ITEMID: 001-22617
LANGUAGEISOCODE: ENG
RESPONDENT: CZE
BRANCH: ADMISSIBILITY
DATE: 2002
DOCNAME: MANOUSSOS v. THE CZECH REPUBLIC AND GERMANY
IMPORTANCE: 4
CONCLUSION: Inadmissible
TEXT: The applicant, Mr Andreas Manoussos, is a Greek national who was born in 1964. He is serving a prison sentence in the Rýnovice prison (Czech Republic). The Government of the Czech Republic were represented by Mr E. Slavík, their Agent, succeeded by Mr V. Schorm.
The facts of the case, as submitted by the parties, may be summarised as follows.
On 11 June 1996 the applicant was apprehended by the Czech police. He was heard in the presence of an interpreter and accused of forging public documents and of the attempted forgery of bank notes. Several other persons were accused in the same context on the basis of information submitted by the Office for the Suppression of Organised Crime and by German authorities. According to that information, the applicant and four other persons had forged Eurocheques with a view to distributing them abroad, in particular in Germany. They were linked to an organised criminal group in Germany. In addition, the accused had fabricated German identity cards. The applicant refused to have a lawyer assigned to him ex officio and stated that his brother and girl-friend should appoint a lawyer to represent him.
On 12 June 1996 the police investigator requested that the applicant be remanded in custody. On the same day the Prague 6 District Court appointed Mr P.M. to represent the applicant ex officio.
On 13 June 1996 a judge of the Prague 9 District Court heard the applicant in the presence of an interpreter. The judge remanded the applicant in custody. The decision stated that all the accused, but for one, were foreigners and that the actions imputed to them had been committed in several countries. The judge concluded that the accused could abscond and jeopardise the investigation.
According to the Czech Government, on 13 June 1996 a lawyer, Mr E.B., accepted to represent the applicant upon the request of the latter’s girl-friend.
This is contested by the applicant who alleges that Mr E.B. was appointed by his girl-friend on 11 June 1996. According to the applicant, Mr E.B. was only able to visit him eleven days after he had been appointed.
On 10 July 1996 the City Court in Prague dismissed the applicant’s complaint against the remand decision.
On 23 October and 27 November 1996 the applicant was heard in the presence of his lawyer and an interpreter.
On 10 December 1996 the Prague 9 District Court extended the applicant’s detention on remand until 11 April 1997. On 2 April 1997 the applicant’s detention was extended until 11 August 1997. The court noted that the case was complex, that the German authorities had been asked for legal assistance and that the damage which the accused had allegedly caused amounted to approximately ten million Deutschmarks (DEM). Several expert opinions were necesssary with a view to establishing the relevant facts.
On 23 April 1997 the applicant was heard in the presence of his lawyer.
On 19 May 1997 the head physician in Prague-Pankrác prison submitted a certificate according to which the applicant’s state of health was good despite the fact that he had staged several hunger strikes. The doctor expressed the view that the applicant was fit to face the criminal proceedings.
On 21 May 1997 the applicant was heard in the presence of his lawyer.
On 24 July 1997 the Prague 9 District Court extended the applicant’s detention on remand to 11 February 1998. The court noted that the length of the proceedings was due to the complex character of the case, the need to obtain further expert opinions, the wide range of acts imputed to the accused and the fact that the alleged crimes had been committed in several States.
On 22 September 1997 the applicant appointed Ms E.S. to represent him in the proceedings. On 25 November 1997 Ms E.S. informed the police that she would no longer represent the applicant.
On 28 November 1997 several documents of a religious nature were taken away from the applicant on the ground that the volume of documents which he had in his cell was excessive.
On 5 December 1997 the Prague 9 District Court appointed Mr E.B. to represent the applicant ex officio.
On 16 December 1997 the applicant was examined. On 28 January 1998 he filed a request for release.
On 4 February 1998 the Prague 9 District Court extended the detention of the applicant and of his co-accused to 12 April 1998. The decision stated that a considerable time was still required to study the case-file and prepare the indictment. In the court’s view, there was a risk that the accused could abscond, jeopardise the investigation or, possibly, commit further offences.
On 8 April 1998 the public prosecutor indicted the applicant and four other persons for the forgery of notes and public documents in the context of organised crime.
A hearing before the Prague City Court was held on 20 May 1998. The applicant, who was represented by his lawyer, complained that he had not been provided with a translation of the indictment into German. The court decided to allow the applicant more time to prepare his defence and adjourned the case until 4 August 1998. The City Court further dismissed the applicant’s request for release.
On 28 May 1998 the Ministry of Justice of the Czech Republic requested assistance from the German authorities.
On 2 and 15 June 1998 the applicant requested the Prague City Court to appoint a different lawyer to represent him in the proceedings.
On 4 June 1998 the High Court dismissed the applicant’s complaint against the City Court’s refusal to release him. On the same day the High Court extended the detention of the applicant and his co-accused to 31 January 1999.
On 16 January 1998 the applicant requested that a different lawyer be appointed to represent him ex officio. On the same day the applicant filed a “criminal complaint” with the Constitutional Court in which he alleged that the police investigator, the public prosecutor as well as the judges dealing with his case had violated his rights.
On 14 July 1998 the Prague City Court appointed a different lawyer, Mr I.P., to represent the applicant ex officio. On the same day the applicant asked the High Court to assign a German lawyer to him.
On 21 July 1998 the applicant informed Mr. I.P. that he could not accept his assistance as he wished to be represented by a different lawyer. On the same day the German authorities informed the Czech authorities that criminal proceedings had been brought against the applicant in Germany.
The Prague City Court proceeded with the case on 4 and 5 August 1998. The applicant requested that a different lawyer be assigned to him. He also challenged the City Court judges. The case was adjourned.
On 8 September 1997 the High Court dismissed the applicant’s complaint about the City Court judges’ lack of impartiality. It further refused to appoint a different lawyer to represent the applicant ex officio and noted that the applicant was free to appoint a lawyer of his own choice.
A hearing before the City Court was held on 16 and 17 September 1998. The applicant requested that further evidence be taken. The case was adjourned.
On 14 October 1998 the Prague City Court convicted the applicant of forgery on several counts as a member of a criminal association and sentenced him to eleven years’ imprisonment. The applicant appealed.
On 4 December 1998 the applicant requested that Mr I.P. should no longer represent him ex officio. On 7 and 11 December 1998 Mr I.P. requested that he be released from the obligation to represent the applicant as no confidence existed between him and his client.
On 4 January 1999 the Prague City Court allowed the request and appointed a different lawyer, Mr J.K., to represent the applicant ex officio.
On 12 January 1999 the High Court extended the applicant’s detention on remand to 30 June 1999.
On 22 January 1999 the presiding judge of the High Court put a note in the case-file according to which the applicant had corresponded with one of his co-accused without authorisation. On 25 January 1999 the applicant complained to the High Court that his correspondence was monitored.
On 1 February 1999 the applicant stated that he no longer wished to be represented by Mr J.K. He complained that the lawyer’s visits were sporadic, that he had not responded to the applicant’s letters and that he also acted, in different cases, as an official interpreter for the City Court. The applicant therefore expressed doubts about the lawyer’s impartiality. In his letter the applicant further stated that one of his previous lawyers had declared that the State had not paid his fees for the past five years. He requested that a lawyer practising in Rumburk be assigned to him.
On 8 and 16 February 1999 the applicant complained to the High Court that all the lawyers who had been assigned to him had failed to represent him in an appropriate manner. On the latter date the applicant also informed the High Court that he was on a hunger strike.
On 18 February 1999 Mr J.K. informed the High Court that he had studied the case-file, that he had contacted the applicant, translated the first instance judgment into German and given it to the accused. At the lawyer’s request, the applicant’s relatives paid the costs of the translation.
A hearing before the High Court was held on 9 March 1999. The applicant, who was on hunger strike, collapsed when he was about to be brought to the court room. The High Court therefore decided to deal with the charges against the applicant separately.
On 4 May 1999 another hearing was held before the High Court. The applicant was represented by Mr J.K. and he was also assisted by an interpreter. Representatives of the media were present. A report established by the prison medical service indicated that the applicant was able to take part in the hearing.
The High Court quashed the first instance judgment and convicted the applicant, as a member of an organised group, of the forgery of notes and public documents. The High Court established that the applicant and several other persons had forged Eurocheques and German identity cards. The High Court did not share the Prague City Court’s view that the applicant had committed the offences as a member of a criminal association. The applicant was sentenced to eleven years’ imprisonment in a high security prison, and to expulsion from the Czech Republic.
At the hearing the applicant stated that he had not been provided with due legal assistance and that he had not been able to prepare his defence. He also complained that he could not question several witnesses who had been heard by German authorities and whose statements had been read out at the hearing before the first instance court.
The High Court found that the City Court had established all relevant facts and that its reasoning was relevant and sufficient. It noted that the witnesses heard by German authorities had been invited to the hearing at first instance, but had failed to appear. The fact that their statements were read out by the court after they had failed to appear at the hearing was not contrary to the relevant provisions of the Code of Criminal Procedure. In addition, the statements of those witnesses were corroborated by the statements of other witnesses and the applicant’s co-accused, as well as by comprehensive documentary evidence including expert opinions. The High Court further noted that the lawyers representing the applicant had changed six times due to the applicant’s objections. The applicant’s presumption that he was free to choose the lawyer who should be appointed to represent him ex officio was erroneous.
On 24 May 1999 the applicant complained to the Supreme Court that the High Court judges had been biased. The Supreme Court rejected the complaint as being both unsubstantiated and lodged out of time.
According to the applicant, there was an interference with his correspondence whilst he was detained on remand. For example, in a letter of 27 July 1998 addressed to the Czech Bar Association, the applicant complained that a letter sent to a German lawyer had been opened. In another letter of 20 April 1999 and addressed to a German law firm, the applicant alleged that his correspondence had been delayed between 1 June 1996 and 15 October 1998 due to the fact that it had been monitored. In a letter of 17 July 1998 and addressed to the United States Embassy in Prague, the applicant alleged that his correspondence addressed to various foreign diplomatic representations had been monitored.
The Government contend that the applicant’s allegations are unsubstantiated and affirm, with reference to the relevant law, that the correspondence between the applicant and his lawyers had neither been monitored nor delayed.
While he was detained on remand, the applicant was placed in an 8m² cell with two other persons in which there was no hot water. He was allowed to take a shower once a week and could not practice sport. On several occasions he was not allowed to meet with persons from outside the prison.
On 4 May 2001, while he was serving the prison term, the Prague City Court allowed the applicant’s request that an interpreter be assigned to him so that he could study the criminal file concerning his case.
In letters of 8 February and 23 March 1998 the applicant asked the Constitutional Court to provide him with information about the provisions of the Constitution of the Czech Republic.
On 27 March 1998 the vice-president of the Constitutional Court informed the applicant that the Constitutional Court could not entertain his submissions as they were not a formal request for proceedings to be instituted. The applicant was further advised that he had to be represented by a lawyer if he wished to file a constitutional appeal.
On 15 February 1999 the applicant complained to the Constitutional Court about the alleged unfairness of the criminal proceedings against him. He claimed that the City Court had refused to grant his request for several witnesses to be heard and that his conviction had been arbitrary. The applicant further complained that the High Court had refused to provide him with a translation of the first instance judgment and that the lawyer appointed to represent him ex officio, Mr. J.K., was willing to translate it only if the applicant paid him DEM 600. The letter stated that Mr J.K. had expressed the view, on 6 February 1999, that the applicant had no chance of succeeding before the Constitutional Court. The applicant concluded that he had no confidence in that lawyer.
On 22 February 1999 the applicant sent another letter to the Constitutional Court in which he complained that the High Court had refused, on 9 February 1999, to appoint a lawyer of his own choice to represent him ex officio. He also complained that he had not enough time to prepare his defence in the appellate proceedings.
As the complaints did not satisfy certain formal requirements, a Constitutional Court judge requested the applicant, on 25 March 1999, to rectify the shortcomings and, in particular, to appoint a lawyer to represent him in the proceedings within sixty days. The applicant was advised that he could appoint a lawyer of his own choice or ask the Czech Bar Association to assign a lawyer to him if he did not trust his representative from the criminal proceedings.
On 29 March 1999 the applicant requested the Czech Bar Association to assign a lawyer to him.
On 31 March 1999 and on 6 April 1999 the applicant was informed that Mr J.S., a lawyer practising in Prague, had been assigned to represent him in the proceedings before the Constitutional Court.
On 2 April 1999 the applicant complained to the Czech Bar Association that Mr J.K., the lawyer appointed ex officio, had failed to represent him in an appropriate manner. The applicant alleged that the lawyer disregarded his interests and that he had failed to take appropriate action to defend the applicant effectively. In particular, the applicant maintained that the lawyer deliberately disregarded the fact that the constitutional complaints had to be filed urgently with a view to protecting his defence rights in the on-going criminal proceedings.
In a letter of 14 April 1999 the applicant complained to the Constitutional Court that his defence in the criminal proceedings had been impaired by the Czech secret services and that he had no confidence in the Czech Bar Association or the lawyers by whom he had been represented ex officio. He asked the Constitutional Court to provide him with a reliable lawyer and to prevent the High Court from holding the hearing scheduled for 4 May 1999.
In a letter addressed to the High Court in Prague on 16 April 1999 the applicant pointed out, inter alia, that Mr J.K. had informed him that a constitutional complaint about the criminal proceedings could only be filed after the delivery of the final decision.
On 21 April 1994 Mr J.S. informed the applicant, after consultation with the presiding judge of the High Court and the representatives of the Czech Bar Association, that his assignment had been unlawful. The lawyer explained that Mr J.K. was the applicant’s legal representative appointed ex officio and that the relevant regulations excluded that a second lawyer be assigned by the Bar Association in such a case. The letter stated that the Bar Association had not had at its disposal all the relevant information. The applicant was advised to seek assistance from Mr J.K.
In a letter of 26 April 1999 the Czech Bar Association confirmed the revocation of Mr J.S.’s assignment.
On 8 June 1999 the Constitutional Court rejected the applicant’s constitutional appeal on the ground that the applicant had failed to appoint a lawyer, as required by the relevant law, despite the fact that he had been requested to do so within sixty days on 26 March 1999. The decision stated that the applicant had challenged the Prague City Court’s judgment of 14 October 1998 and the conduct of the proceedings before the appellate court without having specified the relevant facts or the rights allegedly violated.
On 23 August 1999 the head of the Control Department of the Czech Bar Association dismissed the applicant’s complaint of 2 April 1999 about Mr J.K. as being unsubstantiated.
On 5 May 1999 the applicant started serving his prison sentence in the Prague-Pankrác prison. On 10 May 1999 he was transported to the prison in Bělušice. On 10 August 1999 he was transferred to the Valdice prison for medically prescribed dietetic reasons. On 7 March 2000 the applicant was taken to the prison in Plzeň. On 24 April 2001 he was brought to the prison in Rýnovice.
Most of the relevant facts which occurred while the applicant served his sentence are disputed between the parties.
According to the applicant, a letter sent by the Court’s Registry on 14 June 1999 and handed to him on 28 June 1999 had been opened and subsequently closed. The applicant further submits that another letter sent to him by the Court’s Registry on 12 July 1999 was transmitted to him opened on 15 July 1999. The envelope of a letter from the Court’s Registry which was dispatched on 28 September 1999 was handed to the applicant damaged. It was closed with yellow tape and the applicant was infomed that it had reached the Czech post office damaged. Another letter from the Court’s Registry dated 31 August 1999 was handed to the applicant on 9 September 1999. The envelope was taped and bore a post stamp indicating that it had arrived damaged. According to the applicant, a letter from the Court’s Registry sent on 26 February 2001 was handed to him opened.
The Government deny the applicant’s allegations that his correspondence with the Court was monitored, and maintain that the applicant did not complain of the above facts to the prison administration.
The applicant’s other correspondence has been monitored. The letters which he wished to send out were returned to him on several occasions with the explanation that the stamps on them were either insufficient or damaged. This resulted in several days’ delay in sending out the applicant’s correspondence.
On 28 December 2001 the applicant received a letter from the German Federal Constitutional Court. He refused to accept it from the prison officer as it had been opened and monitored.
The applicant was not allowed to photocopy documents. He alleges that he was refused carbon paper on several occasions and that he was only allowed to use a typewriter sporadically.
The Government contend that the applicant could use his typewriter in the Rýnovice prison and that he had always been allowed to buy carbon paper if he had enough money in his account.
In 1999, while he was detained in the Bělušice prison, the applicant was not allowed to send an urgent telegram to the European Court of Human Rights in which he wished to complain about the violation of his human rights.
On 9 August 1999, when he was informed about his transfer to another prison, the applicant was distressed. He was not allowed to send a telegram to the Greek Embassy which read “S.O.S., I get psychologically tortured, please alert Strasbourg”. The applicant was told that the telegram could not be sent as his account had been blocked due to his transfer to another prison.
In November 1999 and on 4 January 2000 the applicant was not allowed to telephone the Registry of the Court or a German lawyer with a view to resolving the problem of his legal representation in the proceedings before the Court.
On 13 January 2000 the Valdice prison administration, which had been requested by the Government Agent to comment on the applicant’s various allegations, asked the applicant to specify his complaints against the Czech Republic as his submissions had been of a general character. Reference was made to the Government Regulations on Dealing with Complaints, Submissions and Petitions of 1958 (“the Regulations”). The applicant refused to comment as the prison administration was not a party to the proceedings before the Court.
On 18 February 2000 the applicant sent a telegram to the Court reading “SOS torture”.
On 4 January 2001 the Plzeň prison administration invited the applicant to specify his complaints to the Court on the ground that his submissions were unclear and that the Agent of the Government had asked the administration to submit comments on the applicant’s complaints. According to the record which was drawn up pursuant to section 9 of Regulation no. 150/1958, the applicant stated that he disaproved of the conditions in the prison, that his right to have visits was restricted, that he was not allowed to make photocopies or to have telephone conversations in English with the Registry of the Court. The applicant also stated that he feared that money which his relatives would send him could be used for paying his debts without his consent.
On 11 May 2001 the applicant was allowed to make a 30 minute telephone call to the Registry of the Court. By a letter of 28 May 2001, the applicant informed the Court that the prison administration had recorded the conversation and that the recording had been handed over to the public prosecutor. The applicant further informed the Court that the prison officers had read a letter from Mr W.F., a German national assisting the applicant in the proceedings before the Court. The prison administration explained to the applicant that Mr W.F. had not been duly appointed as the applicant’s representative and that the covering envelope did not indicate that the correspondence was exempted from control due to its special nature.
On 5 January 2001, on 30 May 2001 and on 10 December 2001 the applicant was not allowed to send telegrams in which he wished to inform the Court about disciplinary sanctions imposed on him. Subsequently, the applicant was able to submit the relevant information to the Court by ordinary mail.
On several occasions the applicant’s documents and belongings were searched and returned to him disordered.
The applicant submits that the conditions in which he has served his prison term have been inhuman and degrading. In particular, he maintains that the prisons have been overcrowded, that he was placed in cells without an electric power socket or hot water, that he has only been allowed to have a walk for an hour a day and that he has not been provided with vegetarian food.
The applicant suffered from eczema on his hands. On 19 June 2000 the prison doctor refused to administer an ointment with corticoids to him, explaning that such treatment was subject to a supplementary payment. The doctor arranged for the applicant’s examination by a dermatologist on 1 August 2000. According to the applicant, the latter refused to treat him as he considered that the applicant was not suffering from any disease.
The applicant further submits that he has not been provided with adequate health care as he has no sickness insurance in the Czech Republic.
The Government contest the applicant’s allegations and submit that all prisoners are provided with adequate health care, the cost of which is born, when a prisoner is indigent, by the prison administration. They also refer to the conclusions of a medical commission according to which there were no shortcomings in the health care offered to the applicant.
The prison authorities refused to provide the applicant with a taperecorder and other facilities which he requested so that he could study foreign languages.
In accordance with the prison regulations, the money which the applicant had on his prison account was used, to the extent that it exceeded the statutory minimum reserved to cover a prisoner’s basic needs, to pay the applicant’s debts relating to the criminal proceedings and the enforcement of the prison sentence.
The applicant claims that his right to contact persons outside the prison and to receive visitors was unduly limited.
This is contested by the Government who maintain, with reference to a letter from the Director General of the Prison Administration dated 26 January 2001, that the applicant’s requests for visits by his legal representative, members of his family and other persons close to him had always been granted.
On 12 February 2001 Mr W.F., a German national assisting the applicant in the proceedings before the Court, informed the Court that the applicant had been subjected to inhuman treatment as a reprisal for his complaints to the Court. The letter indicated that on 5 January 2001 the applicant had had to undress in a cold room and was searched by several prison officers. Subsequently the applicant was disciplined by confinement in a special cell for three days where the conditions were inhuman. After filing a written complaint about this with the prison director, he was disciplined with a further three days’ confinement in the special cell. During this period, the authorities searched and removed the applicant’s belongings.
The Government contest these allegations. They maintain, with reference to the relevant prison documents and statements by the prison officers, that the applicant was disciplined on 5 January 2001 by being placed in a closed prison wing for three days except when participating in the collective activities organised within the prison. The disciplinary sanction was imposed as the applicant had been late for breakfast on 4 January 2001.
The applicant wrote a remark on the disciplinary form, explaining that he had not known that he could not go to the dining room after the expiry of the breakfast period. The form, which the applicant refused to sign, indicates that he did not file a complaint against the decision within the statutory three day time-limit. The sanction was enforced from 12 to 15 January 2001. On 29 March 2001 the prison administration deleted it from the applicant’s prison record in view of his subsequent good behaviour.
Following the Court’s decision to communicate this part of the application to the respondent Government, the applicant was asked on 19 April 2001 to explain his complaints to the Court. Reference was made to Regulation no. 150/1958. The prison administration drew up a record of the ensuing meeting which was signed by the applicant, according to which the applicant denied the aforementioned allegations by Mr W.F. and stated that he was no longer in contact with him. The applicant also stated that his complaints were sufficiently clear and specific and that he would make no further comments on them to the prison administration.
The Government deny that any documents were taken away from the applicant by the prison administration in the context of the disciplinary sanction imposed on him. They refer to written statements by two prisoners indicating that the applicant had left his documents with them before he was placed in the closed wing and that he had recuperated them afterwards. The documents were neither read nor removed by anybody, and the applicant never made any remarks about this to the prisoners concerned.
On 30 May 2001 the applicant was disciplined with five days’ imprisonment in the closed wing for repeatedly disobeying a prison officer who had asked him to move to a different cell. The applicant filed a complaint which was dismissed by the prison administration on 4 June 2001.
The applicant was placed in the closed wing on 30 May 2001 at 9.30 p.m. According to him, he was distressed and collapsed when he was put in the cell which was insalubrious. The prison officers failed to call a doctor.
These allegations are denied by the Government. They refer to a record drawn up by the the prison officer who had placed the applicant in the closed wing on 30 May 2001, according to which the applicant had refused to co-operate in drafting a list of his belongings which were to be stored separately. The prison officer checked on the applicant several times during the night and the applicant had not complained of any pains, or shown any signs of illness. The officer categorically denied the applicant’s allegation that he had lost consciousness.
On 31 May 2001 the applicant repeatedly refused to participate in the elaboration of a list of his belongings which was to be drawn up, in accordance with the regulations, in the context of his placement in the closed wing. Four prison officers therefore drew up and signed such a list indicating where the applicant’s items had been placed. The applicant refused to sign it.
On 1 June 2001 the applicant asked the prison officers to send a telegram to the Court which read: “S.O.S! Torture! Punished again!”. The request was dismissed with the explanation that the applicant’s means did not suffice for paying the postage. As the telegram indicated that the applicant had been tortured, the prison administration handed the case over to the police. The applicant refused to co-operate with the latter, alleging that they were a part of the system against which he complained. Subsequently an investigation was carried out by the competent public prosecutor which did not disclose any violation of the applicant’s rights.
On 4 June 2001 a disciplinary sanction of five days in the closed wing was imposed on the applicant for failure to co-operate in preparing the list of his belongings. The applicant did not file a complaint.
On 5 June 2001 the applicant was hospitalised in the prison ward as he had health problems.
According to a record of 6 June 2001, the applicant’s belongings were sealed in the presence of eight prison officers and placed in storage until their withdrawal by the applicant. In a letter of 21 August 2001 the applicant informed the Court that his documents had been returned to him in disorder.
On 9 August 2001 the prison authorities asked the applicant to provide more detailed information about the object of his complaints with reference to Regulation no. 150/1958. According to the record which was signed by him, the applicant stated that he would not comment on his complaints to the Court as they were directed against the Czech Republic. The applicant concluded that it was for the Czech Government to submit their reply to the Court.
In a letter delivered on 14 January 2002 the applicant informed the Court that, on 10 December 2001, the prison officers had checked his belongings and that he had subsequently been taken to the closed wing where he was kept for 48 hours. According to the applicant, he was not provided with toilet paper, soap or a tooth brush. The applicant states that his files and documents were “devastated” and cannot be used anymore.
On 7 May 1996 the German authorities informed the Czech State Attorney’s Office that several persons including the applicant were suspected of offences and asked the Czech authorities for assistance.
On 25 August 1998 the Leipzig public prosecutor informed the applicant that the German authorities could not provide him with legal assistance in respect of the criminal proceedings against him in the Czech Republic. The letter further stated that the prosecutor would decide whether or not he would issue an international arrest warrant against the applicant and request his extradition to Germany after the delivery of the final decision by the Czech courts.
Subsequently, the German authorities requested that the applicant be extradited to Germany. In a letter of 30 August 2001 the applicant’s father was informed that the Czech Minister of Justice had agreed to the applicant being extradited to Germany after serving his prison sentence.
On 14 May 2001 the applicant complained to the German General Prosecutor’s Office that his prosecution in Germany would be contrary to the principle of ne bis in idem.
Following the applicant’s accusation of fraud and other offences, the Leipzig Regional Prosecutor appointed a lawyer on 8 August 2001 to represent the applicant ex officio in the proceedings in Germany.
Article 10 provides that the ratified and promulgated international treaties on human rights and fundamental freedoms, by which the Czech Republic is bound, shall be applicable as directly binding regulations having priority over the law.
According to Article 3 § 1, fundamental human rights and freedoms are guaranteed to everybody irrespective of sex, race, colour of skin, language, faith, religion, political or other conviction, ethnic or social origin, membership of a national or ethnic minority, property, birth, or other status.
According to Article 8 §§ 1 and 2, personal liberty is guaranteed. Nobody shall be persecuted or deprived of their liberty save for reasons and in a manner prescribed by law.
Article 10 §§ 1 and 2 provides inter alia that everybody is entitled to the protection of his or her human dignity or personal integrity, and against unauthorised interference with private or family life.
According to Article 13, nobody may violate the confidentiality of correspondence or other papers and records, whether privately kept or sent by post or in another manner, except in cases and in a manner specified by law.
Article 31 guarantees inter alia to everybody the right to the protection of his or her health.
Article 36 provides that everybody can claim his or her rights in a prescribed manner before an independent and impartial tribunal or, in certain cases, before another organ.
According to Article 38, everybody is entitled to a fair and public hearing within a reasonable time, in his or her presence, and to comment upon all the evidence submitted.
Section 72(1)(a) provides that a constitutional appeal may be introduced by any natural person who claims to be the victim of a breach of the fundamental rights or freedoms recognised in a constitutional law or an international treaty (Article 10 of the Constitution) by a legitimate decision taken in proceedings to which he or she was a party, and being a measure or interference by ‘a public authority’. According to paragraph 2, a constitutional appeal shall be submitted within a period of sixty days. If the law affords a remedy for the protection of rights, this period starts to run on the day when the final effective decision becomes enforceable or, if no such remedy exists, on the day on which the impugned events occurred.
According to section 75(1), a constitutional appeal is inadmissible if the person concerned failed to exhaust all the procedural remedies available in law for the protection of his or her rights.
Section 30(1) provides that the appellant must be represented by an advocate, a commercial lawyer or a notary to the extent provided for in the relevant special law.
Section 34(1) provides that a constitutional appeal shall be submitted in writing to the Constitutional Court. The appeal shall include the following information: the person who is making the appeal, the matter to which it relates, and its object. The appeal must be signed and dated. Furthermore, it shall include a true description of the crucial facts, indicate the evidence which the appellant will introduce, and specify the claim. The appeal shall contain the other elements required by this Act. According to paragraph 2, the appeal shall be submitted in a sufficient number of copies so that the Constitutional Court as well as each party to the appeal may have a copy.
According to section 82, in its judgment the Constitutional Court shall hold that it allows the constitutional appeal in its entirety, dismisses it in its entirety, or partially allows and partially dismisses it. If the court allows the constitutional appeal, it shall inter alia declare in its judgment which of the constitutionally guaranteed rights or freedoms or which provision of a constitutional act or an international treaty were violated, and what act by a public authority perpetrated the violation. If it allows the constitutional appeal of a natural person, the court shall annul the contested decision of the public authority, or, if a constitutionally guaranteed fundamental right or freedom has been violated as a result of an action by a public authority other than a decision, the court shall order the authority to discontinue the violation and order it, to the extent possible, to restore the situation to that which existed prior to the violation.
Article 41 provides that a lawyer is obliged to provide legal assistance to the accused person, to use effectively all lawful means of defence and, in particular, take care that all relevant facts be established which prove the accused person’s innocence or attenuate his or her culpability.
Pursuant to section 17(3), correspondence between a prisoner and inter alia a lawyer appointed to represent him or her, public authorities of the Czech Republic or an international organisation which is competent to examine submissions concerning the protection of human rights on the basis of an international treaty by which the Czech Republic is bound, shall not be subjected to any control. Such correspondence shall be sent to the addressee and delivered to the prisoner without delay.
Section 18 provides that a prisoner shall be allowed, in justified cases, to use a telephone with a view to contacting a close person. When it is in the interests of his or her rehabilitation or for other serious reasons, the prisoner may also be allowed to contact other persons by telephone. The costs of such calls are to be born by the prisoner and the prison administration is authorised to control the contents of the conversation.
Under section 25(4), a prisoner who has failed to pay inter alia the costs and expenses relating to the criminal proceedings against him or her, or damage caused to the prison administration in the course of the enforcement of the prison sentence, may only use his or her money deposited with the prison for buying basic hygienic items, for paying such debts or judicial and administrative fees, or for the cost of health care.
Section 26(1) provides that a prisoner has a right to file complaints and requests to the competent authorities in order to enforce the rights and interests protected by law.
Pursuant to Section 26(3), a prisoner is entitled to assistance by a lawyer. The latter shall be allowed to correspond with the prisoner, within the limits of his authority, and to talk to him or her in the absence of another person.
Section 35(1) provides that a convicted person is obliged to pay the costs of the enforcement of his or her prison term. If need be, the prison administration may use the prisoner’s money deposited in the prison for this purpose.
According to section 79, the medical expenses in respect of an uninsured prisoner are to be met by the prison service.
Section 34(1) and (2) provide that a prisoner has a right to submit complaints and requests to national authorities or such international authorities and organisations which are considered, on the European and world level, to be part of the process of gathering and examining information concerning violations of human rights including the European Court of Human Rights.
Pursuant to section 16(1), an advocate is obliged to defend the justified interests of his or her client and to respect the latter’s instructions unless they are contrary to the law or the rules of the legal profession. In such a case, the advocate shall advise the client accordingly.
Under Section 16(2), an advocate shall act honourably and in good faith. He or she shall consistently use all lawful means available which, according to his or her belief, may be to the client’s benefit.
Section 18(2) provides that everyone has the right to legal representation. Those who cannot find legal representation may ask the Bar Association to appoint an attorney.
According to section 12, the Bar Association may decide that the remuneration of the lawyer’s fees shall be reduced or waived if it assigns a lawyer to a person who could not find legal services and his or her social and financial situation justifies such a decision.
Government Regulations on Dealing with Complaints, Submissions and Petitions (Decree no. 150/1958)
Section 6(1) provides that all complaints shall be examined thoroughly and without delay.
Pursuant to section 9, a written record shall be drawn up of the oral examination of a complaint. It shall comprise the names of all persons present, a summary of the conversation and its outcome, and also indicate that the persons present were acquainted with the record. It shall be signed by the persons involved who may, if need be, indicate in writing that they disagree with the contents and state the reasons therefor.


ITEMID: 001-81922
LANGUAGEISOCODE: ENG
RESPONDENT: AUT
BRANCH: CHAMBER
DATE: 2007
DOCNAME: CASE OF SCHUTTE v. AUSTRIA
IMPORTANCE: 3
CONCLUSION: Violation of Art. 6-1;Violation of Art. 13;Remainder inadmissible;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses (domestic proceedings) - claim dismissed;Costs and expenses partial award - Convention proceedings
JUDGES: Christos Rozakis
TEXT: 4. The applicant was born in 1963 and lives in Ostermiething.
5. In the early hours of 5 October 1997 the applicant drove a car through a village. Police officers required him to stop by giving a sign with a red light. The applicant disregarded their sign and drove on, obliging the police officers to step aside.
6. On 21 November 1997 the Ried im Innkreis Public Prosecutor's Office charged the applicant with resisting the exercise of official authority (Widerstand gegen die Staatsgewalt) under Article 269 § 1 of the Criminal Code (Strafgesetzbuch) in that he had prevented the police officers from carrying out a traffic control by driving towards them with his vehicle, thus threatening them with bodily harm.
7. On 12 December 1997 the Ried im Innkreis Regional Court (Landesgericht), having held a trial, acquitted the applicant of the above charge. As neither party appealed, the judgment became final.
8. By letter of 29 January 1998 the Braunau District Administrative Authority (Bezirkshauptmannschaft) charged the applicant with failure to comply with a request to stop for the purpose of a traffic control contrary to Section 97 § 5 of the Road Traffic Act (Straßenverkehrsordnung).
9. The applicant submitted his defence on 4 February 1998, asserting in particular that the conduct of proceedings for the said traffic offence violated Article 4 of Protocol No. 7, given that he had been acquitted of the offence of resisting the exercise of official authority in respect of the same act.
10. On 11 March 1998 the District Administrative Authority issued a penal order (Straferkenntnis) against the applicant finding him guilty of the offence under Section 97 § 5 in conjunction with Section 99 § 3 (a) of the Road Traffic Act, and imposed a fine of 4,000 Austrian schillings on him (approximately 290 euros) with 6 days' imprisonment in default. Furthermore, it ordered the applicant to pay a contribution to the costs of the proceedings.
11. Upon the applicant's appeal, the Upper Austria Independent Administrative Panel (Unabhängiger Verwaltungssenat) held a hearing on 17 September 1998 at which it heard the applicant and the three police officers concerned.
12. By decision of 15 December 1998 the Independent Administrative Panel dismissed the applicant's appeal. It noted that the applicant admitted to having disregarded the police officers' request to stop. It dismissed his argument that his conviction under the Road Traffic Act violated the ne bis in idem principle. The offence under Section 97 § 5 of the Road Traffic Act concerned a simple omission, namely the failure to comply with a request to stop for the purpose of a traffic control whereas Article 269 § 1 of the Criminal Code required the use of dangerous threat or force. It followed from the court file and from the police officers' statements that the applicant had been acquitted of resisting the exercise of official authority, as it had not been shown that he had driven towards the police officers and thus threatened them with bodily harm. In sum, the two offences were distinct and the applicant's acquittal under Article 269 § 1 of the Criminal Code did not hinder his conviction under Section 97 § 5 of the Road Traffic Act.
13. On 8 February 1999 the applicant lodged a complaint with the Constitutional Court (Verfassungsgerichtshof). The Independent Administrative Panel submitted observations in reply on 24 March 1999.
14. On 19 June 2000 the Constitutional Court dismissed the applicant's complaint as being unfounded. Referring to the Court's judgment in the case of Oliveira v. Switzerland (30 July 1998, Reports of Judgments and Decisions 1998V), it found that the present case concerned an example of a single act constituting more than one offence (Idealkonkurrenz) which was in itself not contrary to Article 4 of Protocol No. 7. Further, it confirmed the Independent Administrative Panel's view that the offences at issue differed in their constituent elements.
15. Upon the applicant's request the Constitutional Court referred the case to the Administrative Court (Verwaltungsgerichtshof) by decision of 17 August 2000.
16. The latter requested the applicant to supplement his complaint on 2 October 2000. The applicant complied with that request on 8 November 2000. He reiterated his complaint about a violation of the ne bis in idem principle and requested the Administrative Court to hold a hearing. On 11 April 2002 the Administrative Court requested the Independent Administrative Panel to submit observations. The latter did so on 23 May 2002.
17. On 20 December 2002 the Administrative Court refused to deal with the applicant's complaint pursuant to Section 33a of the Administrative Court Act (Verwaltungsgerichtshofgesetz) as the fine imposed did not exceed 726 euros and the case did not raise an important legal issue.
18. The decision was served on the applicant's counsel on 31 January 2003.
19. Article 269 § 1 of the Criminal Code (Strafgesetzbuch) provides as follows:
“Anyone who hinders the authorities in the performance of an official act through the use of force or the threat of force, or who hinders an official in the performance of his or her duties through the use of force or dangerous threat, shall be liable to a prison sentence of up to three years...”
20. Section 97 § 5 of the Road Traffic Act (Strassenverkehrsordnung) reads as follows:
“Traffic officers may, by the use of clearly visible or audible signs, request a driver to stop for the purposes of carrying out checks on the driver or the vehicle, for the accomplishment of other official acts relating to the driver or a passenger or for the purposes of road traffic analysis (such as a traffic count). The driver of the vehicle must comply with the request.”
Section 99 § 3 (a) in the version in force at the material time provided for a fine of up to 10,000 Austrian schillings with up to two weeks' imprisonment in default.
VIOLATED_ARTICLES: 13
6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-23972
LANGUAGEISOCODE: ENG
RESPONDENT: NLD
BRANCH: ADMISSIBILITY
DATE: 2004
DOCNAME: CORNELIS v. the NETHERLANDS
IMPORTANCE: 1
CONCLUSION: Inadmissible
TEXT: The applicant, Arnold G. Cornelis, is a Netherlands national, who was born in 1940 and is currently serving a prison sentence in the Netherlands. He was represented before the Court by Mr A.A. Franken, a lawyer practising in Amsterdam.
The facts of the case, as submitted by the applicant, may be summarised as follows.
On 16 December 1996 a criminal investigation under the code name “Carex” was opened into several cocaine shipments, which resulted in the seizure of a large quantity of cocaine on 4 June 1997 as well as in the arrest of Mr Z. and another suspect. In July and August 1997, after Mr Z. had indicated his interest in coming to an arrangement with the public prosecution service, the Haarlem public prosecutor Mr A., who was responsible for the supervision of the activities of the Criminal Intelligence Service (Criminele Inlichtingen Dienst – "CID"), explored the possibilities of reaching an arrangement whereby Mr Z. would give statements about others involved in cocaine trafficking in exchange for a reduced sentence. Although no such arrangement was reached in the end, Mr Z. did – in the course of the negotiations – give statements about, among others, the applicant who had not been a suspect in the Carex investigation. These statements were recorded on tape.
By judgment of 28 May 1998, the Haarlem Regional Court (arrondissementsrechtbank) convicted Mr Z. of involvement in the importation of 160 and 400 kilograms of cocaine and sentenced him to eight years' imprisonment. He was acquitted in so far as the charges related to a shipment of 700 kilograms of cocaine. Ms C., the Haarlem public prosecutor in charge of the prosecution of Mr Z. before the Regional Court, filed an appeal. The appeal was however withdrawn on 7 October 1998.
In the framework of further negotiations, which started in June 1998, between the public prosecutor Mr B. of the National Organised Crime Prosecution Service (Landelijk Parket) and Mr Z. on a possible arrangement, Mr Z. gave statements on 5 June, and on 2, 3, 4, 6, 7, and 8 July 1998 about, among others, the applicant. In these statements, Mr Z. admitted that he had been involved in the shipment of the 700 kilograms of cocaine of which he had been acquitted.
After having obtained the advice of the Central Advisory Commission (Centrale Toetsingscommissie – “CTC”) of the public prosecution service (openbaar ministerie), as required by the Directive on arrangements with criminals (Richtlijn afspraken met criminelen) of 13 March 1997, the Board of Procurators General (College van procureursgeneraal) approved the arrangement with Mr Z. The arrangement was formally concluded and consigned to writing on 6 November 1998.
This arrangement stipulated inter alia that, in exchange for further truthful statements by Mr Z. on his own role and that of, among others, the applicant in drug trafficking, the public prosecution service would make a positive recommendation that Mr Z.'s request for a partial pardon (gratie) be granted. Furthermore, in the context of the proceeds of crime proceedings against Mr Z., it would make a proposal for a settlement within the meaning of Article 511c of the Code of Criminal Procedure (Wetboek van Strafvordering) to the effect that Mr Z. would pay the State 200.000 Netherlands guilders [90,756.04 euros] (“NLG”) for illegally obtained gains.
On 10 March 1998, the applicant was taken into police custody (inverzekeringstelling) on suspicion of involvement in the importation of hashish via Sri Lanka. On the basis of statements given by Mr Z. in the context of the arrangement of 6 November 1998, additional suspicions arose in respect of the applicant concerning his involvement in the importation of large quantities of cocaine. The applicant was eventually summoned to appear before the Amsterdam Regional Court to stand trial on charges of participation in and directing a criminal organisation involved in the importation of cocaine, participation in and directing a criminal organisation involved in the importation of hashish, importation via Belgium of 94, 84, 200, 150, 400 and/or 700 kilograms of cocaine, and (attempted) importation via Sri Lanka of 10,150 kilograms of hashish.
In its judgment of 4 June 1999, following adversarial proceedings in the course of which four hearings were held between 22 February and 21 May 1999 and in which it had assessed the reliability of the written and oral evidence of Mr Z. in light of the arrangement of 6 November 1998 and had accepted the lawfulness of this arrangement, the Amsterdam Regional Court convicted the applicant of participation in a criminal organisation involved in the importation via Belgium of cocaine, participation in and directing a criminal organisation involved in the importation of hashish via Sri Lanka, importation of very large quantities of cocaine and 10,150 kilograms of hashish, and sentenced him to six years' imprisonment and payment of a fine of NLG 500,000 [226,890.11 euros]. The applicant filed an appeal with the Amsterdam Court of Appeal (Gerechtshof).
Between 17 January and 26 October 2000, eighteen hearings were held before the Amsterdam Court of Appeal. In the course of the proceedings the following relevant events occurred.
At the hearing held on 17 January 2000, the Court of Appeal agreed to summon eighteen of the fifty witnesses proposed by the applicant, including Mr Z., various officials of the public prosecution service, cosuspects and other witnesses. It rejected the applicant's request to add to his case file copies of the Carex investigation documents, including the prosecution's closing speech and appeal submissions in the criminal proceedings against Mr Z. as well as all documents relating to the proceeds of crime investigation against Mr Z. The Court of Appeal held that the defence could question the Haarlem public prosecutor Ms C., who had been summoned at the request of the defence to give evidence before the Court of Appeal, on the criminal investigation and proceedings taken against Mr Z. As to the applicant's request that all documents on the arrangement concluded with Mr Z. be included in his case file, the Court stated that it assumed that all these documents were already so included. The Court of Appeal requested the advocate-general in charge of the applicant's prosecution before the Court of Appeal to verify whether this assumption was correct and whether, for reasons linked to the interests of the investigation and/or the safety of others, there remained objections to rendering legible passages in these documents that had been rendered illegible. It further rejected the applicant's request that all correspondence between Mr Z.'s lawyer and the prosecution authorities be included in his case file as it had not been demonstrated by the applicant that Mr Z. and his lawyer had no objections to the disclosure of these privileged documents.
The Haarlem public prosecutor Mr A. gave oral evidence before the Court of Appeal on 31 January and 3 July 2000. He denied that the applicant had been a suspect in the Carex investigation, which had concerned another suspect. He further stated that statements given by Mr Z. in the context of the first attempt to reach an arrangement – the CTC not having been involved in that attempt – had been recorded on tape. Although that tape should have been destroyed as no arrangement had been reached, it was still in existence. He further testified that he had not been involved in the further round of negotiations with Mr Z. on a possible arrangement. As to the reasons for the withdrawal of the prosecution's appeal against the judgment of 28 May 1998 in the case of Mr Z., Mr A. testified that this appeal had been filed because the prosecution had considered that there was sufficient evidence to convict Mr Z. also of the shipment of 700 kilograms of cocaine and that the sentence imposed was too low. However, after the Amsterdam advocate-general Ms D. – who at the material time had been unaware of the further negotiations with Mr Z. on a possible arrangement – had concluded that this appeal would stand no chance of success, it had been withdrawn. The withdrawal of the appeal as part of the arrangement with Mr Z. had never been a topic of discussion. He further denied ever having spoken with Ms D. about whether an appeal in the case of Mr Z. was opportune or feasible.
The public prosecutor Mr B. gave oral evidence before the Court of Appeal on 31 January and 17 February 2000, in particular on the arrangement concluded with Mr Z. and the procedural steps taken in this context. In reply to questions on a possible link between the withdrawal of the prosecution's appeal against the judgment of 28 May 1998 and this arrangement, Mr B. stated that he had told the Haarlem public prosecutor Ms C. that it would be convenient to file an appeal since this might induce Mr Z. to give a statement. He had never spoken with the advocate-general Ms D. about the chances of success of such an appeal, nor with Ms C. about the withdrawal of the appeal. He had informed the CTC of Mr Z.'s wishes in relation to a possible arrangement and that – on the basis of information he had subsequently obtained and verified –the Haarlem public prosecution department was prepared to withdraw the appeal. However, the Haarlem chief public prosecutor Mr H., apparently having changed his opinion, had subsequently informed the CTC President that he opposed the withdrawal of the appeal. This had given rise to an exchange of correspondence on whether Mr B. had misinformed the CTC. As Mr B. had not submitted this correspondence, the Court of Appeal – acting on a request by the defence – ordered him to submit the correspondence to the advocategeneral for inclusion in the applicant's case file. This correspondence was subsequently added to the applicant's case file. In so far as passages in the CTC documents had been rendered illegible, Mr B. pointed out that, according to the covering CTC letter of the acting CTC President of 8 February 2000, this had been done for the protection of others and the needs of the investigation interests. Mr B. further stated that he had been involved in the determination of what passages should be rendered illegible and that he subscribed to the reasons given by the acting CTC President for rendering these passages illegible. Mr B. refused to answer the question whether these passages concerned investigations – whether on-going or not yet opened – against other suspects.
In the course of Mr B.'s hearing before the Court of Appeal on 17 February 2000, the Court of Appeal examined a request of the defence to order the full disclosure of all passages rendered illegible in the CTC documents submitted to the Court of Appeal. The defence argued that these passages might contain unknown information intended to convince the CTC of the necessity to conclude an arrangement with Mr Z. After having deliberated, the Court of Appeal rejected this request, holding:
“The request of the defence is rejected and the witness [Mr B.] is not obliged to answer questions about the contents of the passages rendered illegible in the CTC documents. The court notes that it does not have the impression that on this point relevant information has been withheld by the witness, and that it must assess the arrangement on the basis of the available material in the case file, irrespective of the contents of the passages rendered illegible in the CTC documents.”
At the hearing held on 7 February 2000, the financial police detective Mr F. was heard before the Court of Appeal. He testified that he had carried out a proceeds of crime investigation into Mr Z. in the context of the Carex investigation and that the Carex investigation had not been directed against the applicant but against other suspects. He had not completed the proceeds of crime investigation into Mr Z., as Mr J. of the National Criminal Investigation Team (Landelijk Rechercheteam) had informed him in the spring or summer of 1998 that this investigation could be brought to a halt. He was of the opinion that, on that occasion, Mr J. had told him that the public prosecutor Mr B. would conclude an arrangement with Mr Z.
Mr Z. gave extensive oral evidence before the Court of Appeal on 10 and 14 February, 13, 17 and 27 April, and 22 May 2000. He confirmed having given about ten statements in July 1998 in the context of his arrangement with the prosecution authorities. He declared that he maintained these statements. Mr Z. also confirmed that earlier statements given by him to Mr A. had been recorded on tape.
At the hearing held on 14 February 2000, the defence requested that the tape-recorded conversations between Mr Z. and Mr A. be played to the Court of Appeal. Mr Z. indicated that he objected to this. Having deliberated, the Court of Appeal decided:
“... that, on the assumption that Mr Z. will give his permission, the tapes must be submitted on the understanding that the court prefers to play these tapes in private.”
At the hearing held on 13 April 2000, the defence reiterated its request to have the tapes played in public. The President of the Court of Appeal indicated that the decision previously taken by the Court of Appeal to play the tapes in private had also been influenced by Mr A.'s view that – in conformity with his agreement with Mr Z. – the contents of the taperecorded questionings would not be made public if no arrangement was reached as well as by the position adopted by Mr Z. on the matter. The latter indicated that he would withdraw his permission to allow the tapes to be played if they were to be played in public. The applicant's lawyer then informed the Court of Appeal that, in these circumstances and in the interests of the defence, he withdrew the request to have the tapes played in public. The Court of Appeal then ordered that the tapes be played in private, expressly pointing out that it had decided to listen to these tapes for the purpose of assessing the reliability of Mr Z.
The tapes containing the statements given by Mr Z. on 30 and 31 July 1997 were played to the Court of Appeal, sitting in private and in the presence of the parties, during its hearings on 13, 17 and 23 April and 22 May 2000. In his statements recorded on tape, Mr Z. mentioned a person he had called “Taartman” (pastry man) and, some time later, mentioned the applicant by name. In his oral evidence to the Court of Appeal, Mr Z. explained that, at the material time, he had not known that the applicant was the person known as “Taartman” and that the detectives who questioned him had told him that the applicant was “Taartman”.
The Amsterdam advocate-general Ms D. gave oral evidence on 17 February 2000, in particular on her involvement in the appeal brought by the prosecution against the judgment of 28 May 1998 in the case of Mr Z. She stated that the Haarlem public prosecutor Mr A. had sought her views, in her capacity as the contact advocate-general for the Haarlem regional public prosecution department, on the chances of the appeal succeeding. She had not known then that the Haarlem public prosecutor Ms C. had been in charge of the prosecution of Mr Z. before the Regional Court or that Mr A. was involved in CID activities. She recalled that, in her telephone conversation with Mr A., the word “deal” had been mentioned and that no deal had been concluded. She had not pursued this topic and had no knowledge about the contents of any deal with Mr Z. After having discussed the case with Mr A. over the telephone, she had concluded that an appeal against the judgment of 28 May 1998 would stand no chance of success as there was insufficient evidence to support the facts of which Mr Z. had been acquitted. She had never seen an appeal memorial of the prosecution in that case and explained that such a memorial only became important once the decision had been taken to pursue an appeal. She did not know that the appeal had in fact been withdrawn and that, in the context of an arrangement, Mr Z. had made about ten statements. She further had not had any contacts with the CTC about Mr Z.'s case.
When heard before the Court of Appeal on 21 February 2000, the Haarlem public prosecutor Ms C. declared that the applicant had never appeared as a suspect in the Carex case. She had dealt with that case until October 1998 when she had fallen ill for about one year. To her knowledge, the CID public prosecutor Mr A. had not had any involvement in the Carex case. At one point she had heard from Mr A. that he was having talks with Mr Z. about a possible arrangement. She and Mr A. had then agreed that Mr A. would deal with the arrangement and that she would handle the criminal proceedings against Mr Z., and that Mr A.'s dealings as regards an arrangement would in no way influence her handling of the criminal proceedings. However, at the first court hearing in the criminal proceedings against Mr Z., his lawyer had made references to an arrangement which had caused some consternation. After this experience, she took the view that an arrangement was not desirable as it could jeopardise the criminal proceedings. She had filed an appeal against the judgment of 28 May 1998 because she had felt that there was sufficient evidence, albeit difficult to assemble, of Mr Z.'s involvement in the shipment of the 700 kilograms of cocaine of which he had been acquitted and because she had found that the sentence imposed was too low. She had prepared an appeal memorial, which she could submit to the Court of Appeal. After she had filed the appeal, she had been contacted by Mr B. who had told her that negotiations were being held with Mr Z. about a possible arrangement. Until that point, she had been unaware of these further negotiations on an arrangement and, in her opinion, an appeal could only be withdrawn on legal grounds. Mr B. had also asked her about the proceeds of crime investigation against Mr Z. which, at that time, had not yet been completed. She had informed her superior, the Haarlem chief public prosecutor Mr H., about her conversation with Mr B., indicating to Mr H. that she felt that this development was not the proper way to go. Mr H. had agreed with her and had taken up the issue with someone else. She did not know the name of that person. She did not remember having been contacted by Mr B. before she had filed the appeal and she had only filed the appeal because she disagreed with the Regional Court's judgment and definitely not on the basis of a conversation with Mr B. Considering the case to be a rather special one, Ms C. had contacted the Amsterdam advocate-general Ms D., who had told her that she considered an appeal pointless. After internal discussions and on the basis of Ms D.'s opinion, the appeal had been withdrawn. Ms C. explained that in such a situation, it was common for an appeal to be withdrawn. Ms C. found highly surprising Ms D.'s evidence that she had never seen an appeal memorial in the case of Mr Z. as, following Ms D.'s request, she had sent her this document by fax.
A report dated 25 March 2000 prepared by Mr A., accompanied by the formal record of the questioning of Mr Z. on 30 and 31 July 1997, and the appeal memorial prepared by Ms C. in the case of Mr Z. were submitted to the Court of Appeal and added to the applicant's case file on 13 April 2000.
At the hearing held on 3 July 2000, the defence requested inter alia to have access to the Carex investigation case file in order to verify the documents from that file that might be of relevance for the applicant's case. The defence stated that it filed this request in order to be able to assess the chances of success of an appeal in the case of Mr Z. in connection with the withdrawal of that appeal. Having deliberated, the Court of Appeal rejected this request, holding:
“the request is rejected as the court fails to see in what way granting it can contribute – further – to any decision that must be taken by the court in the present case since – whatever may be of the withdrawal of the appeal in the case of Mr Z. – it has not been established that this has taken place for the purposes of obtaining unreliable or incorrect statements from him.”
In its judgment of 9 November 2000, the Court of Appeal quashed the Regional Court's judgment of 4 June 1999, convicted the applicant of participation in a criminal organisation having as its aim the importation of cocaine, participation in a criminal organisation having as its aim the importation of hashish and directing that organisation, repeated participation in offences under Article 2 § 1A of the Opium Act (Opiumwet) and participation in an attempted offence under Article 3 § 1A of the Opium Act. The court sentenced the applicant to nine years' imprisonment.
The Court considered at length the arguments raised by the defence to the effect that the arrangement concluded between the public prosecution service and Mr Z. was unlawful under domestic law. The Court of Appeal acknowledged the fact that the applicant's case file contained no record of the conversations and negotiations between Mr Z. and the public prosecution service, nor of the correspondence between his lawyer and the public prosecution service on the arrangement made with Mr Z. However, it found that these conversations and negotiations had been sufficiently clarified in the course of the appeal proceedings. After having examined the circumstances in which the arrangement had been concluded as well as the terms thereof, it concluded that, despite certain shortcomings, the arrangement was in conformity with the 1997 Directive on arrangements with criminals and was not contrary either to the principles governing the proper conduct of proceedings or the requirements of Article 6 of the Convention.
The Court of Appeal observed that there had been shortcomings, including: the failure to carry out any primary criminal investigation against the applicant; the fact that the public prosecutor Mr B. had unjustly given the CTC the impression that the statements of Mr Z. might shed further light on the “IRT affaire” [See, for further details, T.D. v. the Netherlands, no. 31127/96, Commission decision of 14 January 1998]; the absence of a written record of the conversations and negotiations with Mr Z. on a possible arrangement; the – failing an adequate recording – unclear course of events in relation to the filing and the withdrawal of the appeal in the criminal proceedings against Mr Z; the fact that a passage in the letter of 28 August 1998 from Mr B. to the chief public prosecutor had been rendered illegible whereas, after its disclosure, this passage had appeared to be relevant to the procedure for the establishment of the arrangement and was significant for the contents of that arrangement and had not been rendered illegible for reasons linked to the interests of the investigation; and the premature termination by the public prosecution service of the proceeds of crime investigation initiated against Mr Z.
However, the Court of Appeal held that it could not be said that these shortcomings constituted such serious breaches of the principles governing the proper conduct of proceedings that the applicant's right to a fair trial had been harmed as a result. It did, however, find that these shortcomings, taken together, constituted a defect which, in accordance with Article 359a of the Code of Criminal Procedure, should be taken into account in the determination of the applicant's sentence.
On this basis it decided not to impose a ten years' prison sentence, which it considered to be appropriate in the circumstances, but to reduce the applicant's sentence to nine years' imprisonment.
The Court of Appeal based the applicant's conviction on statements given by Mr Z., whose evidence was found to be reliable, credible and supported by other evidence, on statements given by co-suspects and other witnesses, on several official (foreign and domestic) police reports, on findings of the Forensic Laboratory (Gerechtelijk Laboratorium), and on statements given by the applicant.
The applicant filed an appeal in cassation with the Supreme Court (Hoge Raad), submitting an extensive statement of grounds of appeal in cassation.
The Supreme Court gave judgment on 9 July 2002. It rejected the applicant's grounds of appeal in their entirety. Acting of its own motion, no such complaint having been raised by the applicant, the Supreme Court held that – given the delay between 9 November 2000, when the applicant had filed his appeal in cassation, and 29 January 2002, when it had commenced its examination of the appeal in cassation – the reasonable time requirement under Article 6 § 1 of the Convention had not been complied with. On that account, it quashed the sentence imposed on the applicant by the Court of Appeal and reduced it by six months.
As to the applicant's complaint that the Court of Appeal had unjustly ordered that the tape-recorded statements given by Mr Z. be played in private, the Supreme Court accepted the Court of Appeal's ruling on this point as legally correct and understandable, having regard also to the stance taken by Mr Z. on the matter and to the circumstance that, in the interests of the defence, the applicant's lawyer had withdrawn his request to have the recordings played in public.
In response to the applicant's complaints in respect of the arrangement between the public prosecution service and Mr Z., the Supreme Court rejected the applicant's argument that the lawfulness of the arrangement should have been examined on the basis of the Bill on undertakings given to witnesses in criminal proceedings. It held that, as the arrangement at issue had been made prior to the submission of that Bill to the Lower House of Parliament, the Court of Appeal had correctly examined the lawfulness of the arrangement under Article 6 of the Convention, the principles governing the proper conduct of proceedings and the 1997 Directive on arrangements with criminals. The Supreme Court further accepted as correct the conclusion of the Court of Appeal that the arrangement was lawful.
The Supreme Court rejected the remainder of the applicant's grounds of appeal, including his complaints that he was not granted access to the Carex investigation case file, to the passages rendered illegible in the so-called “CTC” documents and to the correspondence between the public prosecution department and Mr Z.'s lawyer. It based itself on the following summary reasoning:
“The remaining points of appeal do not provide grounds for overturning the judgment of the Court of Appeal (kunnen niet tot cassatie leiden). Having regard to Article 101a of the Judiciary (Organisation) Act (Wet op de rechterlijke organisatie), no further reasoning is called for, since these points of appeal do not give rise to a need for a determination of legal issues in the interest of legal unity and legal development.”
The Netherlands public prosecution service (openbaar ministerie) functions under the responsibility of the Minister of Justice, but is not an agency of the Ministry of Justice. It forms a part of the judiciary and its organisation is regulated by the Judiciary (Organisation) Act.
Pursuant to Article 134 of the Judiciary (Organisation) Act, the prosecution service consists of the National Office of the Public Prosecution Service (Parket-Generaal) which is composed of the Procurators General (procureurs-generaal) and their staff, the Regional Public Prosecution Services (arrondissementsparketten), the Public Prosecution Services at the Court of Appeal (ressortsparketten) and the National Organised Crime Prosecution Service (Landelijk Parket).
The public prosecution service is organised in a hierarchical manner and is headed by the Board of Procurators General (College van procureursgeneraal) which is composed of no less than three and no more than five Procurators-General. It determines the investigation and prosecution policy rules.
In criminal proceedings before the Regional Court, the functions of the prosecution are exercised by a public prosecutor (officier van justitie) acting under the supervision of a chief public prosecutor (hoofdofficier van justitie) and, in criminal proceedings before the Court of Appeal, by an advocategeneral (advocaat generaal) under the supervision of a chief advocate-general (hoofdadvocaat-generaal).
On 1 July 1983 the Board of Procurators General issued a circular in which guidelines were laid down on deals with criminals (Richtlijn deals met criminelen). Special agreements with criminals were only allowed in exceptional cases, in which the investigative interest or the ending or prevention of crimes outweighed the disadvantages of these kinds of agreements (cases of life and death or cases of similar seriousness). Furthermore, these agreements should be a last resort and only to be used if it were likely that the aim pursued could not be reached by other means. The information to be obtained had to be essential to the realisation of the aim. The offer in return could only be granted in cases where the information provided has proved to be sound.
In the early 1990s serious concerns arose over methods of criminal investigation used in cases concerning organised crime, including those used by an Interregional Criminal Investigation Team (Interregionaal Recherche Team – "IRT"). A parliamentary commission of inquiry (parlementaire enquêtecommissie) was instituted which presented its final report on 1 February 1996. In this report, inter alia, agreements concluded with suspects testifying against co-accused were criticised. The commission was of the opinion that these kinds of agreements should be explicitly regulated by law and should in no event be allowed to lead to complete immunity from prosecution. The Minister of Justice subscribed to this opinion.
On 1 April 1997, the 1983 Directive on deals with criminal was repealed and replaced by the Directive on arrangements with criminals (Richtlijn afspraken met criminelen) of 13 March 1997. This Directive was published in the Netherlands Government Gazette (Staatscourant) 1997, no. 61).
Pursuant to this Directive, a written record must be kept of every step taken in the procedure leading up to an arrangement between a criminal and the public prosecution service, and an arrangement can only be concluded after approval by the Board of Procurators General. Before giving its approval, the Board must consult the Central Advisory Commission (Centrale Toetsingscommissie – “CTC”), which is an internal advisory body of the Netherlands prosecution service. The CTC was established on 7 December 1994 and is composed of members of the public prosecution service and the police. Its task is to advise the Board of Procurators General on intended deployment of special investigative powers and methods (bijzondere opsporingsbevoegdheden en methodieken). The 1997 Directive further stipulates that the final decision on the lawfulness of an arrangement is to be made by the court before which the evidence that has been obtained on the basis of an arrangement is to be submitted.
On 17 November 1997, a Bill on undertakings given to witnesses in criminal proceedings (toezeggingen aan getuigen in strafzaken) was submitted for approval to the Lower House of Parliament. At the time of the introduction of the present application, this Bill was still pending before Parliament.
Article 101a of the Judiciary (Organisation) Act provides as follows:
“If the Supreme Court considers that a complaint does not provide grounds for overturning the judgment appealed against and does not require answers to questions of law in the interests of the unity or development of the law, it may, in giving reasons for its decision on the matter, limit itself to that finding.”