegations proved wrong or could not be clarified in the course of the ensuing proceedings. It held, however, that, taking into consideration the employee’s duty of loyalty, a [criminal] complaint lodged by an employee must not constitute a disproportionate reaction in response to the employer’s conduct. Indications of a disproportionate reaction by the complainant employee could be the justification of the complaint, the motivation of the person lodging the complaint or the failure to have previously drawn attention to the impugned deficiencies internally within the enterprise. In this context the employee’s motives for lodging the complaint were of particular significance. A complaint that was lodged solely to cause damage to the employer or to “wear him or her down” could constitute a disproportionate reaction depending on the charges underlying the complaint. As regards the possibility of previous internal clarification of the allegations, the court stated that it had to be determined in each individual case whether such an approach could reasonably have been expected of the employee. It would not be expected if the latter had obtained knowledge of an offence which, if he or she failed to report it, would render him or her liable to criminal prosecution or in the event of a serious criminal offence or an offence committed by the employer himself. In addition, previous internal clarification of the matter was not required if redress could not legitimately be expected. If the employer failed to remedy an unlawful practice even though the employee had previously drawn his attention to that practice, the latter was no longer bound by a duty of loyalty towards his employer.
36. Article 170 of the Code of Criminal Procedure provides for the following outcomes of investigation proceedings:
“(1) If the investigations offer sufficient reason for bringing public charges, the public prosecution office shall submit a bill of indictment to the competent court.
(2) In all other cases the public prosecution office shall terminate the proceedings. The public prosecutor shall notify the accused accordingly if he was examined as such or a warrant of arrest was issued against him; the same shall apply if he has requested such notice or if there is a particular interest in notifying him.”
37. In its Resolution 1729 (2010) on the protection of “whistle-blowers” the Parliamentary Assembly of the Council of Europe stressed the importance of “whistle-blowing” – concerned individuals sounding the alarm in order to stop wrongdoings that place fellow human beings at risk – as an opportunity to strengthen accountability, and bolster the fight against corruption and mismanagement, both in the public and private sectors. It invited all member States to review their legislation concerning the protection of “whistle-blowers”, keeping in mind the following guiding principles:
6.1.1. the definition of protected disclosures shall include all bona fide warnings against various types of unlawful acts, including all serious human rights violations which affect or threaten the life, health, liberty and any other legitimate interests of individuals as subjects of public administration or taxpayers, or as shareholders, employees or customers of private companies;
6.1.2. the legislation should therefore cover both public and private sector whistle-blowers ..., and
6.1.3. it should codify relevant issues in the following areas of law:
6.1.3.1. employment law – in particular protection against unfair dismissals and other forms of employment-related retaliation; ...
6.2.2. This legislation should protect anyone who, in good faith, makes use of existing internal whistle-blowing channels from any form of retaliation (unfair dismissal, harassment or any other punitive or discriminatory treatment).
6.2.3. Where internal channels either do not exist, have not functioned properly or could reasonably be expected not to function properly given the nature of the problem raised by the whistle-blower, external whistle-blowing, including through the media, should likewise be protected.
6.2.4. Any whistle-blower shall be considered as having acted in good faith provided he or she had reasonable grounds to believe that the information disclosed was true, even if it later turns out that this was not the case, and provided he or she did not pursue any unlawful or unethical objectives.”
The above guidelines were also referred to in the Parliamentary Assembly’s related Recommendation 1916 (2010).
38. Article 24 of the Revised European Social Charter reads as follows:
“With a view to ensuring the effective exercise of the right of workers to protection in cases of termination of employment, the Parties undertake to recognise: ...
a) the right of all workers not to have their employment terminated without valid reasons for such termination connected with their capacity or conduct or based on the operational requirements of the undertaking, establishment or service; ...
The Appendix to Article 24 specifies :
“3. For the purpose of this article the following, in particular, shall not constitute valid reasons for termination of employment: ...
c the filing of a complaint or the participation in proceedings against an employer involving alleged violation of laws or regulations or recourse to competent administrative authorities; ...”
Article 24 of the Revised European Social Charter has been ratified by twenty-four of the Council of Europe’s member States. Germany has signed but not yet ratified the Revised European Social Charter.
39. Article 5 of the Termination of Employment Convention of the International Labour Organisation (ILO Convention No. 158 of 22 June 1982) stipulates:
“The following, inter alia, shall not constitute valid reasons for termination: ...
(c) the filing of a complaint or the participation in proceedings against an employer involving alleged violation of laws or regulations or recourse to competent administrative authorities; ...”.
Germany has not ratified ILO Convention No. 158.
40. A number of other international instruments address the protection of whistle-blowers in specific contexts, in particular the fight against corruption, such as the Council of Europe’s Criminal Law Convention on Corruption and Civil Law Convention on Corruption or the United Nations Convention against Corruption.
VIOLATED_ARTICLES: 10


ITEMID: 001-57827
LANGUAGEISOCODE: ENG
RESPONDENT: GRC
BRANCH: CHAMBER
DATE: 1993
DOCNAME: CASE OF KOKKINAKIS v. GREECE
IMPORTANCE: 2
CONCLUSION: Violation of Art. 9;No violation of Art. 7;Not necessary to examine Art. 10;Not necessary to examine Art. 14+9;Non-pecuniary damage - financial award;Costs and expenses award - domestic proceedings;Costs and expenses award - Convention proceedings
JUDGES: N. Valticos
TEXT: 6. Mr Minos Kokkinakis, a retired businessman of Greek nationality, was born into an Orthodox family at Sitia (Crete) in 1919. After becoming a Jehovah’s Witness in 1936, he was arrested more than sixty times for proselytism. He was also interned and imprisoned on several occasions.
The periods of internment, which were ordered by the administrative authorities on the grounds of his activities in religious matters, were spent on various islands in the Aegean (thirteen months in Amorgos in 1938, six in Milos in 1940 and twelve in Makronisos in 1949).
The periods of imprisonment, to which he was sentenced by the courts, were for acts of proselytism (three sentences of two and a half months in 1939 - he was the first Jehovah’s Witness to be convicted under the Laws of the Metaxas Government (see paragraph 16 below) -, four and a half months in 1949 and two months in 1962), conscientious objection (eighteen and a half months in 1941) and holding a religious meeting in a private house (six months in 1952).
Between 1960 and 1970 the applicant was arrested four times and prosecuted but not convicted.
7. On 2 March 1986 he and his wife called at the home of Mrs Kyriakaki in Sitia and engaged in a discussion with her. Mrs Kyriakaki’s husband, who was the cantor at a local Orthodox church, informed the police, who arrested Mr and Mrs Kokkinakis and took them to the local police station, where they spent the night of 2-3 March 1986.
8. The applicant and his wife were prosecuted under section 4 of Law no. 1363/1938 making proselytism an offence (see paragraph 16 below) and were committed for trial at the Lasithi Criminal Court (trimeles plimmeliodikio), which heard the case on 20 March 1986.
9. After dismissing an objection that section 4 of that Law was unconstitutional, the Criminal Court heard evidence from Mr and Mrs Kyriakaki, a defence witness and the two defendants and gave judgment on the same day:
"[The defendants], who belong to the Jehovah’s Witnesses sect, attempted to proselytise and, directly or indirectly, to intrude on the religious beliefs of Orthodox Christians, with the intention of undermining those beliefs, by taking advantage of their inexperience, their low intellect and their naïvety. In particular, they went to the home of [Mrs Kyriakaki] ... and told her that they brought good news; by insisting in a pressing manner, they gained admittance to the house and began to read from a book on the Scriptures which they interpreted with reference to a king of heaven, to events which had not yet occurred but would occur, etc., encouraging her by means of their judicious, skilful explanations ... to change her Orthodox Christian beliefs."
The court found Mr and Mrs Kokkinakis guilty of proselytism and sentenced each of them to four months’ imprisonment, convertible (under Article 82 of the Criminal Code) into a pecuniary penalty of 400 drachmas per day’s imprisonment, and a fine of 10,000 drachmas. Under Article 76 of the Criminal Code, it also ordered the confiscation and destruction of four booklets which they had been hoping to sell to Mrs Kyriakaki.
10. Mr and Mrs Kokkinakis appealed against this judgment to the Crete Court of Appeal (Efetio). The Court of Appeal quashed Mrs Kokkinakis’s conviction and upheld her husband’s but reduced his prison sentence to three months and converted it into a pecuniary penalty of 400 drachmas per day. The following reasons were given for its judgment, which was delivered on 17 March 1987:
"... it was proved that, with the aim of disseminating the articles of faith of the Jehovah’s Witnesses sect (airesi), to which the defendant adheres, he attempted, directly and indirectly, to intrude on the religious beliefs of a person of a different religious persuasion from his own, [namely] the Orthodox Christian faith, with the intention of changing those beliefs, by taking advantage of her inexperience, her low intellect and her naïvety. More specifically, at the time and place indicated in the operative provision, he visited Mrs Georgia Kyriakaki and after telling her he brought good news, pressed her to let him into the house, where he began by telling her about the politician Olof Palme and by expounding pacifist views. He then took out a little book containing professions of faith by adherents of the aforementioned sect and began to read out passages from Holy Scripture, which he skilfully analysed in a manner that the Christian woman, for want of adequate grounding in doctrine, could not challenge, and at the same time offered her various similar books and importunately tried, directly and indirectly, to undermine her religious beliefs. He must consequently be declared guilty of the above-mentioned offence, in accordance with the operative provision hereinafter, while the other defendant, his wife Elissavet, must be acquitted, seeing that there is no evidence that she participated in the offence committed by her husband, whom she merely accompanied ..."
One of the appeal judges dissented, and his opinion, which was appended to the judgment, read as follows:
"... the first defendant should also have been acquitted, as none of the evidence shows that Georgia Kyriakaki ... was particularly inexperienced in Orthodox Christian doctrine, being married to a cantor, or of particularly low intellect or particularly naïve, such that the defendant was able to take advantage and ... [thus] induce her to become a member of the Jehovah’s Witnesses sect."
According to the record of the hearing of 17 March 1987, Mrs Kyriakaki had given the following evidence:
"They immediately talked to me about Olof Palme, whether he was a pacifist or not, and other subjects that I can’t remember. They talked to me about things I did not understand very well. It was not a discussion but a constant monologue by them. ... If they had told me they were Jehovah’s Witnesses, I would not have let them in. I don’t recall whether they spoke to me about the Kingdom of Heaven. They stayed in the house about ten minutes or a quarter of an hour. What they told me was religious in nature, but I don’t know why they told it to me. I could not know at the outset what the purpose of their visit was. They may have said something to me at the time with a view to undermining my religious beliefs ... . [However,] the discussion did not influence my beliefs ..."
11. Mr Kokkinakis appealed on points of law. He maintained, inter alia, that the provisions of Law no. 1363/1938 contravened Article 13 of the Constitution (see paragraph 13 below).
12. The Court of Cassation (Arios Pagos) dismissed the appeal on 22 April 1988. It rejected the plea of unconstitutionality for the following reasons:
"Section 4 of Law no. 1363/1938, substituted by section 2 of Law no. 1672/1939 providing for the implementation of Articles 1 and 2 of the Constitution and enacted under the 1911 Constitution then in force, Article 1 of which prohibited proselytism and any other interference with the dominant religion in Greece, namely the Christian Eastern Orthodox Church, not only does not contravene Article 13 of the 1975 Constitution but is fully compatible with the Constitution, which recognises the inviolability of freedom of conscience in religious matters and provides for freedom to practise any known religion, subject to a formal provision in the same Constitution prohibiting proselytism in that proselytism is forbidden in general whatever the religion against which it is directed, including therefore the dominant religion in Greece, in accordance with Article 3 of the 1975 Constitution, namely the Christian Eastern Orthodox Church."
It also noted that the Crete Court of Appeal had given detailed reasons for its judgment and had complied with the 1975 Constitution in applying the impugned provisions.
In the opinion of a dissenting member, the Court of Cassation should have quashed the judgment of the court below for having wrongly applied section 4 of Law no. 1363/1938 in that it had made no mention of the promises whereby the defendant had allegedly attempted to intrude on Mrs Kyriakaki’s religious beliefs and had given no particulars of Mrs Kyriakaki’s inexperience and low intellect.
13. The relevant Articles of the 1975 Constitution read as follows:
"1. The dominant religion in Greece is that of the Christian Eastern Orthodox Church. The Greek Orthodox Church, which recognises as its head Our Lord Jesus Christ, is indissolubly united, doctrinally, with the Great Church of Constantinople and with any other Christian Church in communion with it (omodoxi), immutably observing, like the other Churches, the holy apostolic and synodical canons and the holy traditions. It is autocephalous and is administered by the Holy Synod, composed of all the bishops in office, and by the standing Holy Synod, which is an emanation of it constituted as laid down in the Charter of the Church and in accordance with the provisions of the Patriarchal Tome of 29 June 1850 and the Synodical Act of 4 September 1928.
2. The ecclesiastical regime in certain regions of the State shall not be deemed contrary to the provisions of the foregoing paragraph.
3. The text of the Holy Scriptures is unalterable. No official translation into any other form of language may be made without the prior consent of the autocephalous Greek Church and the Great Christian Church at Constantinople."
"1. Freedom of conscience in religious matters is inviolable. The enjoyment of personal and political rights shall not depend on an individual’s religious beliefs.
2. There shall be freedom to practise any known religion; individuals shall be free to perform their rites of worship without hindrance and under the protection of the law. The performance of rites of worship must not prejudice public order or public morals. Proselytism is prohibited.
3. The ministers of all known religions shall be subject to the same supervision by the State and to the same obligations to it as those of the dominant religion.
4. No one may be exempted from discharging his obligations to the State or refuse to comply with the law by reason of his religious convictions.
5. No oath may be required other than under a law which also determines the form of it."
14. The Christian Eastern Orthodox Church, which during nearly four centuries of foreign occupation symbolised the maintenance of Greek culture and the Greek language, took an active part in the Greek people’s struggle for emancipation, to such an extent that Hellenism is to some extent identified with the Orthodox faith.
A royal decree of 23 July 1833 entitled "Proclamation of the Independence of the Greek Church" described the Orthodox Church as "autocephalous". Greece’s successive Constitutions have referred to the Church as being "dominant". The overwhelming majority of the population are members of it, and, according to Greek conceptions, it represents de jure and de facto the religion of the State itself, a good number of whose administrative and educational functions (marriage and family law, compulsory religious instruction, oaths sworn by members of the Government, etc.) it moreover carries out. Its role in public life is reflected by, among other things, the presence of the Minister of Education and Religious Affairs at the sessions of the Church hierarchy at which the Archbishop of Athens is elected and by the participation of the Church authorities in all official State events; the President of the Republic takes his oath of office according to Orthodox ritual (Article 33 para. 2 of the Constitution); and the official calendar follows that of the Christian Eastern Orthodox Church.
15. Under the reign of Otto I (1832-62), the Orthodox Church, which had long complained of a Bible society’s propaganda directed at young Orthodox schoolchildren on behalf of the Evangelical Church, managed to get a clause added to the first Constitution (1844) forbidding "proselytism and any other action against the dominant religion". The Constitutions of 1864, 1911 and 1952 reproduced the same clause. The 1975 Constitution prohibits proselytism in general (Article 13 para. 2 in fine - see paragraph 13 above): the ban covers all "known religions", meaning those whose doctrines are not apocryphal and in which no secret initiation is required of neophytes.
16. During the dictatorship of Metaxas (1936-40) proselytism was made a criminal offence for the first time by section 4 of Law (anagastikos nomos) no. 1363/1938. The following year that section was amended by section 2 of Law no. 1672/1939, in which the meaning of the term "proselytism" was clarified:
"1. Anyone engaging in proselytism shall be liable to imprisonment and a fine of between 1,000 and 50,000 drachmas; he shall, moreover, be subject to police supervision for a period of between six months and one year to be fixed by the court when convicting the offender.
The term of imprisonment may not be commuted to a fine.
2. By ‘proselytism’ is meant, in particular, any direct or indirect attempt to intrude on the religious beliefs of a person of a different religious persuasion (eterodoxos), with the aim of undermining those beliefs, either by any kind of inducement or promise of an inducement or moral support or material assistance, or by fraudulent means or by taking advantage of his inexperience, trust, need, low intellect or naïvety.
3. The commission of such an offence in a school or other educational establishment or a philanthropic institution shall constitute a particularly aggravating circumstance."
17. In a judgment numbered 2276/1953 a full court of the Supreme Administrative Court (Symvoulio tis Epikratias) gave the following definition of proselytism:
"Article 1 of the Constitution, which establishes the freedom to practise any known religion and to perform rites of worship without hindrance and prohibits proselytism and all other activities directed against the dominant religion, that of the Christian Eastern Orthodox Church, means that purely spiritual teaching does not amount to proselytism, even if it demonstrates the errors of other religions and entices possible disciples away from them, who abandon their original religions of their own free will; this is because spiritual teaching is in the nature of a rite of worship performed freely and without hindrance. Outside such spiritual teaching, which may be freely given, any determined, importunate attempt to entice disciples away from the dominant religion by means that are unlawful or morally reprehensible constitutes proselytism as prohibited by the aforementioned provision of the Constitution."
18. The Greek courts have held that persons were guilty of proselytism who had: likened the saints to "figures adorning the wall", St Gerasimos to "a body stuffed with cotton" and the Church to "a theatre, a market, a cinema"; preached, while displaying a painting showing a crowd of wretched people in rags, that "such are all those who do not embrace my faith" (Court of Cassation, judgment no. 271/1932, Themis XVII, p. 19); promised Orthodox refugees housing on specially favourable terms if they adhered to the Uniate faith (Court of Appeal of the Aegean, judgment no. 2950/1930, Themis B, p. 103); offered a scholarship for study abroad (Court of Cassation, judgment no. 2276/1953); sent Orthodox priests booklets with the recommendation that they should study them and apply their content (Court of Cassation, judgment no. 59/1956, Nomiko Vima, 1956, no. 4, p. 736); distributed "so-called religious" books and booklets free to "illiterate peasants" or to "young schoolchildren" (Court of Cassation, judgment no. 201/1961, Criminal Annals XI, p. 472); or promised a young seamstress an improvement in her position if she left the Orthodox Church, whose priests were alleged to be "exploiters of society" (Court of Cassation, judgment no. 498/1961, Criminal Annals XII, p. 212).
The Court of Cassation has ruled that the definition of proselytism in section 4 of Law no. 1363/1938 does not contravene the principle that only the law can define a crime and prescribe a penalty. The Piraeus Criminal Court followed it in an order (voulevma) numbered 36/1962 (Greek Lawyers’ Journal, 1962, p. 421), adding that the expression "in particular" in section 4 of Law no. 1363/1938 (see paragraph 16 above) referred to the means used by the person committing the offence and not to the description of the actus reus.
19. Until 1975 the Court of Cassation held that the list in section 4 was not exhaustive. In a judgment numbered 997/1975 (Criminal Annals XXVI, p. 380) it added the following clarification:
"... it follows from the provisions of section 4 ... that proselytism consists in a direct or indirect attempt to impinge on religious beliefs by any of the means separately listed in the Law."
20. More recently courts have convicted Jehovah’s Witnesses for professing the sect’s doctrine "importunately" and accusing the Orthodox Church of being a "source of suffering for the world" (Salonika Court of Appeal, judgment no. 2567/1988); for entering other people’s homes in the guise of Christians wishing to spread the New Testament (Florina Court of First Instance, judgment no. 128/1989); and for attempting to give books and booklets to an Orthodox priest at the wheel of his car after stopping him (Lasithi Court of First Instance, judgment no. 357/1990).
In a judgment numbered 1304/1982 (Criminal Annals XXXII, p. 502), on the other hand, the Court of Cassation quashed a judgment of the Athens Court of Appeal (no. 5434/1981) as having no basis in law because, when convicting a Jehovah’s Witness, the Court of Appeal had merely reiterated the words of the indictment and had thus not explained how "the importunate teaching of the doctrines of the Jehovah’s Witnesses sect" or "distribution of the sect’s booklets at a minimal price" had amounted to an attempt to intrude on the complainants’ religious beliefs, or shown how the defendant had taken advantage of their "inexperience" and "low intellect". The Court of Cassation remitted the case to a differently constituted bench of the Court of Appeal, which acquitted the defendant.
Similarly, it has been held in several court decisions that the offence of proselytism was not made out where there had merely been a discussion about the beliefs of the Jehovah’s Witnesses, where booklets had been distributed from door to door (Patras Court of Appeal, judgment no. 137/1988) or in the street (Larissa Court of Appeal, judgment no. 749/1986) or where the tenets of the sect had been explained without any deception to an Orthodox Christian (Trikkala Criminal Court, judgment no. 186/1986). Lastly, it has been held that being an "illiterate peasant" is not sufficient to establish the "naïvety", referred to in section 4, of the person whom the alleged proselytiser is addressing (Court of Cassation, judgment no. 1155/1978).
21. After the revision of the Constitution in 1975, the Jehovah’s Witnesses brought legal proceedings to challenge the constitutionality of section 4 of Law no. 1363/1938. They complained that the description of the offence was vague, but above all they objected to the actual title of the Law, which indicated that the Law was designed to preserve Articles 1 and 2 of the Constitution in force at the time (the 1911 Constitution - see paragraph 12 above), which prohibited proselytism directed against the dominant religion. In the current Constitution this prohibition is extended to all religions and furthermore is no longer included in the chapter concerning religion but in the one dealing with civil and social rights, and more particularly in Article 13, which guarantees freedom of conscience in religious matters.
The courts have always dismissed such objections of unconstitutionality, although they have been widely supported in legal literature.
22. The Jehovah’s Witnesses movement appeared in Greece at the beginning of the twentieth century. Estimates of its membership today vary between 25,000 and 70,000. Members belong to one of 338 congregations, the first of which was formed in Athens in 1922.
23. Since the revision of the Constitution in 1975 the Supreme Administrative Court has held on several occasions that the Jehovah’s Witnesses come within the definition of a "known religion" (judgments nos. 2105 and 2106/1975, 4635/1977, 2484/1980, 4620/1985, 790 and 3533/1986 and 3601/1990). Some first-instance courts, however, continue to rule to the contrary (Heraklion Court of First Instance, judgments nos. 272/1984 and 87/1986). In 1986 the Supreme Administrative Court held (in judgment no. 3533/1986) that a ministerial decision refusing the appointment of a Jehovah’s Witness as a literature teacher was contrary to freedom of conscience in religious matters and hence to the Greek Constitution.
24. According to statistics provided by the applicant, 4,400 Jehovah’s Witnesses were arrested between 1975 (when democracy was restored) and 1992, and 1,233 of these were committed for trial and 208 convicted. Earlier, several Jehovah’s Witnesses had been convicted under Law no. 117/1936 for the prevention of communism and its effects and Law no. 1075/1938 on preserving the social order.
The Government have not challenged the applicant’s figures. They have, however, pointed out that there have been signs of a decline in the frequency of convictions of Jehovah’s Witnesses, only 7 out of a total of 260 people arrested having been convicted in 1991 and 1992.
VIOLATED_ARTICLES: 9
NON_VIOLATED_ARTICLES: 7