ITEMID: 001-114102
LANGUAGEISOCODE: ENG
RESPONDENT: HRV
BRANCH: CHAMBER
DATE: 2012
DOCNAME: CASE OF GRUBIĆ v. CROATIA
IMPORTANCE: 4
CONCLUSION: No violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention)
JUDGES: Anatoly Kovler;Elisabeth Steiner;Erik Møse;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Peer Lorenzen
TEXT: 4. The applicant was born in 1972 and lives in Zagreb.
5. On 8 May 2006 the applicant was arrested on suspicion of having committed armed robberies.
6. On 11 May 2006 an investigating judge of the Zagreb County Court (Županijski sud u Zagreb) opened an investigation in connection with a suspicion that the applicant and six other persons, acting as an organised criminal group, had committed more armed robberies, aggravated murders and attempted aggravated murders.
7. During the investigation the applicant was detained under Article 102 § 1(3) and (4) of the Code of Criminal Procedure (risk of reoffending and gravity of charges).
8. On 7 May 2007 the State Attorney’s Office for the Suppression of Corruption and Organised Crime (Državno odvjetništvo, Ured za suzbijanje korupcije i organiziranog kriminaliteta; hereinafter: the “State Attorney’s Office”) indicted the applicant and six other persons in the Zagreb County Court on charges of conspiracy to commit armed robbery and aggravated murder.
9. The applicant’s pre-trial detention was extended and he remained in detention throughout the trial.
10. On 17 April 2009 a three-judge panel of the Zagreb County Court extended the maximum statutory limit of the applicant’s detention under Article 109 § 1(5) of the Code of Criminal Procedure for a further six months. This decision was based on section 28(3) of the Office for the Suppression of Corruption and Organised Crime Act, which provides for a possibility to extend the maximum duration of pre-trial detention for a further six months in cases of corruption and organised crime.
11. On 21 April 2009 the Zagreb County Court found the applicant guilty of armed robbery and aggravated murder, and sentenced him to thirty years’ imprisonment. On the same day the trial panel of the Zagreb County Court ordered that the applicant be committed to prison under Article 102 § 4 of the Code of Criminal Procedure. The relevant part of the decision reads:
“The detention of the accused, Ognjeg Grubić, has been extended by decision of this court ... on 17 April 2009.
The accused has been sentenced to long-term imprisonment of thirty years.
Under Article 102 paragraph 4 of the Code of Criminal Procedure, detention shall always be ordered when a sentence of five or more years’ imprisonment is imposed.
... “
12. On 21 September 2009 the applicant lodged an appeal with the Supreme Court (Vrhovni sud Republike Hrvatske) against the first-instance judgment.
13. On 6 November 2009 a three-judge panel of the Zagreb County Court extended the applicant’s detention for a further nine months, basing its decision on Article 109 § 2 of the Code of Criminal Procedure. The relevant part of the decision reads:
“By the first-instance judgment of this court of 21 April 2009 ... the accused, Ognjen Grubić, was found guilty of offences under Article 218 § 2 of the [Criminal Code] and was sentenced to long-term imprisonment of thirty years ...
By order of this court ... of 21 April 2009 under Article 102 § 4 of the Code of Criminal Procedure, the accused, Ognjen Grubić, has been detained since 8 May 2006.
...
Article 109 § 2 of the Code of Criminal Procedure provides that in cases where a non-final judgment has been adopted the maximum period of detention, until the judgment becomes final, may be extended by one quarter of the term when the maximum period of detention is three years, if [the offence at issue] carries a long-term prison sentence.
Since under the above-mentioned Article the maximum period of detention under Article 109 § 1(5) of the Code of Criminal Procedure against the accused, Ognjen Grubić, may be extended for a further nine months, it has been decided as noted in the operative part of this decision.”
14. On 18 November 2009 the applicant lodged an appeal against the above decision, arguing that he had not been given an opportunity to be heard when his detention had been extended and that the decision to extend his detention was not sufficiently reasoned.
15. The Supreme Court dismissed the applicant’s appeal on 25 November 2009. The relevant part of the decision reads:
“The accused has been detained since 8 May 2006. Under Article 109 § 1(5) of the Code of Criminal Procedure the maximum period of his detention expired on 8 May 2009. Thereafter the first-instance court extended his detention under section 28(3) of the Office for the Suppression of Corruption and Organised Crime Act ... for a further six months until 8 November 2009. By the impugned decision the detention was extended under Article 109 § 2 of the Code of Criminal Procedure for one quarter, namely nine months. Therefore under this provision he may be detained until 8 August [2010].”
16. On 16 December 2009 the Supreme Court dismissed the applicant’s appeal against the first-instance judgment as ill-founded.
17. On 24 June 2010 the applicant lodged a further appeal with the Supreme Court against its judgment of 16 December 2009.
18. On 6 August 2010 a three-judge panel of the Zagreb County Court extended the applicant’s detention under Article 109 § 4 of the Code of Criminal Procedure for a further three months. The relevant part of the decision reads:
“By the judgment of the Supreme Court ... of 16 December 2009 the first-instance judgment ... of this court of 21 April 2009 in which the accused, Ognjen Grubić, was found guilty was upheld in part ...
The accused Ognjen Grubić is detained by order ... of the panel of the Zagreb County Court of 6 November 2009 by which his detention under Article 109 § 1(5) of the Code of Criminal Procedure was extended for a further nine months. He can therefore be detained until 8 August 2010.
Given that the accused personally and through his defence lawyer ... lodged appeals against the judgment of the Supreme Court ... of 16 December 2009, and in view of the provision of Article 109 § 4 of the Code of Criminal Procedure and the fact that his detention expires on 8 August 2010, [this] panel has found that the conditions for extending his detention under Article 109 § 4 of the Code of Criminal Procedure have been met.”
19. The applicant lodged an appeal against the above decision on 17 August 2010. He argued that his detention after 16 March 2010 had been unlawful since under Article 109 § 4 of the Code of Criminal Procedure the detention should have lasted for a maximum of three months following the adoption of the judgment against which an appeal was allowed. He pointed out that the judgment of the Supreme Court, against which an appeal was allowed, was adopted on 16 December 2009 and that therefore his detention should have lasted only until 16 March 2010.
20. The Supreme Court dismissed his appeal on 25 August 2010. The relevant part of the decision reads:
“The case file reveals that the accused Ognjen Grubić has been detained since 8 May 2006. On 6 November 2009 the Zagreb County Court extended his detention for a further nine months and the detention under that decision lasted until 8 August 2010. The second-instance judgment in this case was adopted on 16 December 2009. Under Article 109 § 4 of the Code of Criminal Procedure, from the date of adoption of the second-instance judgment against which an appeal is allowed, as in the present case, the accused may be detained until the judgment becomes final but not for more than three months. However, the case file reveals that the first-instance judgment, and the second-instance judgment against which an appeal is allowed (and [the appeal] was lodged in this case) were adopted within the period of detention under Article 109 § 2 of the Code of Criminal Procedure. Under Article 109 § 4 of the Code of Criminal Procedure and according to the conclusions of the meeting of the Supreme Court Criminal Division on 23 March 2006, the maximum period of detention can be extended after the period under Article 109 § 2 of the Code of Criminal Procedure. In this case this means beyond 8 August 2010 and not, as suggested by the accused, after the date of the second-instance judgment. Thus all the accused, regardless of the date of the second-instance judgment, are in the same position.”
21. On 3 September 2010 the applicant lodged a constitutional complaint with the Constitutional Court (Ustavni sud Republike Hrvatske) against the Supreme Court’s decision, reiterating that his detention after 16 March 2010 had been unlawful.
22. On 8 September 2010 the Supreme Court, acting as the final court of appeal, dismissed the applicant’s appeal against the judgment of 16 December 2009 and his conviction thus became final.
23. On 23 September 2010 the Constitutional Court, endorsing the arguments of the Supreme Court, dismissed the constitutional complaint against the Supreme Court’s decision of 25 August 2010.
24. On 12 October 2010 the applicant lodged a constitutional complaint with the Constitutional Court against the Supreme Court’s judgment of 8 September 2010 by which his conviction became final.
25. The proceedings before the Constitutional Court are still pending.
26. The relevant provisions of the Code of Criminal Procedure (Zakon o kaznenom postupku, Official Gazette nos. 110/1997, 27/1998, 58/1999, 112/1999, 58/2002 and 62/2003) provide as follows:
“...
(4) When judgment is pronounced, detention shall be ordered if the accused is sentenced to five or more years’ imprisonment.”
“(1) Until the adoption of a first-instance judgment, pre-trial detention may last for a maximum of:
1. six months for offences carrying a statutory maximum sentence of three years’ imprisonment;
2. one year for offences carrying a statutory maximum sentence of five years’ imprisonment;
3. eighteen months for offences carrying a statutory maximum sentence of eight years’ imprisonment;
4. two years for offences carrying a sentence of more than eight years’ imprisonment;
5. three years for offences carrying a sentence of long-term imprisonment.
(2) In cases where a judgment has been adopted but has not yet become enforceable, the maximum term of pre-trial detention may be extended for one sixth of the term referred to in subparagraphs 1 to 3 of paragraph 1 of this provision until the judgment becomes final, and for one quarter of the term referred to in subparagraphs 4 and 5 of paragraph 1 of this provision.
(3) Where a first-instance judgment has been quashed on appeal, following an application by the State Attorney and where important reasons exist, the Supreme Court may extend the term of detention referred to in subparagraphs 1 to 3 of paragraph 1 of this provision for another six months and the term referred to in subparagraphs 4 and 5 of paragraph 1 of this provision for another year.
(4) Following the adoption of an appellate judgment against which an appeal is allowed, detention may last until the judgment becomes final, for a maximum period of three months.
(5) A defendant placed in detention and sentenced to a prison term by a final judgment shall stay in detention until he is committed to prison, but for no longer than the duration of his prison term.”
27. The relevant provision of the Office for the Suppression of Corruption and Organised Crime Act (Zakon o Uredu za suzbijanje korupcije i organiziranog kriminaliteta - USKOK, Official Gazette nos. 88/2001, 12/2002, 33/2005, 48/2005, 76/2007) is worded as follows:
“(1) Custody under Article 98 of the Code of Criminal Procedure shall be extended to 48 hours.
(2) The total duration of pre-trial detention in the above proceedings, in the case of extended investigation (Article 204, paragraph 1 of the Code of Criminal Procedure) may be twelve months.
(3) If the pre-trial detention during the investigation had been extended under paragraph 2 above, the total duration of the pre-trial detention under Article 109 of the Code of Criminal Procedure shall be extended for six months.”
28. The relevant part of the guidelines adopted at a meeting of the Criminal Division of the Supreme Court on 23 March 2006 (published on the Supreme Court’s website under no. Su IVk-155/2006-1) reads:
“...
Where a first-instance judgment and a second-instance decision quashing the first-instance judgment have been adopted within the time prescribed for detention under Article 109 § 1 of the CCP, the overall duration of detention may be extended under Article 109 § 2 of the CCP and after the expiry of that period also under Article 109 § 3 of the CCP.
The overall duration of detention under Article 109 § 3 of the CCP is to be extended only after the time-limit prescribed in Article 109 § 2 of the CCP has expired, irrespective of whether the first-instance court has adopted a fresh judgment in the retrial proceedings.
The maximum period of detention where a judgment has been adopted but has not yet become enforceable is to be fixed according to the criminal offence of which the accused was found guilty, even where the State Attorney has filed an appeal on any grounds.
Where a first-instance judgment or a second-instance judgment against which an appeal is allowed have been adopted within the time-limits set by Article 109 § 1 of the CCP, the overall duration of detention may be extended under Article 109 § 2 of the CCP. After the time-limit set by that Article expires, detention may be extended under Article 109 § 4 of the CCP.
Where a first-instance judgment or a second-instance judgment against which an appeal is allowed have been adopted within the time-limits set by Article 109 § 2 of the CCP, the overall duration of detention may be extended under Article 109 § 2 of the CCP. After the time-limit set by that Article expires, detention may be extended under Article 109 § 4 of the CCP, after the expiration of the time-limit under Article 109 § 2 of the CCP.
Where a second-instance decision against which an appeal is allowed has been adopted within the time-limit set by Article 109 § 3 of the CCP, the overall duration of detention may be extended under Article 109 § 4 of the CCP, after the expiration of the time-limit set by Article 109 § 3 of the CCP.
Where a second-instance decision against which an appeal is allowed has been quashed within the time-limit set by Article 109 § 1 of the CCP, the overall duration of detention may be extended under Article 109 § 2 of the CCP, after the expiration of the time-limit set by Article 109 § 3 of the CCP.
Where a second-instance decision against which an appeal is allowed has been quashed within the time-limit set by Article 109 § 2 of the CCP, the overall duration of detention may be extended under Article 109 § 3 of the CCP.
...”
29. The Supreme Court’s practice as regards interpretation of Article 109 of the Code of Criminal Procedure is reflected in decisions nos. II Kž-427/09-5 and II Kž-323/22-3.
The relevant part of decision no. II Kž-427/09-5 of 22 July 2009 reads as follows:
“The Supreme Court, as the court of second-instance, considers that the first-instance court correctly established that in the present case the conditions for the extension of the overall detention of the accused ... under Article 109 § 2 of the Code of Criminal Procedure had been satisfied, and thus extended his overall detention for a further nine months.
In a non-final judgment of the Sisak County Court of 7 May 2008 ... the accused ... was found guilty ... and sentenced to twenty years’ imprisonment. That judgment ... was upheld by a judgment of the Supreme Court on 3 December 2008 ... against which the accused lodged an appeal. In view of the sentence given, the detention of the accused is obligatory under Article 102 § 4 of the Code of Criminal Procedure.
The accused was detained between 6 January and 5 October 1992 (nine months) and also since 1 March 2007. The maximum period of detention [applicable to him], of three years under Article 109 § 1(5) of the Code of Criminal Procedure, was due to expire on 1 June 2009. Given that the accused was, inter alia, convicted of the criminal offence of aggravated murder ... [which is] punishable by twenty years’ imprisonment, a court may, under Article 109 § 2 of the Code of Criminal Procedure, extend his overall detention for one quarter [of the term referred to in subparagraphs 4 and 5 of paragraph 1 of Article 109 of the Code of Criminal Procedure], that is to say for a further nine months.
Therefore, the Supreme Court finds that the extension of the accused’s detention for a further nine months by the first-instance court was well founded and lawful ...
...
The accused’s submissions based on Article 109 § 4 of the Code of Criminal Procedure in which he argued that his detention should be lifted because more than three months had passed since the second-instance judgment was adopted are also unfounded. The Supreme Court considers that where, as in the present case, a first-instance judgment and a second-instance judgment against which an appeal is allowed have been adopted within the time-limit for detention under Article 109 § 1 of the Code of Criminal Procedure, the overall duration of detention may be extended under Article 109 § 2 of the Code of Criminal Procedure, and after that time-limit expires, it may be extended further under Article 109 § 4 of the Code of Criminal Procedure.”
The relevant part of decision no. II Kž-323/22-3 of 27 June 2011 reads as follows:
“After the adoption of the first-instance judgment, the detention was extended under Article 109 § 2 of the Code of Criminal Procedure ... until 29 June 2011. The second-instance judgment against which an appeal is allowed was adopted on 25 May 2011.
Under Article 109 § 4 of the Code of Criminal Procedure, from the date when the second-instance judgment against which an appeal is allowed was adopted, as in the present case, detention may last until the judgment becomes final but not for more than three months. Since the first-instance judgment and the second-instance judgment against which an appeal is allowed were adopted within the time-limits for detention set out in Article 109 § 2 of the Code of Criminal Procedure, the detention can be extended under Article 109 § 4 of the Code of Criminal Procedure only after the period of detention under Article 109 § 2 of the Code of Criminal Procedure has expired, which in this case means after 29 June 2011.
Therefore since the detention of the accused ... under Article 109 § 2 of the Code of Criminal Procedure can last until 29 June 2011, detention under Article 109 § 4 of the Code of Criminal Procedure was extended from that date until the judgment becomes final but not for more than three months, namely until 29 September 2011.”
NON_VIOLATED_ARTICLES: 5
NON_VIOLATED_PARAGRAPHS: 5-1


ITEMID: 001-78603
LANGUAGEISOCODE: ENG
RESPONDENT: SVK
BRANCH: CHAMBER
DATE: 2006
DOCNAME: CASE OF RADIO TWIST, A.S., v. SLOVAKIA
IMPORTANCE: 1
CONCLUSION: Violation of Art. 10
JUDGES: Giovanni Bonello;Ján Šikuta;Josep Casadevall;Kristaq Traja;Matti Pellonpää;Nicolas Bratza
TEXT: 6. The applicant is a broadcasting company which was established in 1991 and is registered in Bratislava.
7. At the relevant time the applicant company broadcast on five frequencies in Slovakia and had a daily audience of more than 400,000 listeners. The principles underlying its operations were democracy and independence.
8. At the relevant time Slovenská poisťovňa a.s. (“SP”) was a major insurance company in Slovakia. It was controlled by the State through the National Privatisation Agency (Fond národného majetku – “the FNM”).
9. Following the 1994 parliamentary elections, SP’s management board was appointed through a political agreement between the coalition parties then in power. The coalition included the Movement for a Democratic Slovakia (Hnutie za demokratické Slovensko – “HZDS”) and the Slovak National Party (Slovenská národná strana – “SNS”).
10. At that time the majority of seats in the bodies under the FNM’s control were held by HZDS appointees.
11. On 1 June 1996 SP’s supervisory board removed the individuals appointed by the SNS from the company’s board of directors and appointed a new management team. The outgoing management team did not accept this move.
12. On 3 June 1996 the former management team took over the SP headquarters. They were assisted by private security guards and a squad of State police, who had been assigned to this task by the President of the Slovak Police Corps, an SNS appointee. They forced the newly appointed management team to leave the premises, but a few days later the new management, assisted by their own private security service, regained control of the company and its premises.
13. The background to this struggle was, essentially, the wish of those involved to participate in SP’s privatisation. The removal of the SNSappointed management team caused a serious political crisis at government level.
14. At the relevant time Mr K. was Deputy Prime Minister and Minister of Finance and Mr D. was State Secretary at the Ministry of Justice. The posts of State Secretaries within ministries were filled through appointments by political parties. They were therefore political posts and did not form part of the civil service.
15. After the events complained of, Mr D. was elected as a judge to the Constitutional Court.
16. At 6 p.m. on 12 June 1996 the applicant company broadcast the recording of a telephone conversation between Mr K. and Mr D. in its news programme “Journal”.
17. The broadcast was preceded by comments by the applicant company’s journalist. The names of the persons involved were mentioned in full. The commentary went as follows:
“As mentioned in our noon programme, we have managed to obtain a tape recording of a telephone conversation which suggests that [Mr K.], the Deputy Prime Minister and Minister of Finance, was involved in the events involving Slovenská poisťovňa a.s. Naturally, Radio Twist disapproves of any wiretapping unless it is done under a court order. We consider [the present recording] unlawful and dissociate ourselves from the manner in which it was obtained. But because, in this case, a matter of general interest is involved, one which cannot be concealed ... we seek to carry out our duty to inform the public. At the same time, we would like to ask the competent authorities about the security situation in our country, if wiretapping of ... senior officials is possible. The fact that senior officials are involved in activities concerning the above-mentioned case should be considered by those authorised to deal with it. And now to the tape which, due to its technical quality, is almost unintelligible. The other person speaking over the phone is probably [Mr D.], State Secretary at the Ministry of Justice.”
18. Immediately thereafter the recorded conversation between Mr K. and Mr D. was played. The transcript reads as follows.
Mr K: “... the police, with the assistance of the policemen [and] some other security guards have entered and seized the building, they have emptied the building ...”
Mr D: “But this is peculiar, the involvement of the policemen, what could have been the grounds for their action ...”
Mr K: “Certainly, this was a failure by the security guards, those that were there at that moment, but this was a layman’s approach maybe, because ... It seems the policemen were rather hard according to all the circumstances. You know, the police raid was probably organised through [Mr H.], you know, the Slovak National Party. Well then, this was all I wanted to say, that there is that ...”
Mr D: “Will you be chairing the meeting?”
Mr K: “Yes, but the boss will arrive to speak on two items on the agenda.”
Mr D: “I see. Otherwise, I have been charged with this task, because he is leaving for Banská Bystrica.”
Mr K: “Good, it is clear, all I wanted to say ...”
Mr D: “Nobody is going to interfere with my business ...”
Mr K: “Well, of course not.”
Mr D: “As he does not even know yet what I am doing ...”
Mr K: “[The first name of Mr D.], it would therefore be most important ...”
Mr D: “I shall go and personally inspect it in the morning, before the meeting starts ...”
Mr K: “I would like to ask you to do this, as it will emphasise the fact that they have done it ...”
Mr D: “That’s clear.”
Mr K: “I had a phone call from there just half an hour ago ...”
Mr D: “Very good, I also need to know this in order to speak about it there.”
Mr K: “That will be extremely important.”
Mr D: “All right then, first thing in the morning I shall submit the report about how things are going ...”
Mr K: “Otherwise, you have to turn to me, this lady I have arranged, simply speaking, it is all organised by me, hence ...”
Mr D: “Yes, yes.”
Mr K: “Even if I am not present, I shall later go directly to the government session, but through this [Mrs M.], they know for sure, actually they are well-oriented on the subject ...”
Mr D: “I have got my instructions.”
Mr K: “It is clear, these instructions apply.”
Mr D: “Well then, see you.”
Mr K: “[The first name of Mr D.], thank you very much, see you ... bye ...”
19. The subsequent commentary by the journalist, in which the full names of those involved were again mentioned, stated.
“And let us start to clarify things for a moment. The dealings around Slovenská poisťovňa surfaced in public on Monday 3 June 1996. To put it simply: the ten managers of Slovenská poisťovňa – let us call them Mr [T.] and Co. – were pushed out of their building after the weekend by a private security service. These security guards had been summoned by the new management team of Slovenská poisťovňa – let us call them Mrs [B.] and Co. Mr [T.] and Co. were supported by the police and, as documented by the taped phone conversation, it is evident that the President of the Police Corps, Major [H.] is a protégé of the Slovak National Party. The former management team, [T.] and Co., seized the building with police assistance and, as has been clear from the start, this was the building of Slovenská poisťovňa. This happened on Tuesday last week, and on the very same day these managers were again sitting in their chairs. As follows from the taped phone conversation, it is clear that the persons spoke together last Monday, 3 June, and that the State Secretary at the Ministry of Justice, [Mr D.], was a somewhat easier partner for Minister [K.] than the Minister of Justice, [Mr L.], who was in Banská Bystrica that day. We have verified this fact. Just to complete the information, it should be noted that last week’s Tuesday government session was chaired by Mr [K.]. Owing to the poor technical quality of the recording of the phone conversation between [Mr K.] and [Mr D.], I think it would be worthwhile listening to it once again.”
...
“We asked for the opinion of the Ministry of Justice. [P.Š.], the Ministry’s spokesman, ... did not know of the contents of the recording as it had not yet been made public in Slovakia. Understandably, he did not therefore want to react to it. We expect the response of the Ministry tomorrow. We also turned to Minister [K.], who stated:
‘Look, I do not comment on things that are contrary to democracy. I think that journalists should perhaps choose a different approach since government officials have been tapped. So I will not comment on something that has been published without my consent. Undoubtedly, this information is about the fact that there has been certain pressure ... in Slovenská poisťovňa.’”
20. Mr D. filed a civil action against the applicant company in the Bánovce nad Bebravou District Court (Okresný súd) for protection of his personal integrity.
He argued that the company had broadcast the telephone conversation despite the fact that it had been obtained in an illegal manner. The broadcast had interfered with his personal integrity by harming his reputation, dignity and respect for his person among the public. In addition, the statements broadcast included distorted and incomplete information that was capable of discrediting him.
The plaintiff also referred to the fact that the information had subsequently been picked up by the Czech TV station Nova, and that several articles had been published in the Slovak dailies SME, Práca and Slovenská republika. As a result, the trust between the Minister of Justice and the plaintiff had been undermined.
He acknowledged that, at the time that the recording was made, he had spoken with several persons and admitted that it was his voice on the recording. The recording and the comments as such had been taken out of context, and the telephone conversation had not been broadcast in its entirety. The plaintiff denied that the subject of the conversation had been the events as presented by the commentator, since his position did not authorise him to intervene in the case as suggested in the broadcast.
21. In its observations in reply, the applicant company stated that the recording of the conversation had been deposited in its mailbox by unknown persons. Speculation about such a recording had been circulating in the week prior to the broadcast, and as a result the coalition government had been threatened with a split. Prior to the broadcast the applicant company’s employees had tried to contact the persons concerned, in accordance with the company’s internal rules. Although the tape was almost unintelligible, as an information medium the applicant company had felt obliged to inform the public and to demonstrate what was going on in political circles at that time. In his commentary on the material broadcast, the journalist had stated that the applicant company disapproved of the manner in which the recording had been obtained.
22. The District Court heard the parties and three witnesses and examined a transcript of the impugned broadcast and other documentary evidence.
23. In a judgment delivered on 16 March 1999, the District Court ordered the applicant company to offer the plaintiff a written apology and to broadcast that apology within fifteen days. It was to read as follows:
“We apologise to [Mr D.], the former State Secretary at the Ministry of Justice of the Slovak Republic, now judge of the Constitutional Court of the Slovak Republic, for having broadcast an unlawfully obtained recording of a telephone conversation on 12 June 1996 at 6 p.m.”
24. The applicant company was further ordered to pay 100,000 Slovakian korunas to Mr D. in compensation for non-pecuniary damage, and to reimburse his legal costs.
25. The District Court based its judgment, inter alia, on the following grounds. The applicant, as a licensed radio broadcasting company, had the right to use audio recordings for scientific and artistic purposes and for news reporting without a person’s previous consent. However, under the last sentence of Article 12 § 3 of the Civil Code, such use should not conflict with the justified interest of the person concerned. The applicant company had not been prevented from commenting on the situation which had arisen and from presenting its views. In order to do so, however, it had not been necessary to broadcast a tape obtained in an illegal manner.
The District Court further noted that the plaintiff’s dignity as a public official had been diminished as the issue had been commented on in the press and on television. It therefore considered it appropriate to order the applicant company to compensate the plaintiff in respect of non-pecuniary damage under paragraph 2 of Article 13 of the Civil Code.
26. The applicant company appealed. It maintained that the Constitution did not subject the use of recordings to the prior establishment of their lawfulness and that it had not been formally shown that the recording had been unlawfully obtained. The plaintiff was a public official and the contents of the recording concerned the exercise of a public function. The recording had been discussed for several days prior to being broadcast. By broadcasting the telephone conversation, the applicant company had fulfilled its task of informing the public about issues of public interest. Finally, the applicant pointed out that the plaintiff had become a constitutional judge in the meantime, and that it had not been shown that he had suffered any damage as a result of the broadcast.
27. On 22 February 2000 the Žilina Regional Court (Krajský súd) upheld the judgment of the District Court. The Regional Court admitted that imparting of information by the media was an important instrument for supervising political power in a democratic society. Informing on and criticising matters of public interest were among the media’s most important tasks, and constitutional protection of such interests was ensured by the guarantees of freedom of expression and of the right to information. However, in the case under consideration the freedom of communication of users of telecommunications services had been violated, and an interference with the right to respect for privacy had occurred as a result of publicly broadcasting the telephone conversation. That fact was at the heart of the applicant company’s unjustified interference with the plaintiff’s personal rights since, as the Regional Court held, protection of privacy extended to the conversations of public officials.
28. Article 16 § 1 provides for protection of a person’s integrity and privacy. Restrictions are permissible only in cases provided for by law.
29. Article 22 guarantees secrecy of correspondence, other communications and written messages delivered by post, and of personal information (§ 1). The privacy of letters, other communications and written messages, kept privately or delivered by post or otherwise, including communications made by telephone, telegraph and other means, cannot be violated by anyone except in cases specified by law (§ 2).
30. Paragraph 1 of Article 26 guarantees freedom of expression and the right to information. Paragraph 2 provides, inter alia, that everyone has the right to express his or her views and to freely seek, receive and impart ideas and information. Under paragraph 4, freedom of expression and the right to seek and impart information can be restricted by means of a law, where such restriction is necessary in a democratic society for the protection of, inter alia, the rights and freedoms of others.
31. Under Article 26 § 5, as in force at the relevant time, State authorities and local self-government authorities were obliged to provide information about their activities in an appropriate manner. Further details in this respect were to be laid down in a special law.
32. The right to protection of a person’s personal integrity is guaranteed by Articles 11 et seq. of the Civil Code.
33. According to Article 11 natural persons have the right to protection of their personality, in particular of their life and health, civil and human dignity, privacy, name and personal characteristics.
34. Article 12 § 1 provides, inter alia, that audio recordings concerning natural persons or their statements of a personal nature may only be made or used with the consent of the person concerned. Under paragraph 2 of that Article such consent is not required where the documents or recordings are used for official purposes in accordance with the law. Article 12 § 3 provides that pictures and audio recordings can also be made and used in an appropriate manner without the consent of the person concerned for scientific and artistic purposes and also for news reporting by means of the press, film, radio and television. Such use cannot, however, be contrary to the justified interests of the person concerned.
35. Pursuant to Article 13 § 1, all natural persons have the right to request an order restraining any unjustified interference with their personal integrity, an order cancelling out the effects of such interference and an award of appropriate compensation.
36. Article 13 § 2 provides that in cases where the satisfaction afforded under Article 13 § 1 is insufficient, in particular because the injured party’s dignity or social standing has been considerably diminished, the injured party is also entitled to financial compensation for non-pecuniary damage.
37. The Act regulates citizens’ (občan) use of the press and mass media in accordance with the constitutionally guaranteed freedom of expression and the press (section 1(1)). Part (časť) V governs protection against abuse of freedom of expression and the press. It contains, inter alia, the following rules.
38. Legal protection is afforded to any person who makes use of his or her freedom of expression and the press (section 16(1)).
39. Under section 16(2) the publishing of information that threatens the legally protected interests of society or of citizens is considered an abuse of freedom of expression or the press. Protection of society and citizens against abuse of freedom of expression and the press is entrusted to the publisher, the chief editor, the editor and the author. Details are to be laid down in special legislation which, at the same time, will regulate the liability of the publisher for damage caused by the press or other mass media.
VIOLATED_ARTICLES: 10


ITEMID: 001-88904
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: CHAMBER
DATE: 2008
DOCNAME: CASE OF KANBUR v. TURKEY (NO. 2)
IMPORTANCE: 4
CONCLUSION: Violation of Article 6 - Right to a fair trial
JUDGES: András Sajó;Antonella Mularoni;Françoise Tulkens;Ireneu Cabral Barreto;Nona Tsotsoria;Vladimiro Zagrebelsky
TEXT: 4. The applicant was born in 1960 and lives in Istanbul.
5. On 30 October 2001 the Court found that there had been a violation of Article 6 § 1 of the Convention, following an application lodged by the applicant on 21 July 1995 (Kanbur v. Turkey, no. 28291/95) concerning the length of criminal proceedings brought against him for his membership of Dev-Yol (Revolutionary Way). By then the proceedings had lasted for over nineteen years. The Court awarded the applicant 100,000 French francs (approximately 15,000 euros) in compensation.
6. At the time of the Court’s judgment, the criminal proceedings against the applicant were still pending before the Ankara Assize Court.
7. The facts of the case thereafter, as submitted by the applicant, may be summarised as follows.
8. On 14 May 2002 the applicant attended a hearing before the Ankara Assize Court, gave a statement and submitted the Court’s judgment of 30 October 2001 in order to ensure that his case would be heard within a reasonable time.
9. On 16 July 2002 the Assize Court sentenced the applicant to death, and then commuted his sentence to life imprisonment. The judgment was subject to appeal.
10. In the meantime in October 2001, Article 38 of the Constitution was amended so that the death penalty could no longer be ordered or implemented other than in time of war or of imminent threat of war, or for acts of terrorism. Subsequently, by Law no. 4771, which was published on 9 August 2002, the Turkish Grand National Assembly resolved, inter alia, to abolish the death penalty in peacetime.
11. On 28 May 2004 the Court of Cassation quashed the judgment of the first-instance court on the ground that the death penalty had been abolished during the course of the proceedings.
12. On 23 December 2004 the Ankara Assize Court resumed the trial. On that day it ordered, in absentia, the provisional detention of the applicant in order to secure a statement from him.
13. On 27 December 2004 the Ankara Assize Court heard a statement from the applicant as regards the state of the case and revoked the detention order as having served its purpose. Subsequently, the Ankara Assize Court held thirteen more hearings.
14. On 3 October 2006, at its fourteenth hearing, the Ankara Assize Court delivered its judgment and sentenced the applicant to life imprisonment pursuant to Article 146 of the Criminal Code.
15. According to the information made available to the Court by the parties to date, the case is apparently still pending before the Court of Cassation.
VIOLATED_ARTICLES: 6


ITEMID: 001-78253
LANGUAGEISOCODE: ENG
RESPONDENT: UKR
BRANCH: CHAMBER
DATE: 2006
DOCNAME: CASE OF GONCHAROV AND OTHERS v. UKRAINE
IMPORTANCE: 4
CONCLUSION: Violation of Art. 6;Violation of P1-1;Remainder inadmissible;Pecuniary and non-pecuniary damage - financial awards (global)
JUDGES: Peer Lorenzen
TEXT: 4. The applicants were born in 1933, 1953, 1946 and 1968 respectively and live in Krasnyy Kut, the Lugansk region.
5. The facts of the case, as submitted by the parties, may be summarised as follows.
6. On various dates the applicants instituted civil proceedings in the Krasnyy Luch Court (Краснолуцький міський суд Луганської області) seeking salary arrears and various payments from the State Open Joint Stock Mining Company “Krasnokutska” (“the Company,” ДВАТ шахта “Краснокутська” ДП ДХК “Донбасантрацит”).
7. On 5 March 2001 the Krasnyy Luch Court awarded UAH 8,906.23 in favour of the first applicant.
8. On 21 February 2001 the Krasnyy Luch Court awarded UAH 1,881.63 in favour of the second applicant.
9. On 14 June 2000 and 8 February 2001 the Krasnyy Luch Court awarded UAH 1,548.42 and UAH 417.53 respectively in favour of the third applicant.
10. On 21 May 2001 the Krasnyy Luch Court awarded UAH 2,843.41 in favour of the fourth applicant.
11. The judgments in favour of the applicants became final and the enforcement writs were transferred to the Krasnyy Luch Bailiffs' Service (“the Bailiffs,” Відділ Державної виконавчої служби Краснолуцького міського управління юстиції) for enforcement.
12. On 13 August 2002 the Lugansk Regional Commercial Court (“the Commercial Court,” Господарський суд Луганської області) initiated bankruptcy proceedings against the Company and introduced a moratorium on payment of its debts.
13. On 4 February 2003 the Commercial Court approved a friendly settlement between the Company and its creditors and discontinued the bankruptcy proceedings.
14. The first, the second and the fourth applicant received their judgments debts in several instalments, the final payments being made in August 2005. The third applicant received the debt due to her by the judgment of 1 June 2000 in August 2004 and in August 2005 - the debt by the judgment of 8 February 2001.
15. The relevant domestic law is summarised in the judgment of Sokur v. Ukraine (no. 29439/02, § 17-22, 26 April 2005).
VIOLATED_ARTICLES: 6


ITEMID: 001-66758
LANGUAGEISOCODE: ENG
RESPONDENT: SVK
BRANCH: GRANDCHAMBER
DATE: 2004
DOCNAME: CASE OF KOPECKÝ v. SLOVAKIA
IMPORTANCE: 1
CONCLUSION: No violation of P1-1
JUDGES: Luzius Wildhaber;Nicolas Bratza;Paul Mahoney
TEXT: 12. On 12 February 1959 the applicant’s father was convicted of keeping, contrary to the regulations then in force, 131 gold coins and 2,151 silver coins of numismatic value. He was sentenced to one year’s imprisonment. He was also fined, and the coins were confiscated.
13. On 1 April 1992, in the context of judicial rehabilitation provided for by the Judicial Rehabilitation Act 1990, the Supreme Court of the Slovak Republic (Najvyšší súd) quashed the judgment of 12 February 1959 and all consequential decisions, and discharged the applicant’s late father.
14. On 30 September 1992 the applicant claimed the restitution of his father’s coins under the Extra-Judicial Rehabilitations Act 1991 (“the 1991 Act”).
15. On 19 September 1995 the Senica District Court (Okresný súd) granted the action and ordered the Ministry of the Interior to restore the coins to the applicant. The court established, with reference to the relevant records, that the coins had been taken away from the applicant’s father on 21 November 1958 and transmitted to the Regional Administration of the Ministry of the Interior in Bratislava on 12 December 1958. On 19 December 1958 the coins had been examined by an expert and inventoried on the premises of the Regional Administration in Bratislava.
16. The relevant part of the District Court’s judgment reads as follows:
“It is true that the law requires that a person claiming restitution of movable property should indicate and show where such property is. However, in the present case the plaintiff undoubtedly has no possibility of inspecting the premises or safes of the former Public Security Regional Administration in Bratislava as he is not allowed to enter those premises. By insisting that the applicant should show that the coins are at the last known place, the Court would impose a burden of proof on him which it is practically impossible to fulfil. On the contrary ... the Ministry of the Interior neither showed that the former Public Security Regional Administration in Bratislava had transferred the coins to a different authority nor did it propose to take evidence to that effect ...
The Court has established that the last time [their exact location was known] the coins ... had been held on the premises of the Public Security Regional Administration in Bratislava to which the Ministry of the Interior is a successor, and it has not been shown that the coins were not on those premises when the Extra-Judicial Rehabilitations Act became operative, that is, on 1 April 1991.”
17. On 1 December 1995 the Ministry of the Interior appealed. Its representative argued that all relevant documents had been destroyed and that the onus of proof as to where the coins had been deposited lay on the applicant.
18. On 29 January 1997 the Bratislava Regional Court (Krajský súd) ruled in favour of the Ministry of the Interior. It found, with reference to sections 4(1), 5(1) and 20(1) of the 1991 Act, that the applicant had failed to show where the coins had been deposited when that Act had become operative on 1 April 1991.
19. In the judgment, the Regional Court admitted that the applicant had limited possibilities of locating his father’s property. It had therefore taken further evidence on its own initiative. In particular, the Regional Court noted that, in accordance with the relevant practice, the confiscated property should have been handed over to the public prosecutor and, after the relevant judgment had became final, to the financial department of the competent local government authority. The Regional Court therefore examined the criminal file concerning the case of the applicant’s father. It further established that the archives of the Senica District Office, the Ministry of the Interior, the National Bank of Slovakia and the State Regional Archives in Bratislava contained no document relating to the coins in question. The Regional Court also heard a witness who had worked at the Myjava District Office of the Ministry of the Interior in 1958; the latter had no knowledge of the case, however. It did not consider it necessary to hear two other persons, one of whom had been present when the coins were inventoried and taken over by the Regional Administration, as those persons had been dismissed from service in 1958 and in 1960 respectively. Their statements would not, therefore, make it possible to establish the relevant facts of the case.
20. On 27 January 1998 the Supreme Court dismissed the applicant’s appeal on points of law. It shared the Regional Court’s view that the applicant had failed to produce evidence that the defendant Ministry was in possession of the coins, as required by section 5(1) of the 1991 Act.
21. In the judgment, the Supreme Court further stated:
“The allegation that the movable property in question had been taken over by an employee of the Public Security Regional Administration in Bratislava on 12 December 1958 and that ... it had been examined there by an expert on 19 December 1958 cannot suffice. Since then, a considerable period has lapsed, during which the gold and silver coins in question could have been alienated, destroyed or lost. The legislator, however, explicitly included in section 5(1) of the Extra-Judicial Rehabilitations Act the obligation to show where the movable property in question was at the time of the entry into force of that Act.
... It follows from a logical and systematic interpretation of section 5(1) of the Extra-Judicial Rehabilitations Act that a restitution claim can only concern the same property which was taken over by the State and not a different object of the same kind. Only movable property which can be individually identified by specific features which mean that it cannot be confused with other objects is therefore liable to restitution ...”
22. Law no. 119/1990 on judicial rehabilitation (Zákon o súdnej rehabilitácii) came into force on 1 July 1990. The relevant provisions read as follows:
“The aim of the Act is to authorise the quashing of convictions for offences where such convictions are incompatible with the principles of a democratic society respecting the political rights and freedoms enshrined in the Constitution and set out in international instruments, ... to ensure social rehabilitation and adequate material compensation for the persons [so] convicted ...”
“...
(2) The conditions under which the provisions of this Act shall apply to claims resulting from the quashing of confiscation decisions ... as well as the manner of redress and the scope of such claims shall be defined in a special law.”
23. Law no. 87/1991 on extra-judicial rehabilitations (Zákon o mimosúdnych rehabilitáciách – “the 1991 Act”) came into force on 1 April 1991. Its preamble states that it was enacted with the aim of mitigating the consequences of certain infringements of property and other rights which occurred between 25 February 1948 and 1 January 1990. The relevant provisions of the 1991 Act read as follows:
“(1) This Act aims at the mitigation of the consequences of certain infringements ... which occurred between 25 February 1948 and 1 January 1990 ... and which are incompatible with the principles of a democratic society respecting the rights of citizens as enshrined in the Charter of the United Nations, the Universal Declaration of Human Rights and the ensuing international covenants on civil, political, economic, social and cultural rights.
(2) This Act also lays down the conditions for submitting claims resulting from the quashing of convictions by which property was confiscated ... as well as the manner of redress and the scope of such claims.”
“(1) Entitled persons [namely, persons entitled to file a claim under this Act] are all natural persons whose property passed into State ownership in the circumstances referred to in section 6 provided that they are nationals of the Czech and Slovak Federal Republic and have their permanent residence within its territory.
(2) In cases where the person whose property passed into State ownership in the circumstances referred to in section 6 has died ... the following natural persons are entitled [to claim restitution] provided that they are nationals of the Czech and Slovak Federal Republic and have their permanent residence within its territory ...
(a) the testamentary heir ... who has acquired the whole estate;
...”
“(1) Persons obliged [to restore the property] shall comprise the State or legal persons having confiscated property in their possession on the date of entry into force of this Act ...
(2) Any natural person who [unlawfully] acquired property from the State shall also be obliged to restore such property ...”
“(1) A person obliged [to make restitution] shall restore the property upon a written request provided that the person [claiming the property] proves that he or she is entitled to have the property restored and shows the manner in which it was taken by the State. When claiming restitution of movable property [the person concerned] is further required to show where the property is ...”
“(1) Financial compensation may be granted to the person concerned only in respect of real property which cannot be restored ...
(2) Where the State acquired, on the basis of a judicial decision which was quashed under the Judicial Rehabilitation Act (Law no. 119/1990) ..., the entire property of a citizen and where such property did not comprise real property, the person concerned is entitled to compensation in the amount of 60,000 Czechoslovak korunas ...”
“(1) Entitled persons are persons who were rehabilitated under Law no. 119/1990 who meet the conditions set out in section 3(1) or, where such persons are dead ... , persons set out in section 3(2) [of the Extra-Judicial Rehabilitations Act 1991].”
“(1) The persons obliged [to restore confiscated property] shall comprise any legal person referred to in section 4(1), any natural person referred to in section 4(2) who acquired such property from the State where the State itself obtained it as a result of a judicial decision, and the competent central government authority.
(2) The persons obliged to restore confiscated property shall do so in accordance with sections 5, ... of the Act; where it is impossible to restore the property the persons concerned are entitled to claim compensation in accordance with section 13 of [this] Act.”
24. In judgment no. 1 Cdo 27/94 of 25 May 1994, the Supreme Court upheld the lower courts’ conclusion that movable property which could not be individually identified could not be restored under the 1991 Act. In the proceedings in question, the plaintiffs claimed restitution of a gold brick, several gold coins and banknotes which had been transferred to the State in 1950. The relevant part of the Supreme Court’s judgment reads as follows:
“... on the basis of a logical and systematic interpretation of section 5(1) of the Extra-Judicial Rehabilitations Act, as amended, and after comparing that provision with other provisions [of that Act], the Court of Cassation concluded that only movable property which can be individually identified by specific features which mean that it cannot be confused with other objects is liable to restitution ... The appellants’ view that objects identified by their kind but not individually may also be restored is incorrect as it is contrary to the nature and purpose of the Extra-Judicial Rehabilitations Act, the aim of which is to mitigate the consequences of certain (that is, not all) infringements of property and other rights ...”