ITEMID: 001-127610
LANGUAGEISOCODE: ENG
RESPONDENT: LTU
BRANCH: CHAMBER
DATE: 2013
DOCNAME: CASE OF PAULIUKIENĖ AND PAULIUKAS v. LITHUANIA
IMPORTANCE: 4
CONCLUSION: No violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for private life)
JUDGES: András Sajó;Guido Raimondi;Helen Keller;Paulo Pinto De Albuquerque
TEXT: 6. The first applicant, Ms Zita Paliukienė, was born in 1954. The second applicant, her husband Mr Vytautas Pauliukas, was born in 1953. They are both Lithuanian nationals and live in Kaunas.
7. In December 1995 the first applicant bought a portion (339/631) of a plot of land at 40 Raseinių Street and 13 Telšių Street in Kaunas. In January 1996 the subplot was registered in her name in the Real Estate Registry.
8. It appears from a letter from the authorities of 29 April 2003 to the applicants’ neighbour, Č.P., that on 3 April 2003 the Kaunas territorial planning authorities issued an administrative-law penalty notice against the first applicant on the ground that she was pursuing construction works inside a warehouse (ūkinio pastato viduje) built on the above-mentioned plot of land and was disregarding the orders of the official supervising construction works. The Government state that to their knowledge that decision has not been quashed. On 7 November 2003 the first applicant was again ordered to stop the building works as she had no permit to carry them out.
9. On 29 September 2003 the Kaunas region territorial planning authorities issued an administrative-law penalty notice on the ground that the first applicant had unlawfully reconstructed a house situated at 40 Raseinių Street and 13 Telšių Street in Kaunas. The first applicant was fined 1,000 Lithuanian litai (LTL). On 7 November 2003 the administrative court quashed the decision, on the procedural ground that the penalty notice of 29 September had been issued in the absence of the first applicant. The case was returned to the territorial planning authorities. On 25 November 2003 the authorities issued a repeat penalty notice about the unlawfully reconstructed house. This time the applicants’ daughter was present and signed the document. She told the authorities that they could not enter the house because she had no keys to it. The first applicant was fined in the same amount, LTL 1,000.
10. By a decision of 5 February 2004 the Kaunas Regional Administrative Court quashed the decision of 25 November 2003 due to procedural flaws. The court considered that the first applicant’s offence was of a continuous nature, and that it was therefore necessary to establish the date on which the offence had become known, because a fine under the Code of Administrative Law Offences could be imposed only within six months of the date the violation became known. The territorial planning authority appealed.
11. On 20 May 2004 the Supreme Administrative Court allowed the appeal in part and returned the case for new examination due to procedural flaws. The court noted however that the legal qualification of the first applicant’s actions was not questioned in that case.
12. By a decision of 1 June 2004 the Kaunas Regional Administrative Court found that the date on which the administrative violation by the first applicant had come to light was 15 May 2003. Given that the fine on the first applicant was imposed only on 25 November of that year, more than six months had passed since that violation surfaced, and therefore no administrative punishment was possible. The case was discontinued.
13. In January 2009 the first applicant asked the Kaunas territorial planning authority to approve the house in question, built on the plot of land belonging to both applicants, as fit for habitation. The authorities informed her, however, that there were certain deficiencies in respect of the arbitrarily reconstructed house. Moreover, after those deficiencies had been eliminated the second applicant was also obliged to obtain approval in relation to the building from their neighbour Č.P.
14. The applicants’ neighbour Č.P. had sued the second applicant in civil proceedings for pecuniary damage, on the ground that on 13 October 2002 the second applicant had arbitrarily and unlawfully demolished Č.P.’s fence. In that connection the municipal authorities had earlier found the second applicant guilty of a violation of administrative law. Their decision was upheld by administrative courts at two levels of jurisdiction. By a decision of 28 September 2003 the Kaunas City District Court allowed Č.P.’s civil claim in full.
15. On 4 April 2003 the territorial planning authorities gave the first applicant an administrative warning, because she had unlawfully built a wall on State land and had refused to demolish it. This conclusion was confirmed by the Kaunas City District Court on 24 April 2003.
16. Further, on 12 July 2003 the applicants’ neighbours Č.P., P.Ž., J.D. and L.B. addressed a written complaint to them. The neighbours stated that for the last eight years the applicants had been ignoring the law, had lied, and had used corrupt connections when managing their property. They also submitted that the second applicant had used his position as a Kaunas city elder for his personal proprietary interests, instead of trying to keep an untarnished reputation. The neighbours gave a detailed list of the applicants’ misdemeanours as confirmed by the authorities’ decisions, where it had been mentioned that the applicants’ house was too large, and that they had unlawfully occupied certain parts of a plot of land belonging to neighbours J.D. and L.B., and had also occupied State land. The neighbours expressed the wish, however, that in future all the neighbours would be able to live in peace, and that the applicants would abide by the law. The Government state that later on a copy of this note was given to a journalist.
17. On 27 February 2004 the first applicant was informed by the authorities that some parts of her house were outside the boundaries of the plot of land at 40 Raseinių Street and 13 Telšių Street in Kaunas and were on land belonging to the State. She was reminded that arbitrary occupation and use of State land entailed administrative liability. On 9 March 2004 a penalty notice for an administrative offence was issued to the first applicant for arbitrary occupation of State land. However, by a ruling of 14 April 2004 the court found that the boundaries between the applicants’ land and the State land had been established only after those parts of the house had been built, and that therefore the first applicant could not be held liable for the offence.
18. In 2004 the first applicant brought court proceedings against her neighbour Č.P., claiming that in 1994 he had built a brick wall between her plot of land and his, and that that wall encroached on her plot by 1.16 square metres and thus breached her property rights. Her civil claim was dismissed as unfounded by both the first-instance and the appellate courts. On 2 November 2005 the Supreme Court terminated the proceedings, upholding the lower courts’ conclusions.
19. On 11 November 2003 the daily newspaper Respublika published an article covering the applicants’ boundary disputes with Č.P. and the other neighbours. The article mentioned that that year the second applicant had been elected elder of Kaunas city centre (Kauno miesto centro seniūnas). The article alleged that the applicants were illegally building on their plot of land and had occupied part of the land belonging to the other owners and the State. The relevant passages of the article stated as follows:
“The elder was occupying the neighbours’ land [Seniūnas užėmė kaimynų žemę];
Elected Kaunas city centre elder this year, Vytautas Pauliukas has been building illegally on his plot after occupying land belonging to his neighbours and the State, and is not complying with prohibitions by various institutions on rebuilding the derelict dwelling house situated in his yard [Šiemet Kauno miesto Centro seniūnu išrinktas Vytautas Pauliukas, pažeisdamas įstatymus, savo sklype vykdo savavališkas statybas, yra užėmęs valstybinę ir kaimynams priklausančią žemę, nepaiso įvairių institucijų draudimo rekonstruoti apleistą gyvenamąjį namą, stovintį kieme];
When going through the process of acquiring the land in 1995, [Mr and Mrs] Pauliukai enlarged their plot at the expense of the neighbours and the State – the entrance to L.B.’s yard was narrowed and the roof of [the applicants’] house overhung P.Ž.’s outhouse [1995 metais tvarkydami žemės įgijimo dokumentus, Pauliukai pasididino teritoriją kaimynų ir valstybinės žemės sąskaita – susiaurėjo L.B. įvažiavimas į kiemą, o virš nedidelio P.Ž. namuko pakibo Pauliukų namo stogas];
The residential dwelling section of the city’s housing department ordered Pauliukai [reference to both applicants] either to submit a reconstruction project or to demolish the building by 2 May. However, Pauliukai did not comply with the order, and continued to build a new house inside the old one without permission [Miesto ūkio departamento būsto skyrius įpareigojo Pauliukus iki gegužės 2-osios parengti statinio kapitalinio remonto projektą arba jį nugriauti. Deja, Pauliukai nurodymo nepaisė ir senojo pastato viduje, neturėdami tam leidimų, ėmė statyti naują namą];
V. Pauliukas has worked as deputy director of Inkaras, an enterprise belonging to EBSW [V.Pauliukas yra dirbęs EBSW koncernui priklausančiame “Inkare” direktoriaus pavaduotoju];
Despite several notices [warning them] not to proceed with the illegal building work, Pauliukai have disregarded letters from various institutions and have continued with the works [Nors Pauliukai buvo kelis kartus įspėti nevykdyti savavališkų statybų, jie įvairių tarnybų raštų nepaiso ir toliau atlieka darbus].”
20. After the article was published, on 1 December 2003 the second applicant asked the newspaper to correct the part of the article he considered to be erroneous and damaging to his reputation as a Kaunas city centre elder. He was also dissatisfied at being linked to the Inkaras company, owned by the EBSW group of companies, which was at that time under criminal investigation for bringing Inkaras to insolvency. As the newspaper did not comply with this request, he then brought a claim in the civil courts, seeking rectification of the article and compensation for non-pecuniary damage. The third party in the civil proceedings, the applicants’ neighbour Č.P., told the court that the article did not contain any untruths, and suggested that the civil claim be dismissed.
21. On 3 December 2004 the Vilnius City Second District Court dismissed the second applicant’s claim. The court took into account that when preparing the publication the journalist had talked to the applicants’ neighbours, examined documents, telephoned the second applicant and had regard to his opinion. The court pointed out that, in accordance with Article 2.24 § 5 of the Civil Code, the press could be held liable for defamation if it knew that information it published did not correspond to reality, that is if it acted in bad faith. However, in some circumstances the media had a right to trust certain sources of information (for example, an official police report or a document by other municipal or State authorities). In such cases the media were exempt from the obligation to verify the accuracy of that information. On this point the court noted that the applicants’ neighbours had repeatedly addressed complaints to State and municipal institutions about the applicants’ housing projects. Those complaints had been investigated by the authorities and official replies had been received. For the court, the case file showed that both of the applicants had been held liable under administrative law for rebuilding the house without a permit and for unlawfully occupying State land. Conversely, the applicants’ neighbours had been honest when they addressed the State and municipal institutions, because, as the replies from those institutions indicated, their accusations in respect of the applicants had proved to be true. These were precisely those written replies that were given to the journalist when she was preparing the publication. Given that they were official documents, the journalist had a right to trust their content.
22. The district court also noted that the first applicant had been named in the article as the owner of the plot of land in question. Given that no evidence had been submitted to the court to the effect that the property had been divided between the two applicants, the presumption that the plot of land was joint property of the two applicants as spouses was a valid one. This explained why the article mentioned not only the first applicant but also the second applicant. It was also noteworthy that in the civil court the second applicant had acknowledged that the authorities had ordered a halt to construction on the plot of land belonging to his wife, but argued that they had obeyed the order. However, from the letter of 29 April 2003 (see paragraph 8 above) it was clear that the reference in the article to administrative sanction was correct. As regards the second applicant’s prior work at Inkaras, he himself admitted that he had worked at the Inkaras factory as head of a production unit (cecho viršininkas). Accordingly, the second applicant had failed to prove that his dignity had been insulted because of the published reference to his position at Inkaras.
23. The Vilnius City Second District Court next observed that defamation meant publication of material which did not correspond to reality and which in the light of law and moral and customary norms damaged a person’s honour, dignity or reputation in society. It indicated further that the insulting nature of the material published did not have to be proven if the words or combination of words used were manifestly insulting. The court concluded that the publication at issue did not contain such language. Next, the court noted that in defamation cases the court had to examine the construction of the sentence as well as the whole context of the publication in order to find out the exact meaning of the word or combination of words. The court concluded that the second applicant had indicated only separate sentences but had not had regard to the whole content of the publication.
24. By a ruling of 13 April 2005, the Vilnius Regional Court allowed the second applicant’s claim in part and ordered the daily to print a rectification. Specifically, the documents from the Real Estate Registry showed that the owner of the house and of the plot of land was the first applicant. Consequently, the published material did not correspond to reality, because the evidence of inappropriate use of the property had been linked to the first applicant but not to the second. Similarly, as regards the second applicant’s former post at Inkaras, which belonged to the EBSW group, that statement was misleading, because the second applicant had in fact worked as a director at a [subsidiary] enterprise, Inkaro padai, which he did not deny. The appellate court thus concluded that naming the second applicant separately and together with the first applicant as persons who had broken the law, and linking those breaches of the law to the first applicant’s employment, as well as stating that in the past the second applicant had had links to the EBSW group, was damaging to his authority as a public figure. The court considered that the journalist had deliberately ignored her obligation to provide information that was fair, accurate and impartial, in breach of Article 3 of the Law on the Provision of Information to the Public.
25. On 2 November 2005 the Supreme Court took a final decision in the case. The court indicated that Article 25 of the Lithuanian Constitution guaranteed the right to freedom of expression. Nevertheless, that right was not an absolute one, and had to be exercised taking into account the rights of others as well as the interests of society. Furthermore, Articles 4 and 19 of the Law on the Provision of Information to the Public obliged the media to present information correctly, without bias and in compliance with the requirements of journalistic ethics.
26. As regards the the publication at issue described a situation in which there was conflict among four co-owners of the plot of land over the boundaries of that plot, the applicants’ illegal construction and their unlawful occupation of the neighbours’ and State land. It was clear from the content of the applicants’ neighbours’ complaints to various institutions and the replies they had received that those neighbours were trying to protect their rights which had been breached, and also to make sure that the second applicant, who was a public figure, abided by the law. The neighbours, acting in good faith, gave copies of those complaints and replies to the journalist, who in turn wrote an article on the subject. The first-instance court was correct to find that the official replies from municipal and State institutions, which referred to violations of law committed by both applicants in that they had reconstructed the house without a permit and had also occupied State-owned land and demolished part of a neighbour’s wall, among others, were a sufficient basis for publication of information about a public figure, the second applicant, who had been elected Kaunas city centre elder.
27. The Supreme Court also emphasised that the mere fact that the second applicant was not mentioned in the replies from the municipal authorities did not confirm that the violations could not be linked to him. Despite the fact that the plot of land and the house where both applicants lived were registered in the first applicant’s name, that property had been acquired during their marriage. Accordingly, this was their joint property which they had equal rights to manage and use, in accordance with Article 21 of the Code of Marriage and Family. Moreover, in the event that a co-owner of the property of a public figure exercised their co-ownership rights inappropriately, the public figure (in this case the second applicant) had a duty to control his co-owner’s actions and to prevent violations of the law, as in this case. For the Supreme Court, if a co-owner exercising the joint property rights of both spouses violated the pecuniary and non-pecuniary rights of other persons, the other co-owner incurred liability as well, the more so if that other co-owner was a public figure. Having regard to the above arguments, the Supreme Court concluded that the appellate court had wrongly interpreted Article 3 of the Law on the Provision of Information to the Public and erred in finding that the journalist had deliberately violated that law by breaching her responsibility to present correct, precise and impartial information. The Supreme Court concluded that those errors made the decision of the appellate court invalid. The decision of the first-instance court was upheld.
28. Article 22 of the Lithuanian Constitution provides that the private life of a person is inviolable. Information concerning private life may be collected only in accordance with the law, which protects everyone from arbitrary and unlawful interference and from encroachment upon his or her honour or dignity. Article 25 provides for a right to seek and impart information. This right may not be limited unless it is necessary to do so to protect a person’s private life or dignity.
29. As regards the right to privacy and protection of honour and dignity, the Civil Code reads as follows:
“1. The privacy of a natural person shall be inviolable. Information on a person’s private life may be made public only with his consent ...
3. Establishment of a file on another person’s private life in violation of law shall be prohibited. A person may not be denied access to the information contained in the file except as otherwise provided by the law. Dissemination of information on a person’s private life shall be prohibited unless, taking into consideration the person’s official position and his status in society, dissemination of the said information is in line with a lawful and well-grounded public interest in having the said information.
4. Publication of matters related to a person’s private life, however truthful they may be, as well as making private correspondence public in violation of the procedure prescribed in paragraphs 1 and 3 of the given Article, and invasion of a person’s dwelling without his consent except as otherwise provided by the law, keeping his private life under observation or gathering information about him in violation of law as well as other unlawful acts, infringing the right to privacy, shall all form the basis for bringing an action for compensation for pecuniary and non-pecuniary damage incurred by the said acts...”
“1. A person shall have the right to demand the refutation, in judicial proceedings, of publicised data which abase his honour and dignity and which are erroneous, as well as redress for pecuniary and non-pecuniary damage incurred by the placing in the public domain of the said data ... Data which have been made public shall be presumed to be erroneous unless the publisher proves the opposite to be true.
2. Where erroneous data have been publicised by mass media (including the press, television and radio) the person who is the subject of the publication shall have the right to provide a refutation and demand that the media outlet concerned publish the said refutation free of charge or make it public in some other way ...
3. A request for redress for property, pecuniary or non-pecuniary damage shall be investigated by the court, irrespective of whether or not those responsible for the dissemination of those data have refuted them.
4. Where a media outlet refuses to publish a refutation or make it public in some other way, or fails to do so within the term provided in paragraph 2 of the given Article, the person concerned thereby acquires the right to apply to court in accordance with the procedure established in paragraph 1 of the given Article. The court shall establish the procedure and the term for the refutation of data which were erroneous or abased the person’s reputation.
5. Media outlets which publicise erroneous data abasing a person’s reputation shall provide redress for damage to property, pecuniary and non-pecuniary damage incurred only in cases when it knew or should have known that the data were erroneous, as well as in cases when the data have been made public by its employees or anonymously and the media outlet refuses to name the person who supplied the said data.
6. A person who places erroneous data in the public domain shall be exempted from civil liability in cases when the publicised data relates to a public figure and his State or public activities, and the person who has placed them in the public domain can show that his actions were in good faith and meant to introduce the person and his activities to the public ...”
30. The relevant parts of the Law on the Provision of Information to the Public read as follows:
“1. In the Republic of Lithuania freedom of information is enshrined in the Constitution, this and other laws, and international treaties of the Republic of Lithuania.
2. Producers and disseminators of public information as well as journalists shall be governed in their activities by the Constitution and laws, international treaties of the Republic of Lithuania, also by the principles of humanism, equality, tolerance, and respect for an individual person; they shall respect freedoms of speech, creativity, religion, and conscience, variety of opinion, adhere to the norms of professional ethics of journalists, support the development of democracy and public openness, promote civil society and State progress, enhance State independence, and develop national culture and morality.
3. Public information must be presented in the media fairly, accurately and in an unbiased manner.
4. The use of freedom of information may be restricted by the requirements, conditions, restrictions or penalties set out in the laws and necessary in a democratic society to protect Lithuania’s State security, its territorial integrity, public order and constitutional system, to guarantee the impartiality of its judicial authority in order to prevent law violations and crimes, disclosure of confidential information and protect people’s health and morality as well as their privacy, dignity and rights.
5. Persons shall be held accountable for violating the freedom of information and statutory restrictions on the use of freedom of information in accordance with the procedure established by this and other laws.”
“1. Every person shall have the right to freely express his ideas and convictions. This right encompasses freedom to maintain one’s opinion, to seek, receive and disseminate information and ideas in accordance with the conditions and procedure set out in the laws...”
“1. When producing and disseminating public information, a person’s right to have his personal and family life respected must be ensured.
2. Information about a person’s private life may be published only with the consent of that person, except for the cases specified in paragraph 3 of this Article and if the publication of such information does not cause harm to that person.
3. Information concerning private life may be published without a person’s consent in cases where the publication of such information helps to reveal violations of law or criminal acts, also where such information is presented in open court. Furthermore, information about the private life of a public figure (State political figures, public servants, heads of political parties and public organisations, as well as other persons participating in public or political activities) may be made public without his consent where such information discloses the circumstances of the aforementioned person’s private life or his personal characteristics which are of public significance ...”
“...
2. It shall be prohibited to disseminate disinformation and information which is slanderous and offensive to a person or degrades human dignity and honour...”
31. The Law on Civil Service provides that the civil service is based on the principles of rule of law, transparency and responsibility for the decisions taken. One of the basic principles of conduct for civil servants is exemplariness: he or she must duly perform his or her duties and be of irreproachable reputation, respectful and orderly (Article 3).
32. The Law on Local Government provides that the neighbourhood (seniūnija) is a structural territorial unit of a municipality. The neighbourhood is headed by the elder (seniūnas), who is appointed by the director of the municipal administration in accordance with the Law on Civil Service. The elder carries out internal management of the neighbourhood (Articles 30 and 31).
33. On 15 May 1998 the Supreme Court adopted a ruling concerning courts’ practice in civil cases concerning protection of honour and dignity (Teismų praktika, 1998, Nr. 9). The court ruled that a person’s privacy and his or her honour and dignity should be protected when it is established that information about him has been disseminated without his consent and in the absence of lawful public interest. When assessing non-pecuniary damage caused it was important to take into account such criteria as the form and the manner of dissemination, the guilt of the defendant, and the content of the information.
34. Article 21 of the Code of Marriage and Family (Santuokos ir šeimos kodeksas) provided that property obtained by spouses during their marriage was their common and joint property. They had equal rights to manage and use that property. Even if the property had been registered in the name of one of the spouses, it was considered to belong to both spouses.
35. Article 17 of the International Covenant on Civil and Political Rights, acceded by Lithuania on 20 November 1991, provides that no one shall be subjected to arbitrary or unlawful interference with his privacy, nor to unlawful attacks on his honour and reputation. Everyone has the right to the protection of the law against such interference or attacks.
NON_VIOLATED_ARTICLES: 8
NON_VIOLATED_PARAGRAPHS: 8-1


ITEMID: 001-94406
LANGUAGEISOCODE: ENG
RESPONDENT: ROU
BRANCH: CHAMBER
DATE: 2009
DOCNAME: CASE OF CONSTANTIN AND STOIAN v. ROMANIA
IMPORTANCE: 3
CONCLUSION: Remainder inadmissible;Violation of Art. 6-1;Non-pecuniary damage - award;Pecuniary damage - claim dismissed;Damage - claim dismissed
JUDGES: Corneliu Bîrsan;Egbert Myjer;Ineta Ziemele;Josep Casadevall;Luis López Guerra
TEXT: 4. The applicants were born in 1979 and 1971 respectively. The first applicant lives in Bucharest, and the second in Afumaţi, Ilfov county.
5. On 11 November 2003 the prosecutor started criminal proceedings against “George” and “Florin”, later identified as the applicants, based on information that they were trafficking in drugs. No other details were given in this decision of the prosecutor.
6. On 18 November 2003 the police division responsible for the fight against organised crime and drug trafficking (“the police”) sought authorisation from the prosecutor’s office to use an undercover agent and to obtain two grammes of heroin in order to gather evidence of the applicants’ alleged involvement in drug trafficking. It relied on Law no. 143/2000 on the fight against drug trafficking and illegal drug use (“Law no. 143”). The same day, the organised crime and drug trafficking section of the prosecutor’s office at the Bucharest Court of Appeal (“the prosecutor’s office”) authorised the operation for ten days and handed over the two grammes of heroin to the undercover agent (referred to in the domestic proceedings as “Alex 1”).
7. The police set up the surveillance operation in the car park of McDonald’s Dristor (Bucharest), where the trafficking was thought to happen. Meanwhile G.M., a police collaborator (referred to in the domestic proceedings as “Alex 2”), set up a meeting with the first applicant, whom he had known previously.
8. At 13.45 Alex 1 arrived by car in the parking area together with Alex 2. The first applicant and another man were sitting in another car. Alex 2 got out and approached the applicant; he was to tell him that Alex 1, whom the applicant did not know, wanted to contact a person who could sell him two grammes of heroin. After a short talk, Alex 2 returned accompanied by the first applicant; the latter then left by car with Alex 1. The police followed the car until it stopped in front of a building on Zizin Street. The applicant made a phone call from Alex 1’s mobile phone. He left the car and entered the building, where he remained for 10-15 minutes. He then returned with the second applicant to Alex 1’s car. The first applicant took the right front seat, while the second applicant remained standing near the right front door of the car. Alex 1 handed money to the first applicant; the latter passed it to the second applicant who took it and walked away.
9. At that moment the police got out of their cars and shouted: “Police, stop!”. The second applicant started running, abandoning his jacket and the money. He managed to escape into one of the neighbouring buildings.
10. The first applicant was identified and searched. Sixteen tablets of methadone were found on him. He admitted that the tablets belonged to him and declared that he was a rehabilitated drug user and was authorised to take methadone. A small package containing 1.5 g of heroin was visible in the car near the gear lever. The police seized it.
11. The same day a search was conducted in the flat from where the second applicant had come, and where he lived with S.F., his partner. No drugs were found.
12. The first applicant was taken into custody for 24 hours, but released on 19 November 2003. While in custody, he was taken to hospital under suspicion that he had swallowed a package of heroin. The treatment did not confirm the suspicions.
13. The second applicant was apprehended on 18 May 2004 after being noticed on the street by Alex 1. He was taken into police custody. On 20 May 2004 the Bucharest County Court ordered his pre-trial detention for thirty days. His detention was subsequently extended by the court every thirty days until the end of the proceedings before the first-instance court.
14. On 18 November 2003 the first applicant made a statement to the police, in the presence of a lawyer. He admitted to having facilitated the drugs sale between Alex 1 and the second applicant. He stated that he had taken the money from Alex 1 and handed it to the second applicant, who had then put a small bag of heroin near the gear lever. He also stated that he had obtained the methadone tablets from a nurse in Badgasar Hospital in exchange for a bag of coffee.
15. The prosecution file contains a second statement in the same terms, which is not dated and is signed only by the first applicant. He claimed it had been taken the same day, on his arrest.
16. The next day, however, the first applicant, in the presence of his lawyer, changed his position and stated before the Bucharest County Court that he was not a drug dealer and had not taken drugs for two years. He also stated that G.M. had requested him to make the second applicant come out of his house, where the police would be present. He had only agreed to help because he understood that it was a covert police operation. He maintained that an exchange of money for a small bag had occurred between Alex 1 and the second applicant. He also confirmed that the sixteen tablets of methadone were for his own use and that he had obtained them without prescription.
17. When interviewed by the prosecutor on 5 and 7 July 2004 the first applicant took the same position as before the County Court. He explained that he had given the statement of 18 November 2003 thinking that he would be participating in the criminal proceedings only as a witness and not as an accused.
18. On 19 May 2004 the second applicant told the prosecutor that he had not handed anything to the first applicant, that he had not known what the small package found in the car contained and that he had only agreed to accompany the first applicant to the car because the latter had told the second applicant that he had money for the second applicant’s partner, S.F. He also declared that at that moment he had not known that S.F. was a drug dealer. On 1 March 2004 S.F. was also arrested for drug trafficking in the context of a separate investigation.
19. The second applicant maintained his above statements on 20 May 2004 before the Bucharest County Court and on 7 July 2004 in an interview with the prosecutor.
20. On 12 July 2004 the prosecutor’s office indicted the applicants for possession and sale of dangerous drugs in violation of Law no. 143. It established, based on the evidence gathered, that the second applicant had given the small bag of heroin to the first applicant, who had handed it to Alex 1, and that in exchange Alex 1 had given him the money, which he had then handed to the second applicant.
21. The prosecutor noted that the first applicant had been found guilty of possession and consumption of drugs in 2001 and that the second applicant had no known criminal record.
22. The applicants gave statements on 7 September 2004. The first applicant reiterated that he had only agreed to contact the second applicant because he had been informed of the covert police operation. The second applicant maintained his position and denied trafficking in drugs.
23. The undercover agent and the collaborator supported the prosecutor’s version of the facts and maintained that the first applicant had not been aware of the police operation.
24. Some of the witnesses who had been unfavourable to the applicants during the investigations changed their statements before the court and claimed that they had signed without reading statements drafted entirely by the police.
25. At the hearing on 20 May 2005, after several reminders left unanswered by the prosecutor’s office, the applicants’ lawyers no longer insisted on obtaining an answer concerning the fate of the bag of heroin released to Alex 1 for the covert operation.
26. On 25 May 2005 the Bucharest County Court gave judgment, acquitting the applicants. It considered that the elements in the file indicated that on 18 November 2003 the police had sought to provoke a drug sale and had failed. Consequently, the heroin received by Alex 1 from the prosecutor’s office had been placed in the car to prove the alleged commission of the criminal offence. The court also noted that the criminal proceedings had been started illegally on 11 November as at that date there had been no relevant information on the applicants’ alleged criminal behaviour, and the facts under investigation had only taken place on 18 November. It also noted that the exchange of money for drugs was not proved, and that the witnesses could not support the prosecution’s version. The court ordered the second applicant’s immediate release.
27. On 3 October 2005 the appeal proceedings started before the Bucharest Court of Appeal, on an application lodged by the prosecutor’s office. The Court of Appeal heard evidence from the prosecutor and the applicants’ lawyers. The applicants used their right to address the court before the end of the hearing (ultimul cuvânt al inculpatului). No other evidence was requested by the parties or heard by the court.
28. On 10 October 2005 the Court of Appeal convicted and sentenced the first applicant to seven year’s imprisonment and the second applicant to six years’ imprisonment. It considered that the detailed description of the events made by the undercover agent and the collaborator should have been given more weight as they corroborated the police reports on the arrest in flagrante delicto and thus reflected the truth. The court decided that the first applicant had not been honest in his statements and that he had only claimed to have been aware of the covert police action because he knew from his own experience that collaborators were protected by law. It also concluded that the second applicant’s aim had been to protract the investigations. The court took the fact that the witnesses changed their position as proof of their dishonesty.
The Court of Appeal set aside the County Court’s finding of incitement as follows:
“The court considers, unlike the first-instance court, that Article 68 §§ 1 and 2 of the Code of Criminal Procedure is not applicable so long as the evidence does not show that Constantin Marius Georgian was threatened or coerced to commit the facts. Likewise it is not proved that he was persuaded by the police to commit a crime, ... he agreed to facilitate the drug sale, but no longer admitted to it before the court.”
It considered the arguments based on the origin of the heroin found as follows:
“... Constantin Marius Georgian himself stated when apprehended by the police and in subsequent statements that the drugs found in the car had been handed over by Stoian Florin, in exchange for 6,000,000 lei.”
29. The first applicant was also convicted of illegal possession of sixteen tablets of methadone.
30. The court deducted the second applicant’s preventive detention from “19 May 2004 to 25 May 2004”. It also confiscated, under Article 17 § 1 of Law no. 143/2000, the eight tablets of methadone and 1.48 g of heroin left after the laboratory tests from the first and the second applicant respectively.
31. On 11 May 2006 the High Court of Cassation and Justice upheld the conviction following an appeal on points of law lodged by the applicants.
It also corrected the material error in the appeal decision concerning the second applicant’s preventive detention, and in an interlocutory judgment of 14 July 2006 noted that he had been detained from 19 May 2004 to 25 May 2005.
32. On 7 July 2004 and on 2 June and 16 August 2006 the applicants lodged criminal complaints against G.C., the prosecutors in charge of their investigation, the undercover agent and the witnesses alleging that they had given false testimony to the investigative authorities. In addition, the first applicant, in the appeal of 7 July 2004, complained that several items adduced by him as evidence had disappeared from the criminal file. On 11 October 2004 and 23 May and 13 June 2007 the prosecutor’s office at the High Court of Cassation and Justice decided not to prosecute G.C. and Alex 1. On 25 February 2008 a similar decision was taken in respect of the witnesses by the prosecutor’s office at the Bucharest District Court.
33. Article 68 of the Code of Criminal Procedure reads as follows:
“1. It is forbidden to use violence, threats or other means of coercion, as well as inducements, in order to obtain evidence.
2. It is also forbidden to incite a person to commit or continue committing a criminal offence for the purpose of obtaining evidence.”
34. The relevant provisions of Law no. 143 read as follows:
“In the present Act the terms and expressions below shall have the following meaning:
...
(k) Undercover agents: police officers specifically designated to carry out, with the prosecutor’s authorisation, investigations with a view to collecting data regarding the existence of the offence and the identification of the offender and precursory acts, under another identity than their real one. Such authorisation shall be conferred for a limited time only.”
“1. The prosecutor may authorise the use of undercover agents to determine the facts, identify the offender and obtain evidence where there is good reason to believe that a criminal offence as defined in the present Act has been perpetrated or is about to be committed.”
“1. Police officers from the special units who act as undercover agents, as well as persons acting with them, shall be allowed to procure drugs, base and compound chemical substances with the prosecutor’s prior authorisation, with a view to discovering criminal activities and identifying the persons involved in such activities.
2. The results of the actions of the police officers and persons acting with them referred to in paragraph 1 may constitute evidence.”
35. The Council of Europe’s texts on the use of special investigative techniques are detailed in Ramanauskas v. Lithuania [GC], no. 74420/01, §§ 35-37, ECHR 2008....
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-101688
LANGUAGEISOCODE: ENG
RESPONDENT: SVK
BRANCH: COMMITTEE
DATE: 2010
DOCNAME: CASE OF MAJTAS v. SLOVAKIA
IMPORTANCE: 4
CONCLUSION: Violation of Art. 6-1
JUDGES: Ján Šikuta;Lech Garlicki
TEXT: 4. The applicant was born in 1959 and lives in Bratislava.
5. On 3 September 1996 the applicant filed an action with the Bratislava II District Court. He claimed reimbursement of a purchase price.
6. On 4 May 2005 the Constitutional Court found that the applicant's right to a hearing without unjustified delay had been violated, awarded him the equivalent of 1,782 euros (EUR) at that time as just satisfaction, ordered the court concerned to avoid any further delay in the proceedings and to reimburse the applicant's legal costs.
7. On 30 May 2006 the district court delivered a judgment.
8. On 31 October 2007 the Bratislava Regional Court, on the defendant's appeal, quashed the first-instance judgment and remitted the case for further examination to the district court.
9. On 22 September 2009 the district court delivered a judgment. Following the defendant's appeal, the proceedings are pending before the Regional Court.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-88425
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: ADMISSIBILITY
DATE: 2008
DOCNAME: DONOHOE v. THE UNITED KINGDOM
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: David Thór Björgvinsson;Giovanni Bonello;Lech Garlicki;Ledi Bianku;Mihai Poalelungi;Nicolas Bratza
TEXT: The applicant, Mr Stephen Atkin Donohoe, is a British national who was born in 1948 and lives in Gloucestershire. He was represented before the Court by Mr John Dow a solicitor practising in Gloucestershire. The United Kingdom Government (“the Government”) were represented by their Agent, Mr C. Whomersley of the Foreign and Commonwealth Office.
The facts of the case, as submitted by the parties, may be summarised as follows.
The applicant’s wife died on 9 October 1999. His claim for widows’ benefits, namely Widow’s Payment (“Wpt”) and Widow’s Pension (“WP”), was made on 2 April 2002 and was rejected on 4 April 2002 on the ground that he was not entitled to widows’ benefits because he was not a woman. This decision was confirmed by an appeal tribunal on 24 April 2002. The applicant did not appeal further as he considered or was advised that such a remedy would be bound to fail since no such social security benefits were payable to widowers under United Kingdom law.
The domestic law relevant to this application is set out in Willis v. the United Kingdom, no. 36042/97, §§ 1426, ECHR 2002-IV and Runkee and White v. the United Kingdom, no. 42949/98, §§ 40-41, 25 July 2007.


ITEMID: 001-58228
LANGUAGEISOCODE: ENG
RESPONDENT: BGR
BRANCH: GRANDCHAMBER
DATE: 1999
DOCNAME: CASE OF NIKOLOVA v. BULGARIA
IMPORTANCE: 1
CONCLUSION: Preliminary objection rejected (non-exhaustion of domestic remedies, estoppel);Violation of Art. 5-3;Violation of Art. 5-4;Not necessary to examine Art. 13;Pecuniary damage - claim dismissed;Non-pecuniary damage - finding of violation sufficient;Costs and expenses partial award - Convention proceedings
JUDGES: Luzius Wildhaber
TEXT: 8. The applicant, Mrs Ivanka Nikolova, is a Bulgarian national born in 1943 and residing in Plovdiv.
9. The applicant used to work as a cashier and accountant in a State-owned enterprise.
An audit undertaken in the enterprise at the beginning of 1995 revealed a cash deficit of 1,290,059 levs.
In February 1995 the applicant was given a copy of the final act of the audit, which contained the auditors’ opinion that, inter alia, she had made deliberately false entries in the accounting books and had thus misappropriated funds.
10. On 15 March 1995 criminal proceedings were brought against the applicant. In the following months the investigator (следовател), Mr S., questioned her in the framework of these proceedings.
11. On 24 October 1995 the applicant was arrested and charged under Article 203 § 1 in conjunction with Article 201 of the Criminal Code (Наказателен кодекс) with misappropriation of funds in large amounts.
12. On 24 October 1995 investigator S. heard the applicant in the presence of her lawyer and decided to detain her on remand. On the same day, without having heard the applicant, a prosecutor from the Regional Prosecutor’s Office (Окръжна прокуратура) in Plovdiv confirmed the investigator’s decision to detain her.
13. On 6 November 1995 the applicant appealed against her detention to the Chief Public Prosecutor’s Office (Главна прокуратура). In accordance with the established practice the applicant’s lawyer lodged the appeal with the Regional Prosecutor’s Office. He stated that the applicant had not attempted to abscond or to obstruct the investigation during the six months since she had become aware of the criminal charges against her; that she was no longer working as a cashier or accountant and could not, therefore, commit other crimes; and that the applicant had undergone gynaecological surgery and had still not recovered completely.
14. On 9 November 1995, before transmitting the appeal to the Chief Public Prosecutor’s Office, a prosecutor of the Regional Prosecutor’s Office confirmed the decision to detain the applicant on remand. The prosecutor found that the applicant was charged with a serious crime punishable by more than ten years’ imprisonment and that “therefore, the [detention on remand] [was] lawful: it [was] based on the imperative provision of Article 152 § 1 of the Code of Criminal Procedure (Наказателно процесуален кодекс)” (see paragraph 30 below). The prosecutor further stated that the question whether or not Article 152 § 2 of the Code should be applied was to be assessed by the investigator and by the supervising prosecutor. In the applicant’s case the investigator and the supervising prosecutor had not applied Article 152 § 2 of the Code “in view of the current stage of the proceedings”. It followed that the applicant’s detention was lawful.
15. By decision dated 15 December 1995 and registered on 28 December 1995 the Chief Public Prosecutor’s Office dismissed the applicant’s request for release. A further appeal against her detention on remand was dismissed by the Chief Public Prosecutor’s Office by a letter of 12 January 1996.
16. On 14 November 1995 the applicant appealed to the Plovdiv Regional Court (Окръжен съд) against her detention on remand. In his written submissions to the Court the applicant’s lawyer stated, inter alia, that the decision to detain the applicant on remand had been based solely on the gravity of the charges against her whereas other important factors had not been taken into account. Thus, the applicant had a permanent address where she lived with her husband and two daughters. Also, the applicant had known about the criminal charges against her for more than six months prior to her arrest but had made no attempt to abscond or obstruct the investigation. Furthermore, the evidence against the applicant was weak, it having been established that six other persons had been in possession of a key to the cashier’s office. The prosecutor had blindly followed the conclusions of the auditors who had pointed to the applicant on the sole ground that she had been the person in charge. However, there was nothing to show that the applicant had been the author of the false entries in the accounting books. The applicant’s lawyer also invoked his client’s medical condition and enclosed medical certificates.
17. In accordance with the established practice the applicant’s lawyer lodged his appeal and submissions through the Regional Prosecutor’s Office.
18. On 4 December 1995 the Regional Prosecutor’s Office transmitted the appeal together with the investigator’s file to the Regional Court. The covering letter, prepared by the prosecutor, stated, inter alia:
“I consider that the appeal should be dismissed and that the detention on remand should be confirmed as being lawful. The charges concern a serious wilful crime within the meaning of Article 93 § 7 of the Criminal Code and, [therefore], in accordance with Article 152 § 1 of the Code of Criminal Procedure, the imposition of detention is obligatory.
The present case does not fall under Article 152 § 2 of the Code of Criminal Procedure: [it] does not involve a situation where the accused has no possibility of absconding or reoffending, as required by the Supreme Court’s practice [follows a reference to the Supreme Court’s practice – see paragraph 31 below].”
19. On 11 December 1995 the court examined the case in camera, without the participation of the parties, and dismissed the appeal. The court stated, inter alia:
“[The charges against the applicant] concern a serious crime within the meaning of Article 93 § 7 of the Criminal Code, that is, a crime under Article 203 of the Criminal Code, punishable by ten or more years’ imprisonment. In this respect there exists the requirement, under Article 152 § 1 of the Code of Criminal Procedure, that detention on remand shall be imposed.
... [The medical certificates submitted by the applicant] reflect her state of health during a past period of time. No information concerning her current state of health has been submitted. It follows that currently there exist no circumstances requiring the modification of the measure ‘detention on remand’ imposed on the [applicant]. Therefore the appeal is ill-founded and must be dismissed.”
20. On 19 January 1996 the applicant was examined by three medical experts who had been asked by the investigator in her case to establish, inter alia, whether the conditions of detention were dangerous for her health. In a report of the same date the experts found that the problems related to the surgery which she had undergone more than a year ago did not affect her condition, and that she could remain in detention.
21. On 5 February 1996 the applicant was urgently transferred to hospital due to pain in her gall bladder. On the same day she underwent surgery.
22. On 15 February 1996 the investigator in the applicant’s case appointed another group of medical experts to examine the applicant. The experts found that the applicant needed a convalescence period which was incompatible with the conditions in detention.
23. On 19 February 1996 the applicant’s detention on remand was discontinued in view of her health problems by an order of the Regional Prosecutor’s Office. The applicant was put under house arrest.
24. In June 1996 the investigator concluded his work on the case and sent the file to the Regional Prosecutor’s Office with a proposal to submit an indictment in court. On an unspecified date the competent prosecutor returned the case to the investigator for further clarifications.
25. According to the relevant provisions of the Code of Criminal Procedure and to legal theory and practice, the prosecutor performs a dual function in criminal proceedings.
During the preliminary stage he supervises the investigation. He is competent, inter alia, to give mandatory instructions to the investigator; to participate in examinations, searches or any other acts of investigation; to withdraw a case from one investigator and assign it to another, or to carry out the entire investigation, or parts of it, himself. He may also decide whether or not to terminate the proceedings, order additional investigations, or prepare an indictment and submit the case to court.
At the judicial stage he is entrusted with the task of prosecuting the accused.
26. The investigator has a certain independence from the prosecutor in respect of his working methods and particular acts of investigation, but performs his functions under the latter’s instructions and supervision (Articles 48 § 2 and 201 of the Code of Criminal Procedure). If an investigator objects to the prosecutor’s instructions, he may apply to the higher prosecutor, whose decision is final and binding.
27. Under Article 86 of the Code of Criminal Procedure, the prosecutor and the investigator are under an obligation to collect both incriminating and exonerating evidence. Throughout criminal proceedings, the prosecutor must “effect a supervisory control of lawfulness” (Article 43 of the Code).
28. An accused can be detained on remand by decision of an investigator or prosecutor. In cases where the decision to detain has been taken by an investigator without the prior consent of a prosecutor, it must be approved by a prosecutor within twenty-four hours. The prosecutor usually makes this decision on the basis of the file, without hearing the accused (Code of Criminal Procedure, Articles 152, 172, 201-03 and 377-78).
29. There is no legal obstacle preventing the prosecutor who has taken the decision to detain an accused on remand, or who has approved an investigator’s decision, from acting for the prosecution against the accused in any subsequent criminal proceedings. In practice this frequently occurs.
The Supreme Court has found that a former investigator who was appointed prosecutor may represent the prosecution at the trial of the same accused person on whose case he had been working as an investigator. As both the investigator and the prosecutor performed investigative functions there was no legal obstacle (реш. от 9.5.1995 по н.д. No. 125/95 на ВС II н.о., бюл. кн. 5/96, стр. 7).
30. Article 152 §§ 1 and 2 provides as follows:
“(1) Detention on remand shall be imposed [in cases where the charges concern] a serious wilful crime.
(2) In the cases under the preceding paragraph [detention on remand] may not be imposed if there is no danger of the accused absconding, obstructing justice or reoffending.”
“(1) Мярка за неотклонение задържане под стража се взема за тежко умишлено престъпление.
(2) В случаите по ал. 1 мярката за неотклонение може да не се вземе, ако няма опасност обвиняемият да се укрие, да осуети разкриването на обективната истина или да извърши друго престъпление.”
According to Article 93 § 7 of the Criminal Code a crime is “serious” if it is punishable by more than five years’ imprisonment.
31. According to the Supreme Court’s practice Article 152 § 1 of the Code of Criminal Procedure requires that a person charged with a “serious wilful crime” shall be detained on remand. The only exception is provided for under Article 152 § 2 of the Code, which empowers the prosecutor not to detain an accused where it is clear, beyond doubt, that there is no danger of absconding or reoffending. Such danger must be objectively excluded as, for example, in the case of an accused who is seriously ill, or aged, or who is detained on other grounds such as serving a sentence (опред. No. 1 от 4.5.1992 по н.д. 1/92 на ВС II н.о., Сб. 1992/93, стр. 172; опред. No. 4 от 21.2.1995 по н.д. 76/95 на ВС II н.о.; опред. No. 78 от 6.11.1995 по н.д. 768/95 на ВС II н.о.; опред. No. 24 по н.д. 268/95 на ВС, I н.о., Сб. 1995, стр. 149).
32. In some more recent decisions the Supreme Court has nevertheless embarked on analysis of the particular facts to justify findings that there existed a danger of absconding or reoffending (опред. No. 76 от 25.7.1997 по н.д. No. 507/97 на ВС II н.о., бюл. кн. 9-10/97, стр. 5; опред. No. 107 от 27.5.1998 по н.д. 257/98 на ВС II н.о., бюл. кн. 3-4/98, стр. 12).
33. Article 152 § 5 of the Code of Criminal Procedure, as in force at the relevant time, provided as follows:
“The detained person shall be provided immediately with a possibility of filing an appeal before the competent court against the [imposition of detention]. The court shall rule within a time-limit of three days from the filing of the appeal by means of a final decision.”
“На задържания се осигурява незабавно възможност да обжалва мярката за неотклонение пред съответния съд. Съдът се произнася в тридневен срок от подаването на жалбата с определение, което е окончателно.”
34. The First Criminal Division of the Supreme Court has held that, in deciding on appeals against detention on remand, it is not open to the court to inquire whether there exists sufficient evidence supporting the charges against the detainee, but only to examine the lawfulness of the detention order (опред. No. 24 от 23.5.1995 по н.д. 268/95, I н.о. на ВС, Сб. 1995, стр. 149).
35. According to the practice at the relevant time, the court examined appeals against detention on remand in camera, without the participation of the parties. If the appeal was dismissed, the court did not notify the detained person of the decision taken. An amendment of the Code of Criminal Procedure of August 1997 introduced the requirement that appeals against detention on remand be examined at a hearing with the participation of the detainee.
36. In a decision of 17 September 1992 the First Criminal Division of the Supreme Court found that the imposition of detention on remand could be contested before a court only once (опред. No. 94 по н.ч.х.д. 754/92, I н.о. на ВС, Сб. 1992-93, стр. 173). Until the amendment of the Code of Criminal Procedure in August 1997 periodic judicial review of the lawfulness of detention on remand was only possible at the trial stage, when the criminal case was pending before a court.
VIOLATED_ARTICLES: 5
VIOLATED_PARAGRAPHS: 5-3
5-4


ITEMID: 001-98833
LANGUAGEISOCODE: ENG
RESPONDENT: ALB
BRANCH: CHAMBER
DATE: 2010
DOCNAME: CASE OF BERHANI v. ALBANIA
IMPORTANCE: 3
CONCLUSION: Remainder inadmissible;Violation of Art. 6-1;No-violation of Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - award
JUDGES: David Thór Björgvinsson;Giovanni Bonello;Ján Šikuta;Ledi Bianku;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä
TEXT: 6. The applicant was born in 1972 and is serving a prison sentence in Tirana Prison in Albania.
7. On the early morning of 5 July 1996 a murder took place in a bar in Kuçovë, committed by two persons wearing motorcycle helmets (kokore).
8. In the evening of the same day, the applicant was arrested on suspicion of premeditated murder while walking on a secondary road. The applicant fitted the description given to the police, namely that one of the perpetrators had long hair. The applicant was placed in pre-trial detention. The other perpetrator of the murder remained unidentified and could not be traced.
Witnesses J., K. and L. made statements to the investigation team on that day in the absence of the applicant's counsel. Whereas the content of such statements was not submitted by the parties, it would appear that they implicated the applicant in the commission of the murder.
9. The police searched the route the applicant had travelled and they found a red motorcycle with a flat front tyre a few kilometres away.
10. On 6 July 1996 the prosecutor requested the validation of the applicant's arrest. On 7 July 1996 the Kuçovë District Court ordered the applicant's release for lack of reasonable suspicion and evidence. The applicant was represented by his lawyer A.
11. On 9 July 1996 the prosecutor appealed.
12. On 19 July 1996 the Tirana Court of Appeal quashed the Kuçovë District Court's decision and remanded the applicant in custody. The applicant could not be arrested as he had fled the country after his release on 17 July 1996, fearing a vendetta by the victim's relatives. It would appear that a few years prior to the murder, the victim had murdered the applicant's brother.
13. A report on the examination and collection of material evidence of 5 July 1996 (proces-verbal për kqyrjen dhe sekuestrimin e provave materiale) contained information about the finding of seven bullet cartridges at the crime scene which were taken for ballistics examination. It was reported that the perpetrators had been on a red motorcycle and one of them had long hair.
14. A body search report (process-verbal i kontrollit personal) of the applicant, at the time of the arrest, stated that he was found to have “...one belt with a metal stud (me një tokëz metalike).” No other items were recorded in the body search report.
15. Another report on the examination and collection of material evidence contained information about a red Suzuki motorcycle found on the side of the road between Kuçovë and Fier.
16. There is no documented information regarding any developments from 19 July 1996 to 6 January 1997. It appears that on an unspecified date the proceedings were transferred to the Berat District Court (“the District Court”).
17. On 6 January 1997 the applicant was declared a fugitive, following unsuccessful efforts by the police to find him. The court assigned lawyer B. to represent him.
18. All hearings scheduled between 11 January 1997 and 28 October 1998 were adjourned. Two hearings scheduled between 15 February and 2 March 1999 were also adjourned owing to the absence of the prosecutor. No witnesses, including police officers, even though they had been summoned by the court, appeared. No other procedural measures were taken.
19. On 18 March 1999 the District Court decided to continue the proceedings in absentia. It was decided that B. would continue to defend the applicant. On the same day B. requested the court to declare the detention report (proces-verbal i kapjes në flagrancë), the personal search report (proces-verbal i kontrollit personal) and the reports on the examination and collection of material evidence null and void. He maintained that the detention report was forged, had been signed at a later stage by police officers and did not bear the signature of the applicant. Moreover, he suggested that the personal search report and the reports on the examination and collection of material evidence had not been prepared by judicial police officers in accordance with the Code of Criminal Procedure. No witnesses appeared on that day and no other evidence was considered by the court.
20. At the hearing of 26 April 1999, witness E., a police officer, testified. He stated that the applicant had been arrested at random together with a number of other young people as one of the suspects. While the other youngsters had been released on the strength of recognition assurances provided by the nearby villagers, the applicant had been taken to the police station as no one could vouch for his identity. E. stated that the applicant was carrying a shopping bag. The applicant was not searched by the police at the time of his arrest. He was not aware of any motorcycle such as had been entered into the record in which his name and signature appeared. The applicant's lawyer questioned the witness.
21. At the hearing of 23 June 1999 three witnesses appeared before the court.
Witness G. testified that he was working at a petrol station when two people he did not know, who were on a motorcycle and wearing helmets, had enquired from a distance about petrol. He stated that he did not remember the colour of the motorcycle or the helmets. Nor had he noticed any particular details about the persons. He could not observe from a distance whether or not the front tyre of the motorcycle was flat.
Witness H. testified that he was three hundred metres away from the crime scene when he saw two people with helmets, one of whom had committed the murder of 5 July 1996. There is no mention that he indicated the applicant as one of the perpetrators.
Witness I. testified that while she had been having her morning coffee on the terrace of the café-bar where the crime occurred, she had heard the waitress scream and had run away. She had neither seen anyone behaving conspicuously nor heard the roar of a motorcycle.
22. At the hearing of 30 September 1999 witness F. gave his testimony. As a police officer, he testified that the applicant had been selected at random, following information the police had received on the radio. It was confirmed, on the basis of a statement by the head of a nearby village, that the applicant had been riding a red motorcycle. The red motorcycle was found six or seven kilometres from the place where the applicant had been arrested. The witness testified that he had not participated personally in the search for the applicant.
23. Between 15 October and 14 December six hearings were adjourned. None of the witnesses, including former police officers, appeared, while the applicant's representative was absent from three of them.
24. At the hearing of 23 December, noting the repeated absence of lawyer B., the court assigned lawyer C. to the applicant. The prosecutor stated that the identity of the head of the village, as mentioned in the testimony of witness F. on 30 September, had been discovered, but he was abroad and could not give his testimony before the court.
25. At the hearing of 12 January 2000 the court rejected the applicant's lawyer's request of 18 March 1999, which referred to the invalidity of several reports. It allowed the prosecutor to proceed with the reading out of the statements of J., K. and L., who had never been questioned by the applicant or his representative as regards their statement. The prosecutor and the applicant's representative made their final submissions.
26. On 12 January 2000 the Berat District Court found the applicant guilty of premeditated murder, acting in collusion with others and illegal possession of firearms. The judgment, which was given in absentia, relied on the above reports and testimonies of witnesses E., F., G., H., I. and statements of J., K. and L. The court sentenced the applicant to eighteen years' imprisonment.
27. On an unspecified date the applicant's father was informed of the Berat District Court's judgment. On 25 September 2000 he appointed a lawyer to lodge an appeal against that judgment. On an unspecified date the lawyer lodged an appeal with the Vlora Court of Appeal. According to the Code of Criminal Procedure, the time-limit for lodging an appeal against a district court's decision is ten days.
28. On 24 November 2000 the Vlora Court of Appeal dismissed the appeal, finding that it did not comply with the prescribed time-limits. It also noted that the date of notification of the Berat District Court's judgment to the applicant's father could not be determined.
29. Meanwhile, on 29 November 2001 the applicant was extradited from Italy, where he had been arrested on the strength of an extradition order from the Albanian authorities.
30. On 30 November 2001, after being granted leave to appeal out of time, the applicant lodged an appeal against the Berat District Court's judgment. He was represented by D., a lawyer of his own choosing. The applicant complained that the District Court's judgment was not adequately reasoned. He pointed out that none of the witnesses had accused him of having committed the crime of 5 July 1996. He questioned how he could have been identified if he had been wearing a motorcycle helmet. He also objected to the reading out of the statements of witnesses J., K. and L. who had never been questioned or examined before the District Court.
31. On 19 March 2002 the Vlorë Court of Appeal (“the Court of Appeal”) upheld the Berat District Court's judgment. It dismissed the applicant's request by relying on the witnesses' testimonies and the reading out of statements, which it found to be valid. Of the three judges who decided the case, two (Gj.G. and A.M.) had been members of the panel which had dismissed the applicant's appeal on 24 November 2000.
32. On 16 April 2002 the applicant lodged an appeal with the Supreme Court. He complained that the personal search report, the reports on the examination and collection of material evidence taken at the investigation stage, and the reading out of statements of witnesses who had not been questioned during the criminal investigation, were invalid. He also argued that it was impossible for the witnesses to have identified him as the perpetrator of the crime, since the offender had allegedly been wearing a helmet. As regards the charge of the illegal possession of firearms, he claimed that there was no evidence to prove that he had used any weapons.
33. On 25 October 2002 the Supreme Court declared his appeal inadmissible, using standard wording (“the grounds of the appeal fall outside the scope of Article 472 of the Code of Criminal Procedure”).
34. On 8 May 2004 the applicant lodged a constitutional complaint. In addition to complaining of the unfairness of trial and appeal proceedings, he also complained that the Court of Appeal's bench of 19 March 2002 was not impartial.
35. On 21 June 2004 the Constitutional Court, sitting as a bench of three judges, declared the applicant's complaints inadmissible. It held that the applicant's complaints did not raise any fair trial issues, but mainly concerned the assessment of evidence, which was the function of the lower courts.
Article 42 § 2
“In the protection of his or her constitutional and legal rights, freedoms and interests, or in defending a criminal charge, everyone has the right to a fair and public hearing, within a reasonable time, by an independent and impartial court established by law.”
Article 131
“The Constitutional Court shall decide: ...
(f) in a ruling that shall be final, complaints by individuals alleging a violation of their constitutional rights to a fair hearing, after all legal remedies for the protection of those rights have been exhausted.”
Article 142 § 1
“Judicial decisions must be reasoned.”
37. On 21 July 2009 the Constitutional Court examined an appellant's constitutional appeal for breach of his right to a fair hearing within a reasonable time as a result of the delayed enforcement of a final ruling in his favour. In a reasoned decision, the Constitutional Court, sitting as a full bench, dismissed the appellant's constitutional appeal finding that there had been no breach of the right in question.
38. There is no reported case-law in which the Constitutional Court has examined the length of criminal proceedings.
Article 171: Identification of persons
“1. When the need arises to conduct the identification of a person, the proceeding authority invites the person who must conduct the identification to describe the person (to be identified), relating all the features he or she remembers and that person is asked whether he/she has been previously summoned to do the identification and about other circumstances, which may contribute to the accuracy of the identification.
2. Actions provided for by paragraph 1 and statements made by the person who does the identification are entered in the records.
3. Non-compliance with the provisions of paragraphs 1 and 2 is a cause for the invalidity of the identification.”
Article 172: Performing identification
1. The proceeding authority, after taking away the person who will do the identification, ensures the presence of at least two persons, looking as alike as possible, to the person to be identified. It invites the latter to choose his or her place in relation to others, taking care to be portrayed, as much as possible, in the same circumstances under which he or she would have been seen by the person called to do the identification. After the person who will do the identification has appeared, the court asks the latter whether he or she knows any of those presented for identification, and if yes, to point out the person he or she knows and to specify whether he or she is sure.
2. When there are reasons to believe that the person called to do the identification may be afraid or influenced by the presence of the person to be identified, the proceeding authority orders the act to be performed without the latter seeing the former.
3. The records must describe how the identification was performed, failure to do so invalidates the identification. The proceeding authority may order, for records purposes, the performance of the identification to be photographed or filmed.
Article 173: Identification of items
1. When the identification of material evidence or other items relevant to the criminal offence must be performed, the proceeding authority acts in compliance with the rules for identification of persons to the extent that they are applicable.
2. After finding, when possible, at least two similar items to the one to be identified, the proceeding authority asks the person called to identify whether he/she recognises any of them and, if the answer is yes, invites him/her to state which of them he/she recognised and to specify whether he/she is sure.
3. The records must describe how the identification was performed, failure to do so invalidates the identification.
Article 175: Identification of or by several persons
1. When several persons are called to do the identification of the same person or item, the proceeding authority performs it one by one separately, prohibiting any communication between the one who has done the identification and those who will do it subsequently.
2. When a person must identify several persons or items, the proceeding authority orders the person or item to be identified to be placed among different persons or items.
3. The provisions of Articles 171, 172 and 173 of the CCP are applicable.
39. Article 425 establishes the scope of the examination of the appeal by the Court of Appeal. It provides that the examination of the case by the Court of Appeal is not limited to the grounds of appeal, but extends to the whole case.
40. Under Article 427, at the party's request, the Court of Appeal shall be empowered to directly re-examine previous evidence and additional new materials, if it considers necessary.
41. Article 428 establishes which decisions may be taken by the Court of Appeal. It provides that the Court of Appeal may decide to dismiss the appeal and uphold the judgment, to amend the judgment, to quash the judgment and terminate the criminal proceedings, or to quash the judgment and remit the case for a fresh trial.
42. The Court of Appeal's judgments may be appealed to the Supreme Court under Article 432 in the event that: a) the criminal law has not been respected or has been erroneously applied; b) there have been breaches which result in the court's judgment being declared invalid in accordance with Article 128 of this Code; c) there have been breaches of procedural rules that have affected the adoption of the judgment.
43. Article 434 provides that the Supreme Court examines the appeal in so far as points of law have been raised therein.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-85702
LANGUAGEISOCODE: ENG
RESPONDENT: CZE
BRANCH: ADMISSIBILITY
DATE: 2008
DOCNAME: KUDRNAC v. THE CZECH REPUBLIC
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Peer Lorenzen;Rait Maruste;Renate Jaeger;Snejana Botoucharova
TEXT: The applicant, Mr Jaromír Kudrnáč, is a Czech national who was born in 1922 and lives in Náchod. He was represented before the Court by Mr F. Kollman, a lawyer practising in Náchod. On 27 November 2003 the applicant died. By a letter of 1 April 2005 the late applicant’s lawyer informed the Court that his late client’s wife Mrs Ludmila Kudrnáčová wished to pursue the application in his stead. The Czech Government (“the Government”) were represented by their Agent, Mr V.A. Schorm, from the Ministry of Justice.
The facts of the case, as submitted by the parties, may be summarised as follows.
On 28 March 1992 the applicant lodged a restitution action with the Strakonice District Court (okresní soud).
By a judgment of 8 September 1993, the District Court dismissed the applicant’s action. On 18 February 1994 the České Budějovice Regional Court (krajský soud) partly upheld and partly modified the first instance judgment.
On 2 October 1997 the Supreme Court (Nejvyšší soud) dismissed the applicant’s appeal on points of law (dovolání).
On 5 February 1998 the applicant filed a constitutional appeal (ústavní stížnost) through the District Court. However, the constitutional appeal never reached the Constitutional Court.
On 27 November 2003 the applicant died.
On 6 September 2006 the late applicant’s wife applied for compensation pursuant to Act no. 82/1998 as amended. She claimed CZK 34,741,000 (EUR 1,343,145) in respect of pecuniary damage, CZK 1,000,000 (EUR 38,662) in respect of non-pecuniary damage and CZK 50,000 (EUR 1,933) in respect of fees incurred in the proceedings before the national courts.
In a letter of 30 October 2006 the Ministry of Justice informed the deceased applicant’s widow that her compensation claim for non-pecuniary damage was statute-barred, the proceedings having terminated in the High Court’s decision of 2 October 1997. The Ministry specified that under section 27(2) of the Constitutional Court Act, the proceedings before the Constitutional Court commence on the day on which the constitutional appeal is submitted to the court. Having regard to the fact that her late husband had filed his constitutional appeal through the District Court, the constitutional proceedings had never been instituted and, therefore, could not be pending before the Constitutional Court as she argued. Moreover, the Ministry found unsubstantiated the widow’s compensation claims in respect of pecuniary damage and court fees.
The relevant domestic law and practice concerning remedies for the allegedly excessive length of judicial proceedings are set out in the Court’s decision in the case of Vokurka v. Czech Republic, no. 40552/02 (dec.), §§ 11-24, 16 October 2007).


ITEMID: 001-61846
LANGUAGEISOCODE: ENG
RESPONDENT: HRV
BRANCH: CHAMBER
DATE: 2004
DOCNAME: CASE OF FREIMANN v. CROATIA
IMPORTANCE: 4
CONCLUSION: Violation of Art. 6-1;Pecuniary damage - claim dismissed
JUDGES: Christos Rozakis
TEXT: 5. The applicant was born in 1941 and lives in Berlin, Germany.
6. On 7 August 1992 her house in Slavonski Brod, Croatia, was blown up by unknown perpetrators.
7. On 4 October 1995 she instituted civil proceedings before the Slavonski Brod Municipal Court (Općinski sud u Slavonskom Brodu) seeking damages from the Republic of Croatia for her damaged property.
8. Pursuant to the Civil Obligations (Amendments) Act 1996 (Zakon o izmjeni Zakona o obveznim odnosima), the Slavonski Brod Municipal Court stayed the proceedings on 28 September 2000.
9. Pursuant to the Damage from Terrorist Acts and Public Demonstrations Act 2003 (Zakon o odgovornosti za štetu nastalu uslijed terorističkih akata i javnih demonstracija), the proceedings resumed on 4 December 2003.
10. The relevant part of the Civil Obligations Act (Zakon o obveznim odnosima, Official Gazette of the Republic of Croatia nos. 53/1991, 73/1991, 3/1994, 7/1996 and 112/1999) read as follows:
“Responsibility for loss caused by death or bodily injury or by damage or destruction of another’s property, when it results from violent acts or terror or from public demonstrations or manifestations, lies with the ... authority whose officers were under a duty, according to the laws in force, to prevent such loss.”
11. The relevant parts of the Civil Obligations (Amendments) Act 1996 (Zakon o izmjeni Zakona o obveznim odnosima, Official Gazette of the Republic of Croatia no. 7/1996, hereinafter “the 1996 Act”) read as follows:
“Section 180 of the Civil Obligations Act ... shall be repealed.”
“Proceedings for damages instituted under section 180 of the Civil Obligations Act shall be stayed.
The proceedings referred to in sub-section 1 of this section shall be continued after the enactment of special legislation governing responsibility for damage resulting from terrorist acts.”
12. The relevant part of the Civil Procedure Act (Zakon o parničnom postupku, Official Gazette of the Republic of Croatia nos. 53/1991, 91/1992, 112/1999 and 117/2003) provides:
“Proceedings shall be stayed:
...
(6) where another statute so prescribes.”
13. The Damage from Terrorist Acts and Public Demonstrations Act 2003 (Zakon o odgovornosti za štetu nastalu uslijed terorističkih akata i javnih demonstracija, Official Gazette of the Republic of Croatia no. 117/2003, hereinafter “the 2003 Act”) provides, inter alia, that the Republic of Croatia is to provide compensation in relation to damage resulting from bodily injury, impairment of health or a death. All compensation for damage to property is to be sought under the Reconstruction Act.
14. The relevant parts of the Reconstruction Act (Zakon o obnovi, Official Gazette of the Republic of Croatia nos. 24/1996, 54/1996, 87/1996 and 57/2000) provide, inter alia, that the means for reconstruction are to be granted to persons whose property was destroyed in the war, under certain conditions. The request is to be submitted to the Ministry for Public Works, Reconstruction and Construction (Ministarstvo za javne radove, obnovu i graditeljstvo).
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-67091
LANGUAGEISOCODE: ENG
RESPONDENT: AND
BRANCH: ADMISSIBILITY
DATE: 2000
DOCNAME: UBACH MORTES v. ANDORRA
IMPORTANCE: 1
CONCLUSION: Inadmissible
TEXT: The applicant [Mr Antoni Ubach Mortes] is an Andorran national, born in 1942. When he lodged his application, he was in Andorra la Vella Prison. He was represented before the Court by Mr M. Tubiana, of the Paris Bar.
The applicant was the director of the Andorran Social Security Fund (CASS) from its inception in April 1968 until 10 June 1993, apart from the period between January 1982 and 1984. The CASS is a quasi-public organisation responsible for the administrative, financial and technical management of the Andorran social security system. At the end of 1986 the CASS had accumulated old-age pension fund reserves of seventeen thousand million pesetas (ESP). The governing body decided, at its meeting on 10 June 1986, to diversify the use of those reserves by earmarking a maximum of 20% for variable-rate investments.
In his capacity as director of the CASS, the applicant followed a policy of investing part of the retirement pension fund by buying company stock or variable-rate securities. In the course of those operations, the applicant became acquainted with a Spanish national, J.M.R., representative and shareholder of a Spanish company called Collins S.A., whose head office was in Madrid. In 1988 the applicant and J.M.R. decided that the CASS’s investments in Spain would be effected through Collins. In order to take up the shareholding in Collins, the applicant used as intermediary the Andorran company, IBERINSA, of which he was a shareholder. On 6 December 1989 the Board of Directors of IBERINSA decided to subscribe to shares in Collins and appointed the applicant to represent it in its dealings with the company.
From then on, according to the judgments delivered by the Andorran courts, the applicant, aided and abetted by J.M.R., began channelling substantial pension funds into investment operations in Spain – on many occasions without the consent or approval of the CASS’s governing body. The CASS incurred losses totalling more than ESP 4,000,000,000 as a result of, inter alia, the depletion by the applicant and J.M.R. of the assets of various companies for the benefit of Collins.
On 16 June 1993 the episcopal batlle (judge) received a complaint from the chairman of the governing body of the CASS informing him that the applicant had received threats from J.M.R. and setting out the situation regarding the administration of the CASS’s pension fund reserves. A preliminary investigation was opened following the complaint, but was discontinued a few days later.
On 15 July 1993 the General Council, the legislative body of the Principality of Andorra to which the applicant regularly had to report on the management of the CASS in his capacity as director thereof, lodged a criminal complaint against the applicant with the French batlle, followed several months later by a further criminal complaint and application to join the proceedings as a civil party. That complaint gave rise to a criminal investigation, which is the subject of this application. The applicant lodged an application with the investigating judge in which he contested the General Council’s locus standi to join the criminal proceedings. His application was dismissed. The applicant appealed to the Tribunal de Corts, which set aside the decision on 7 March 1996 and dismissed the General Council’s complaint and application to join the proceedings as a civil party. There thus remained the public prosecutor as instigator of the criminal proceedings and the CASS as private prosecutor.
The applicant was kept in pre-trial detention from 24 July 1993 until 4 August 1993, then from 15 August 1993 until 3 December 1993, and, lastly, from 29 July 1996 until his conviction on 25 November 1996. In the meantime, the investigating judge issued an arrest warrant against J.M.R. on 23 November 1993.
At the end of the investigation, the public prosecutor lodged his provisional indictment submissions in which he categorised the offence as misappropriating public assets or funds, damaging the economy and forging private and official documents.
At the beginning of his trial in the Tribunal de Corts the applicant complained that the trial was being held in the absence of J.M.R. and requested a stay of proceedings. The court replied that J.M.R. was well aware of the commencement date of the trial since his lawyer had stated at the beginning of the hearing that he had spoken to his client on the telephone and, furthermore, had produced a medical certificate issued on a date very close to that of the trial certifying that he was ill and therefore could not attend court. The court added that as J.M.R. was a Spanish national in Spain, the warrant for his arrest could not be enforced and that any move by the Andorran courts to secure his extradition would be doomed to failure. Accordingly, the court decided to continue with the trial in order, inter alia, to guarantee the applicant his right to have his case heard within a reasonable time in accordance with Article 6 § 1 of the Convention. It also noted that the applicant had not at any time during the investigation requested to cross-examine J.M.R. or to be confronted with him.
In a judgment of 25 November 1996, delivered after public proceedings deemed to be inter partes, the Tribunal de Corts found the applicant guilty of misappropriating public funds and forging official documents. It sentenced him to nine years’ imprisonment and payment to the CASS of ESP 4,414,784,041 in damages. It acquitted him, however, of damaging the economy. The court based its decision on a whole range of evidence freely discussed at a public trial, particularly the applicant’s written statements, the testimony of numerous witnesses, auditors’ reports and documentary evidence.
The applicant appealed to the High Court, contending that his fundamental rights had been breached. In a judgment delivered after adversarial proceedings, the High Court dismissed his appeal on 7 May 1997.
The applicant requested the public prosecutor to lodge an empara appeal against that judgment with the Constitutional Court, which is a remedy for violations of the right to a fair trial guaranteed by Article 10 of the Constitution. On 26 May 1997 the public prosecutor decided to lodge the empara appeal, while disagreeing with the applicant’s allegations.
In a decision of 10 July 1997, the Constitutional Court declared the empara appeal inadmissible. The public prosecutor lodged a súplica appeal with the Constitutional Court, which dismissed it on 17 September 1997 on the ground that it did not satisfy the conditions set out in Article 102 (c) of the Constitution.
Following the entry into force of the 22 April 1999 Act amending the Constitutional Court Act, and pursuant to its third transitional provision, the applicant appealed directly to the Constitutional Court (remedy of empara) on 3 June 1999 against the High Court’s judgment of 7 May 1997 complaining of a violation of his fundamental rights guaranteed by Article 10 of the Convention. In his appeal the applicant alleged the following violations:-
1. Violation of the right to a predetermined impartial tribunal because the investigation of the case had been entrusted to the French batlle and not the episcopal batlle who had examined the first complaint lodged by the chairman of the CASS’s governing body about the threats received by the applicant.
2. Violation of the right to a fair trial on account of the court’s decision to continue with the trial against the defendants present and in the absence of a co-defendant, J.M.R., whom he had been unable to cross-examine or confront.
3. Refusal by the trial and appeal courts to set aside all the investigative measures undertaken during the period in which the General Council was a party to the proceedings as private prosecutor.
4. Violation of the principle of the presumption of innocence on account of the assessment of the evidence made by the trial and appeal courts.
5. Violation of the rule that offences and punishments shall be strictly defined by law on the ground that the offence with which the applicant had been charged did not constitute the offence of misappropriation of public funds defined by Article 106 of the Criminal Code.
In a judgment of 5 November 1999, the Constitutional Court dismissed the empara appeal. With regard to the complaint of an infringement of the right to an impartial and predetermined tribunal, the Constitutional Court concluded, after observing that the applicant had never claimed that the investigating judge had breached his duty of subjective or objective impartiality and examining the provisions of the Code of Criminal Procedure governing conflicts of court jurisdiction, that there had been no violation of the right relied on because the French batlle had begun his investigation after the preliminary investigation opened by the episcopal batlle had been closed. In respect of the complaint that the Tribunal de Corts had decided to continue with the trial notwithstanding the absence of a co-defendant, J.M.R., the Constitutional Court found that the trial court had duly justified its decision on the ground that J.M.R. could not attend trial for health reasons and its conviction that he had no intention of cooperating with the courts. The court held that, while J.M.R.’s absence might have affected some of the evidence the applicant wished to adduce, that had neither prevented him from exercising his defence rights nor, consequently, infringed the constitutional rights on which he had relied. With regard to the General Council’s participation in the proceedings up until the Tribunal de Corts’s decision of 7 March 1996 which excluded it, the Constitutional Court observed that, as the High Court had pointed out, there was nothing to indicate that the General Council’s presence had prevented any investigative measure requested by the applicant from being carried out. As regards the applicant’s complaint that he was systematically excluded during the entire investigation, the Constitutional Court found, inter alia, that the decision to convict had taken account of a whole range of evidence, that the applicant had had the opportunity of informing himself of the investigative measures and that all the evidence he had requested to adduce had been admitted.
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