ITEMID: 001-118970
LANGUAGEISOCODE: ENG
RESPONDENT: CYP;GRC
BRANCH: ADMISSIBILITY
DATE: 2013
DOCNAME: GUNESEL AND OTHERS v. CYPRUS AND GREECE
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: George Nicolaou;Ineta Ziemele;Krzysztof Wojtyczek;Ledi Bianku;Päivi Hirvelä;Zdravka Kalaydjieva
TEXT: 1. The applicants state that they are nationals of the “Turkish Republic of Northern Cyprus”. Their names, dates of birth and places of residence are set out in the Annex. They are represented before the Court by Ms Y. Renda, a lawyer practising in Nicosia.
2. The facts of the cases may be summarised as follows. The applicants are relatives of Turkish-Cypriot men who went missing in either December 1963 or April-May 1964 during incidents of mounting tension and violence in which Turkish Cypriots or Turkish-Cypriot villages were targeted.
3. These men were listed as missing persons, the information being given to the Cypriot authorities, the Red Cross and the United Nations.
4. The remains of the missing men have been found during exhumations carried out by the United Nations Committee for Missing Persons (“CMP”) in 200610.
5. The Government have submitted that investigations had been commenced in all cases. The police had taken statements from relatives of the victims, taken steps to pursue investigation in the various localities and to trace police officers stationed there at the relevant time, to locate witnesses and to seek information from local inhabitants as to the transportation, murder and burial of the victims;
6. The applicants have submitted that it is not apparent that any progress has been made in the investigations and that they have not been given any copies of reports, witness statements or information gathered from various sources.


ITEMID: 001-22811
LANGUAGEISOCODE: ENG
RESPONDENT: SWE
BRANCH: ADMISSIBILITY
DATE: 2002
DOCNAME: X v. SWEDEN
IMPORTANCE: 2
CONCLUSION: Inadmissible
JUDGES: Nicolas Bratza
TEXT: The applicant is an Algerian national, who was born in 1974. He was represented before the Court by Ms L. Isaksson, a lawyer practising in Umeå. The respondent Government were represented by Ms I. Kalmerborn, Ministry for Foreign Affairs.
The facts of the case, as submitted by the parties, may be summarised as follows.
The applicant arrived in Sweden at the end of May 2000. Allegedly, he intended to apply for asylum immediately and, as he only speaks his mother tongue, he went to his brother in Stockholm to seek his assistance. The brother was ill and unable to help him, however, so he left for Umeå where, apparently, some friends of his live. He arrived in Umeå on 9 June and allegedly intended to file his asylum application on Tuesday 13 June, after the Whitsun weekend. However, during the weekend, on Monday 12 June, he assaulted a Moroccan national and was arrested and detained by the police. Initially, he presented a false French passport but, eventually, he disclosed his true identity and requested asylum.
On 16 June 2000 the District Court (tingsrätten) of Umeå decided to detain the applicant on suspicion of assault.
By a judgment of 6 July 2000 the District Court convicted the applicant for assault and use of a false document (brukande av falsk urkund) and sentenced him to two months' imprisonment.
Following his release from prison on 22 July 2000 the applicant was taken into custody in accordance with a decision of the National Migration Board (Migrationsverket) of 12 June 2000, as there was a risk that he would otherwise disappear. The applicant was moved to the Board's custody premises at Carlslund.
In his asylum application, the applicant stated that, following the completion of his military service in 1996, he had returned to his home town. After a few months he had been approached by members of the organisation GIA (Groupe Islamique Armé) who had threatened his life and told him that he had to work for the organisation. Between 1996 and 1999 he had regularly transported GIA members in his minibus and also delivered oil and gas to the GIA. On several occasions, GIA members had visited him in his home and threatened to kill him and his family should he not cooperate. Towards the end of 1999 the Algerian police had also been looking for him at his home. He had never sought the help of the police for fear of reprisals from the GIA and the police who, allegedly, would not have believed that he had been forced to help the GIA. Following the visit by the police, the applicant had got scared and left for Algiers where his sister lived. Someone had helped him out of the country; he had travelled to Frankfurt, Germany by plane and from there to Poland by truck. He had stayed in Poland for several months and eventually travelled to Sweden by boat. Allegedly, he had not left Algeria earlier, as he had been unable to make up his mind and had not known where to go. Moreover, had it not been for the threats from the GIA, he would not have left the country. According to his parents in Algeria, the GIA and the police had come to look for him several times after his escape. However, he had never been politically active and had not had any difficulties with the Algerian police or other authorities.
On 9 August 2000 the National Migration Board rejected the asylum application and ordered the applicant's expulsion from Sweden. It also decided that the applicant should remain in custody. The Board noted that the general situation in Algeria was no longer such as to constitute a reason for granting asylum. As regards the applicant's personal situation, the Board did not find the applicant's allegations credible. It noted that he had not applied for asylum until he was arrested by the police, two weeks after his arrival in Sweden, although the alleged reason for his travelling to Sweden was to seek asylum. Even when arrested he first lied about his true identity. The Board therefore considered that the applicant could not have thought that his need for protection was particularly great. The Board also found it peculiar that he had worked for the GIA under threats to his life for as long a period as three years without having tried to escape. Allegedly, as he had a valid Algerian passport and had completed his military service he should have been able to leave Algeria without any difficulties at an earlier date. As an alternative, he could have left for Algiers to live with his sister. For these reasons, the Board concluded that it was not plausible that, upon return to Algeria, the applicant would be subjected to treatment contrary to Article 3 of the Convention.
On 14 September 2000 the Aliens Appeals Board (Utlänningsnämnden), agreeing with the reasons given by the Migration Board, upheld the above decision. It decided also that the applicant should remain in custody. The Appeals Board had at its disposal an “incident report”, dated 12 September, from the Carlslund custody, according to which the applicant had tried to hurt himself in custody. He was given medication and put under constant surveillance.
According to another “incident report” of 14 September 2000 the applicant, on that date, after having been informed of the Appeals Board's decision, had collapsed in violent spasms and had again tried to hurt himself by banging his head against the floor. The responsible physician, Dr Meischner, a specialist in general medicine, concluded that the applicant was panic-stricken. As there was a great risk that the applicant would suffer from another similar attack and as the Carlslund custody did not have the necessary resources, Dr Meischner considered that further custody at Carlslund was inappropriate. As the applicant could not be considered mentally ill, he could not be admitted to a psychiatric ward. Instead, Dr Meischner recommended that the applicant be moved to the detention centre at Kronoberg which had sufficient personnel and medical resources to take care of him. Accordingly, the applicant was moved to that detention centre in the evening of 14 September.
At Kronoberg the applicant was examined, at the request of his lawyer, by Dr Søndergaard, a specialist in psychiatry from the Centre for Torture and Trauma Survivors (Centrum för tortyr- och traumaskadade; “CTD”) in Stockholm. According to the opinion of Dr Søndergaard, issued on 15 September 2000, the applicant feared that the GIA would kill him if he were returned to Algeria. His fear was based on previous threats to him and his family. On account of that fear, he was unable to communicate properly with other people and had reduced bodily functions. Dr Søndergaard concluded that the applicant was, most likely, seriously ill due to a lengthy state of fear, that he had reacted like a person facing execution and that the risk of a suicide attempt was very serious. Thus, he should be taken to a psychiatric ward for further examination.
On 19 September 2000 a new application for asylum, based on the new medical information, was lodged with the Aliens Appeals Board. The same day the Board decided not to suspend the enforcement of the expulsion order.
By a judgment of 20 September 2000 the County Administrative Court (länsrätten) in Stockholm rejected the applicant's appeal against the Aliens Appeals Board's decision not to release him from custody.
On 20 September 2000, following the Court's indication under Rule 39 of the Rules of Court, the National Migration Board stayed the execution of the expulsion order and released the applicant from custody.
On 21 September 2000 the applicant was taken to hospital and was then transferred to a psychiatric ward.
On 26 September 2000 Dr Søndergaard from the CTD again examined the applicant. According to his medical certificate, issued the same day, the applicant was feeling fairly well and safe and was able to give a detailed account of his situation. The applicant showed no signs of depression and did not meet all the criteria for a post-traumatic stress syndrome. According to Dr Søndergaard, the applicant's status at the time of the earlier examination, at Kronoberg, could only be seen as an expression of great fear reasonably based on his previous experiences. The detention at Kronoberg and the threat of expulsion from Sweden had involved a serious risk of a lasting impairment of the applicant's health and also a risk of a suicide attempt.
The new application for asylum is still pending before the Aliens Appeals Board.


ITEMID: 001-114050
LANGUAGEISOCODE: ENG
RESPONDENT: SVN
BRANCH: CHAMBER
DATE: 2012
DOCNAME: CASE OF ŠTEFANČIČ v. SLOVENIA
IMPORTANCE: 4
CONCLUSION: No violation of Article 6 - Right to a fair trial (Article 6-1 - Fair hearing) read in the light of Article 6 - (Art. 6) Right to a fair trial (Article 6-3-d - Witnesses)
JUDGES: André Potocki;Angelika Nußberger;Ann Power-Forde;Dean Spielmann;Karel Jungwiert;Paul Lemmens
TEXT: 5. The applicant was born in 1966 and lives in Škofja Loka.
6. On an unspecified date, the applicant and another individual, M.K., were charged under Article 196, paragraph 2 of the Slovenian Penal Code with the criminal offence of unlawfully manufacturing and trading in narcotics. They were accused of being involved in the organisation of drug trafficking which had been carried out by J.G., who had already been convicted of this in London. Another person, D.M., who had been convicted in Freiburg (Germany), was involved in the trafficking.
7. By letter of 7 January 2000 and during a telephone call on 14 January 2000, the applicant’s lawyer was informed of the investigating judge’s decision to question J.G. as a witness in London, where he was being held in a prison.
8. On 18 January 2000 the investigating judge, accompanied by M.K.’s representative and the public prosecutor, questioned J.G. in London. J.G. had specified that his participation to the meeting was conditional upon the fact that he would not be compelled to answer questions put by the defence; as a consequence, M.K.’s representative was unable to put any questions to him.
9. During questioning, J.G. explained that he had met D.M. in 1990 in Germany. D.M. later contacted him about transporting a car from Slovenia to elsewhere in Europe and mentioned people from Slovenia, including the applicant, who would organise the transport. J.G. and D.M. came together to Slovenia on 12 February 1998 and stayed in the Hotel Medno. They were visited there by the applicant and M.K. On this occasion, J.G. received an envelope from the applicant: he stated that he thought that it contained money for the purchase of a car, but later realised that it was a package of heroin and that he was supposed to smuggle drugs in the future. According to J.G.’s version of events, he came to Slovenia again on 26 February 1998, taking a train from Feldkirch (Austria) to Ljubljana. In Ljubljana he met M.K., who told him about the first drug transfer from Hungary to Germany and gave him a mobile phone with a Slovenian SIM card. Later that day, J.G. met the applicant and M.K. at the Hotel Medno. They told him where in Hungary he had to go, but that plan was never implemented. J.G. subsequently bought a car for a drug transfer from Croatia to Hamburg. His contact with M.K., who, unlike the applicant, could speak English, was made using the mobile phone which had been given to him during his second visit to Slovenia. J.G. met the applicant and M.K. in Munich and Stuttgart, where they told him about a new drug transfer from Croatia to Great Britain. He was again given instructions by M.K. using the mobile phone. J.G. identified both the applicant and M.K. from a series of photographs.
10. The trial court subsequently called: (i) witness D.Š., who testified that he had introduced the applicant to D.M. in the context of a business involving the sale of apartments; (ii) an undercover agent who was involved in another case and whose testimony was consequently held by the trial court to be inadmissible in the proceedings concerning the applicant; and (iii) an anonymous witness, who also confirmed that the applicant and D.M. knew each other because they had both been present at the meeting concerning the sale of certain apartments. The court also admitted as evidence: (i) the statement taken from J.G. on 18 January 2000 in London; (ii) the guest records of the Hotel Medno relating to the dates 13 and 27 February 1998; (iii) the records of phone calls made on the Slovenian SIM card found in possession of J.G. on the date of his arrest; and (iv) the judgment of the Freiburg Regional Court concerning the criminal proceedings against D.M.
11. That judgment had established that D.M. and J.G. knew each other and that they had planned a drug transfer from Slovenia to Central Europe. Moreover, it had been D.M. who had introduced J.G. to the applicant and M.K. The Freiburg Regional Court had further established that on 12 February 1998 D.M. and J.G. had gone to the Hotel Medno in Ljubljana, where they had met the applicant and M.K., that a second visit to Slovenia had taken place on 26 February 1998, that J.G. had received a mobile phone from M.K. which had been used to give him instructions about the drug transfers, that J.G. had delivered drugs in Hamburg and in Great Britain and that he had met the applicant and M.K. twice in Germany.
12. At a hearing on 18 May 2000, the court read out J.G.’s statement of 18 January 2000. While the public prosecutor and M.K.’s representative agreed to this, the applicant’s representative objected and requested that J.G. be examined in court. His request was rejected by the court, referring to section 340 of the Criminal Procedure Act 1994 (hereinafter, “the CP Act” – see paragraph 22 below).
13. At a hearing on 29 May 2000, the applicant requested that his mother, brother and wife be called to give evidence relating to his state of health and his medical appointments during the period in question. The court rejected the request, finding that the applicant’s state of health could be verified on the basis of his medical records.
14. On 31 May 2000 the applicant was convicted and sentenced to nine years’ imprisonment for being part of a criminal enterprise, together with J.G. and D.M., which had drug trafficking from Croatia to Western Europe as its purpose. The court found that the applicant and his co-accused, M.K., together with D.M., had organised and assisted the sale of heroin which had been trafficked by J.G. on two occasions in March 1998. On one occasion, 30 kg of heroin had been trafficked to Hamburg, and on another occasion, 54 kg of heroin had been trafficked to London. The court also found that the applicant had not attended any medical appointments on the dates on which the alleged acts were committed.
15. In its judgment, the court rejected the applicant’s argument that J.G. should have been examined at trial. The court relied on the fact that J.G. had been sentenced to sixteen years in prison and that it could not therefore have been expected that the British authorities would bring him before a Slovenian court in order to testify. It also rejected the applicant’s argument that J.G. was mentally ill, finding that his answers had been clear and coherent and that the issue of his mental state had already been assessed by the Freiburg Regional Court, which had found that his testimony had been fully credible. The court also observed that the defence had been aware that J.G. would not answer questions other than those put to him by the investigating judge or the prosecutor. It further found that M.K.’s representative, who had been present at the examination, had not even attempted to put questions to J.G., nor had she asked the investigating judge to do so on her behalf.
16. In its reasons for convicting the applicant, the court stated that it had followed the description of the relevant events given by J.G. on 18 January 2000, which had been coherent and supported by corroborating evidence. The evidence, including telephone records and train tickets, had supported J.G.’s statement regarding the trips he had taken in order to bring the drugs to Hamburg and London. In particular, the train tickets found on J.G. on the date of his arrest had corresponded to the dates of his alleged meetings with D.M. Moreover, from the date on which he had received the mobile phone from M.K. until the date of his arrest in London, J.G.’s Slovenian SIM card had recorded that calls had been received from different telephone boxes in the area near Škofja Loka, the city where the applicant and M.K. had lived. These phone calls had matched with the dates and locations of the drug transfers which J.G. had allegedly undertaken under the instructions of the applicant and M.K.
17. In addition, the court found that J.G. had picked out the applicant and M.K. from twenty-four photos of different people and “had previously described both of them and stated that he had met them on several occasions”. It further stated:
“On the basis of the above, the court considers it proven that the accused colluded with D.M. and J.G. for the purpose of committing criminal offences. The witnesses confirmed that [the applicant] had met D.M., and that [his co-accused] had also enquired about him. J.G. indicated the time from which he had been D.M.’s friend and from which they had reconnected. Immediately after J.G.’s release from hospital, D.M. contacted him and took advantage of his position. It can also be seen from the Freiburg Regional Court’s judgment that D.M. was in contact with J.G. on a continuous basis. All four of them were together on 12 February and 13 February in the Hotel Medno, where they started planning the trafficking.”
18. The applicant appealed. He alleged that the judgment had been based predominantly on J.G.’s statement, which was of questionable credibility. He submitted that the documents in the case file had shown that J.G. was mentally ill, had been treated in a psychiatric hospital several times, including most recently shortly before his arrest, and that he was easily manipulated. For those reasons, the applicant had requested that the court call J.G. for examination at trial. Referring to Article 6 of the Convention, the applicant alleged that his right to examine a key witness should have had precedence over the logistical difficulties and financial consequences connected with the organisation of the witness’s attendance at the hearing. He also complained about the court’s refusal to call his mother, his brother and the representative of his co-accused as witnesses.
19. On 6 December 2000 the Ljubljana Higher Court dismissed the appeal. It agreed with the lower court as regards the credibility of J.G.’s testimony. In relation to the fact that J.G. had not been examined at the hearing, it found the following:
“The court’s decision to read out the testimony of J.G. was made under section 340, paragraph 1, point 1, on the well-founded basis that J.G. was serving a sixteen-year prison sentence in London. The representative of the accused had been informed of the examination before the British court beforehand but decided not to attend. The other examinations of this witness and the final judgment of the German court, which have been mentioned already, were sufficient to assess the credibility of this witness. Article 6 of the Convention was not violated because the accused were unable to directly examine this witness, contrary to the appellant’s incorrect contention. The proven credibility of this witness was such that the participation of both accused [in J.G.’s questioning] could not have affected [his statement’s] evidential value ... As can be seen from the written grounds of the judgment, the court also relied on J.G.’s statements obtained in the proceedings before the British courts and the final judgment of the German court, which were valid evidence because their lawfulness was not questionable as [a result of the fact that] the judgments were final. Although M.K.’s representative was unable to put any questions to J.G. (in accordance with the conditions set by J.G.), the rights of the defence were not violated as otherwise the witness would have refused to participate. In this connection, the court rightly found that the [applicant’s] representative could have put questions to J.G. through the investigating judge but did not make use of this possibility.”
20. The applicant and M.K. lodged appeals on points of law. On 3 April 2003 the Supreme Court of Slovenia upheld their appeals in part in respect of the legal qualification of the offence and reduced their sentences to eight years’ imprisonment each. It dismissed the remainder of the appeals. It found that the applicant’s representative had been given an opportunity to participate in the examination of J.G. and should have been aware of the possibility that the witness would not be examined again at trial, as stipulated in section 167, paragraph 2 of the CP Act (see paragraph 22 below). It also dismissed the applicant’s argument that he could not have afforded his representative’s travel expenses, finding that no request had been made to cover such expenses from State funds.
21. On 25 July 2003 the applicant lodged a constitutional appeal alleging a violation of his defence rights. On 6 December 2004 the Constitutional Court dismissed the appeal as manifestly ill-founded. It endorsed the reasons given by the Supreme Court.
22. The relevant provisions of the CP Act (Zakon o kazenskem postopku, Official Gazette no. 63/94) read as follows:
“...
(2) ”
“...
(4) The state prosecutor, the accused and his defence counsel may attend the examination of a witness. The injured party may attend the examination of a witness only if the witness is not likely to appear at the main hearing.
...
(6) If a person who has been sent a notice of any intended questioning fails to appear, the questioning may be performed in his absence. ...
(7) The parties and defence counsel present during a questioning session may seek clarification of certain matters by putting questions to the accused, witness or expert. As a rule, the questions shall first be put by the state prosecutor, then by the accused and his counsel and finally by the investigating judge. The investigating judge shall not allow a question or an answer if they are not permitted or are irrelevant to the matter considered. ... Persons present at a questioning session shall have the right to demand that their remarks concerning the asking of individual questions be entered in the record, and may propose that individual pieces of evidence be taken.
...”
“If the parties and defence counsel did not attend certain a questioning session and the investigative judge considers that it would be advantageous for the further course of the procedure if they were acquainted with critical evidence, he shall inform them that this evidence will be available within a specific period and that they may make motions for new evidence to be taken.”
“(1) ... Witnesses and experts proposed by the prosecutor in the indictment and by the accused in his defence to the indictment, except those whose examination at the main hearing is not necessary in the opinion of the presiding judge, shall also be summoned to the main hearing. ...”
“(1) If it transpires in the course of the main hearing that a witness or an expert is unable to appear in court or his appearance would involve great difficulty, and the panel maintains that his testimony is important, the panel may order that he be examined outside the main hearing by the presiding judge, or a judge on the panel, or the investigating judge of the court in whose territory the witness or the expert resides.
...
(3) The parties and the injured person shall always be advised when and where a witness shall be examined, or when and where an inspection or reconstruction of an event shall take place, and shall be instructed that they may attend these events. If the defendant has been remanded in custody, the panel shall determine whether his presence is necessary during these actions. ...”
“(1) In addition to the instances specified in the present Code, the records of the testimonies of witnesses, co-defendants or convicted persons who were involved in the offence, as well as expert reports and expert opinions, may on the basis of a decision of the panel be read out only in the following instances:
(i) if the persons questioned have died, or have been affected by a mental disease, or cannot be found, or are unable to appear in court due to old age, illness or some other weighty reason, or their appearance would involve great difficulty;
(ii) if witnesses or experts refuse to testify at the main hearing without legal justification.
(2) Subject to the consent of the parties, the panel may decide that the record of a previous examination of a witness or an expert, or the written findings and opinion of the expert, be read out in court in the absence of the witness or the expert, whether or not the witness or the expert were summoned to appear at the main hearing.
...
(4) The reasons for the reading out of the record shall be indicated in the record of the main hearing ...”
“After the examination of each witness or expert, as well as after the reading of each record or other written document, the presiding judge shall invite the parties and the injured person to make comments if they so wish.”
23. The Constitutional Court held that the “extreme ill-health” of two witnesses (the alleged victims of a crime) was a “justified and unavoidable derogation” from the principle of direct examination of witnesses. Nevertheless, the accused should have been given the opportunity to question the victims, and in this respect it was enough that he had been invited, during the investigation, to be present at their examination conducted by the investigating judge (decision Up-207/99 of 4 July 2002; see also judgment no. III Kp 11324/2010 of the Ljubljana Higher Court of 9 June 2010). In a decision of 18 October 2007 (Up-849/05), the Constitutional Court considered that it was not possible to refer to a violation of the right to examine the witnesses for the prosecution when the authorities had acted with due diligence in their efforts to ensure that the accused had the benefit of this right (it is worth noting that in this case, according to the Constitutional Court, the statements of the victims were not the sole and key evidence against the accused).
24. In a judgment of 21 May 2009 (no. I Ips 14/2009), the Supreme Court noted that, according to section 340(1) of the CP Act (see paragraph 22 above), the records of statements could be read at trial in the event that the witnesses could not be found. If the accused was provided with an opportunity “to be present at the hearing of this evidence”, the statements in question could be read out even without his consent. Furthermore, there was no violation of the procedural rights of the accused if he and his counsel were summoned to attend the examination of a witness who could not give evidence at trial (see judgment no. I Ips 507/2008 of 9 April 2009, and judgment no. I Ips 190/2006 of 17 May 2007). Conversely, such a violation would occur when, in the absence of any obstacle to such an act, the investigating judge failed to inform the suspect of the examination of a witness whose statements were subsequently read out at trial (see judgment no. I Ips 88/2008 of 16 October 2008).
25. Section 340 of the CP Act indicates the cases in which it is admissible to make an exception to the principle that evidence at the main hearing shall be taken directly before the trial chamber (the “principle of immediacy” – see Supreme Court judgment no. I Ips 330/2006 of 24 April 2008). A party who has explicitly agreed to the reading of a witness’s testimony cannot rely upon the right to cross-examine the witness in question at the trial hearing (see decision no. Kp 115/2000 of the Celje Higher Court of 23 March 2000, and decision no. Kp 28/2008 of the Koper Higher Court of 6 February 2008).
NON_VIOLATED_ARTICLES: 6
NON_VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-83294
LANGUAGEISOCODE: ENG
RESPONDENT: AUT
BRANCH: CHAMBER
DATE: 2007
DOCNAME: CASE OF PFEIFER v. AUSTRIA
IMPORTANCE: 3
CONCLUSION: Violation of Art.8 (failure to protect the applicant's reputation);Non-pecuniary damage - financial award;Costs and expenses (Convention and domestic proceedings) - partial award
JUDGES: Loukis Loucaides
TEXT: 6. The applicant is a freelance journalist who lives in Vienna. From 1992 to 1995 he was the editor of the official magazine of the Vienna Jewish community.
7. In the beginning of 1995 the Academy of the Austrian Freedom Party (Freiheitliche Partei Österreichs) published an article in its yearbook, written by P., a professor of political sciences at Münster University. The article was entitled “Internationalism against nationalism: an eternal mortal enmity?” and alleged that the Jews had declared war on Germany in 1933. Moreover, it trivialised the crimes of the Nazi regime.
8. In February 1995 the applicant published a commentary on this article in the magazine of the Vienna Jewish community. It was entitled “Freedom Party's 1995 yearbook with (neo-)Nazi tones”. He criticised P. in harsh terms for using Nazi terminology and disseminating ideas which were typical of the “Third Reich”. More specifically, he accused P. of reviving the old Nazi lie of a worldwide Jewish conspiracy and of confounding the roles of perpetrators and victims.
9. Subsequently, P. brought defamation proceedings under Article 111 of the Criminal Code (Strafgesetzbuch) against the applicant. The Vienna Regional Criminal Court (Landesgericht für Strafsachen) acquitted the applicant. Its judgment was upheld on 4 May 1998 by the Vienna Court of Appeal (Oberlandesgericht), which found that the applicant's criticism constituted a value judgment which had a sufficient factual basis in the numerous quotations from P.'s article. Having regard to the publication of P.'s article in the yearbook of a political party and given the highly sensitive topic, the applicant's criticism, though harsh, was not excessive.
10. Two years later, in April 2000, the Vienna Public Prosecutor's Office brought proceedings against P. on charges under the National Socialism Prohibition Act (“the Prohibition Act” – Verbotsgesetz). Relying on numerous quotations from P.'s article in the Freedom Party's 1995 yearbook, the public prosecutor argued that the article constituted a national-socialist activity within the meaning of section 3g of the Prohibition Act. Shortly before the date scheduled for the trial, P. committed suicide.
11. On 8 June 2000 the weekly Zur Zeit, a right-wing magazine whose chief editor M. was the former Chairperson of the Freedom Party's Academy, published a two-and-a-half-page article with the headline “The deadly terror of virtue” (“Tödlicher Tugendterror”). It referred to the applicant's criticism of P.'s article in 1995 and alleged that the applicant's comment had unleashed a manhunt which had eventually resulted in the death of the victim. It referred to the applicant and a number of other persons, mostly politicians of the Austrian Socialist Party or the Green Party and also a number of journalists, a historian and a professor of political sciences, as members of a “hunting society” which used the Prohibition Act as a tool to attack persons close to the Freedom Party and had ultimately chased one victim to his death. The article was accompanied by pictures of the members of the alleged “hunting society”, including a picture of the applicant.
12. The applicant brought defamation proceedings under Section 6 of the Media Act (Mediengesetz) against the publishing company owning Zur Zeit.
13. On 20 March 2001 the Vienna Regional Criminal Court found that the article fulfilled the elements of defamation and ordered the defendant company to pay the applicant compensation under section 6 of the Media Act. In addition the defendant was ordered to publish the judgment.
14. The Regional Court noted that the impugned article accused the applicant of being morally responsible for P.'s death. Certain facts were undisputed, namely that the applicant had written a critical commentary on P.'s article, that P. had been charged under the Prohibition Act and that he had died before the opening of the trial. However, the allegation that the applicant was part of a “hunting society”, that is, a group of persons persecuting P. and eventually causing his death, amounted to a statement of fact, the truth of which had not been established. In particular, the defendant company had not offered any proof for the causal link between the applicant's article and P.'s death. Even if the statement were to be treated as a value judgment, it was excessive as it presented a conclusion which went far beyond what could reasonably be based on the underlying facts. Thus, it transgressed the limits of criticism permitted by Article 10 of the Convention.
15. On 15 October 2001 the Vienna Court of Appeal set the judgment aside on an appeal by the defendant.
16. It found that the impugned article contained a value judgment which was, however, not excessive. The use of the term “hunting society” did not imply coordinated activities of a group of persons with the aim of destroying P.'s existence. Thus, the article could be understood as implying that the applicant's and other persons' activities had eventually caused P.'s death but it did not contain an accusation of their having foreseen or planned this outcome. The factual basis was sufficient to attribute some moral responsibility for P.'s death to the applicant and a number of other persons who had been active either by criticising P. in the media or by bringing actions against him in the courts. As regards the applicant, the article referred to his critical commentary on P.'s publication, thereby enabling the reader to assess whether or not he shared the opinion expressed in the impugned article. Moreover, the reader was aware that the article was written from a political and ideological point of view and involved a certain degree of exaggeration. In sum, it remained within the limits of permissible criticism set by Article 10 of the Convention.
17. Meanwhile, in February 2001 M. addressed a three-page letter to the subscribers to Zur Zeit asking them for financial support. As a reason for this request readers were told that the weekly Zur Zeit was under massive pressure from anti-fascists who, after having campaigned against Kurt Waldheim, Jörg Haider and other “undesirables”, had now chosen Zur Zeit as their target. It alleged that the above-mentioned group was trying to damage Zur Zeit by means of disinformation in the media and by instituting a multitude of criminal proceedings and civil actions.
The relevant passage of this letter reads as follows:
“Then there is the case of Karl Pfeifer v. Zur Zeit. The long-standing editor of the Jewish religious community's magazine, Karl Pfeifer, was identified following Professor P.'s [family name in full] death as a member of the hunting society that drove the conservative political scientist to his death. It was common knowledge that court proceedings were due to be opened against P. under the Nazi Prohibition Act on account of his statements in the Freedom Party's 1995 yearbook. The Jewish journalist Karl Pfeifer had condemned the statements for their Nazi tone and as a result had unleashed the judicial avalanche against P. When Zur Zeit dared to show that this was the cause of the suicide, Pfeifer lodged a complaint. The extremely complex, time-consuming and costly proceedings, naturally accompanied by a corresponding media campaign in the trendy left-wing rags, are still in progress.”
18. On 15 March 2001 the applicant brought a further set of defamation proceedings under Article 111 of the Criminal Code against M. and under section 6 of the Media Act against the publishing company owning Zur Zeit.
19. On 4 September 2001 the Vienna Regional Criminal Court decided to adjourn the proceedings pending the Vienna Court of Appeal's judgment in the first set of defamation proceedings. Once the latter had given its judgment of 15 October 2001 (see paragraphs 15 and 16 above), the Regional Court resumed the proceedings.
20. On 31 January 2002 the Regional Court acquitted the defendants. It noted that the two sets of defamation proceedings related to very similar factual and legal issues. Again, as in the article “The deadly terror of virtue”, the applicant was referred to as a member of a “hunting society” which had driven P. to commit suicide. Thus, it was alleged that there was a causal link between the applicant's criticism of P.'s article and the latter's death. The considerations which had led the Court of Appeal to acquit the defendants in the first set of proceedings also applied in the present case. The Regional Court followed the appellate court's view expressed in the judgment of 15 October 2001 and found that the impugned letter contained a value judgment which relied on a sufficient factual basis. In this connection, it noted that addressees of the letter, even if they had not read the article “The deadly terror of virtue”, were given a summary of its contents which enabled them to form an opinion about the pertinence of the allegation raised. The value judgment was not excessive, although the underlying facts were commented on from a strongly ideological point of view. It followed that the publication at issue was protected by Article 10 of the Convention.
21. On 1 August 2002 the Vienna Court of Appeal dismissed an appeal by the applicant, upholding the Regional Court's assessment that the two sets of proceedings were so closely linked that the principles and considerations set out in its previous judgment of 15 October 2001 applied.
22. The judgment was served on the applicant's counsel on 7 October 2002.
23. Article 111 of the Criminal Code (Strafgesetzbuch), reads as follows:
“1. Anybody who, in such a way that it may be noticed by a third person, attributes to another a contemptible characteristic or sentiment or accuses him of behaviour contrary to honour or morality and such as to make him contemptible or otherwise lower him in public esteem shall be liable to imprisonment not exceeding six months or a fine ...
2. Anyone who commits this offence in a printed document, by broadcasting or otherwise in such a way as to make the defamation accessible to a broad section of the public, shall be liable to imprisonment not exceeding one year or a fine...
3. The person making the statement shall not be punished if it is proved to be true. In the case of the offence defined in paragraph 1 he shall also not be liable if circumstances are established which gave him sufficient reason to believe that the statement was true.”
24. Section 6 of the Media Act provides for the strict liability of the publisher in cases of defamation; the victim can thus claim damages from him. In this context “defamation” has to be read as defined in Article 111 of the Criminal Code.


ITEMID: 001-5981
LANGUAGEISOCODE: ENG
RESPONDENT: DEU
BRANCH: ADMISSIBILITY
DATE: 2000
DOCNAME: NOACK AND OTHERS v. GERMANY
IMPORTANCE: 1
CONCLUSION: Inadmissible
TEXT: There are fifteen applicants.
The first thirteen, who live in the village of Horno in the Land of Brandenburg, are Mr Noack, Mr and Mrs Siegert, Mr and Mrs Hornig, Mr Hugler, Mr Kneschk, Mr Lindner, Mr and Mrs Naparty, Mrs Nitschke, Mr Richter and Mr Willnow.
The fourteenth applicant is the Domowina, an association for the protection of Sorbian interests, and the fifteenth, the Horno Protestant community.
The applicants are represented before the Court by Ms U. Philipp-Gerlach, of the Frankfurt Bar, and Mr R. Giebenrath, of the Freiburg (im Breisgau) Bar.
The facts of the case, as submitted by the parties, may be summarised as follows.
The case concerns the transfer – scheduled to take place at the end of 2002 – of the inhabitants of Horno, a village in the Land of Brandenburg fifteen kilometres north of the town of Cottbus, near the Polish border. Horno has a population of 350, approximately a third of whom are from the Sorbian minority, of Slav origin. The first twelve applicants say that they are members of the Sorbian minority. Approximately 20,000 Sorbs (Sorben) live in the Land of Brandenburg. They have their own language and culture. They have their own customs (sorbisches Brauchtum), which are kept alive by groups performing Sorbian songs or wearing traditional costumes and by drama societies, literary circles and drawing classes. The majority of Sorbs are Protestants.
The inhabitants of Horno are to be transferred to a town some twenty kilometres away because of an expansion of lignite-mining operations (Braunkohleabbau) in the area, as the Jänschwalde open-cast lignite mine (Braunkohletagebau) is just a few kilometres from Horno. The mining rights (Nutzungsberechtigung) belong to the LAUBAG company (Lausitzer Braunkohle Aktiengessellschaft).
In 1977 the Government of the German Democratic Republic (GDR) decided that the population of Horno would have to be transferred to make a larger area available for lignite mining, a decision opposed by the inhabitants even then.
In the early 1990s the inhabitants of Horno took part in demonstrations and signed petitions calling for an end to lignite mining in the municipality.
On 14 March 1994 the Mining Board (Oberbergamt) of the Land of Brandenburg approved an Outline Project for Continued Open-Cast Mining at Jänschwalde 1994 until Exhaustion of the Deposits (Rahmenbetriebsplan zur Weiterführung des Tagebaus Jänschwalde 1994 bis Auslauf ). Under the project, lignite mining in the area was to continue and as a result the inhabitants of Horno were to be transferred in 2003.
By a decision of 6 June 1994, the Mining Board dismissed an application (Widerspruch) by 161 landowners to have the project shelved. A large majority of these landowners, including the third, seventh, tenth, eleventh and thirteenth applicants, were from Horno.
At the beginning of July 1994 various municipal councils and the third, seventh, tenth, eleventh and thirteenth applicants lodged an application for judicial review of that decision with the Cottbus Administrative Court (Verwaltungsgericht).
Those proceedings were still pending when the application to the Court was made.
On 17 December 1998 the Cottbus Administrative Court held a public hearing and delivered a judgment dismissing the application. In finding against the applicants, it relied in particular on settled authority that had established that a mere decision to approve a project for mining operations did not as a matter of principle (grundsätzlich) infringe the rights of the owners of the land affected by the works, since the decision in question did not at that stage concern the absorption of the individual plots of land. The Administrative Court added that there was nothing to prevent the landowners challenging the legality of the mining operations in the separate procedure, known as the mining-law land-transfer procedure (bergrechtliches Grundabtretungsverfahren), that would follow.
On 23 April 1997, at a public hearing, the Parliamentary Commission for the Environment, Nature Conservation and Regional Development of the Land of Brandenburg heard submissions from the representatives of associations, interest groups, research institutes and legal experts on the Lignite Bill.
The Land of Brandenburg’s Basic Law on Lignite (Braunkohlegrundlagengesetz) came into force on 12 July 1997. Section 1 of the statute concerns lignite extraction (Förderung der Braunkohle) and section 2, the dissolution of the Horno Municipal Council and the incorporation of its territory into the Municipality of Jänschwalde (Auflösung der Gemeinde Horno und Eingliederung ihres Gemeindegebietes in die Gemeinde Jänschwalde – see Relevant Domestic Law below).
On 5 September 1997 several members of the Brandenburg Parliament lodged an appeal with the Constitutional Court of the Land of Brandenburg (Verfassungsgericht des Landes Brandenburg) seeking a review of the constitutionality of the Basic Law (Normenkontrollantrag).
The first and fourteenth applicants also lodged a constitutional appeal (Verfassungsbeschwerde) with that court.
After hearings on 19 March and 18 June 1998, the Constitutional Court of the Land of Brandenburg held that the provisions of the Basic Law on Lignite allowing lignite mining in the municipality of Horno were consistent with the Land’s Constitution.
It held that the rights granted to the Sorbs by the first sentence of Article 25 § 1 of the Land’s Constitution regarding the protection of the area where they had originally settled did not afford them absolute protection against the absorption (InanspruchnahmeLand’s Constitution and struck a reasonable balance between the right it enshrined and other fundamental rights and that the result was not disproportionate. For the purposes of assessing the future evolution of the economic position, the legislature had been entitled to rely on reports by experts, provided their forecasts were plausible and reasonable.
The Constitutional Court found that the legislature’s decision to dissolve Horno Municipal Council and to use the land for open-cast lignite mining remained compatible with the first sentence of Article 25 § 1, regard being had to the measures that had accompanied that decision (Begleitregelungen) and to the fact that the legislature had weighed the State’s objectives of protecting, conserving and maintaining the area where the Sorbs had originally settled against its objectives of structural development (Strukturförderung), job preservation (Arbeitssicherung) and securing energy supplies (Energieversorgung).
In decisions of 16 July 1998 the Constitutional Court of the Land of Brandenburg also dismissed the applicants’ appeals. It noted that section 3 of the Basic Law on Lignite supplemented the Land of Brandenburg’s Law on Expropriation (Enteignungsgesetz des Landes Brandenburg) by adding special provisions for the lignite-mining areas and authorised expropriations for the purposes of resettlement (Wiederansiedlung) of the population. It further noted that, in the case of Horno, arrangements had been made for resettlement in the neighbouring villages. It added that Mr Noack, in his capacity as a citizen of Horno, did not appear to be entitled at that juncture to complain of an infringement of his right to peaceful enjoyment of his property. It referred also to its judgment of 18 June 1998 regarding the conformity of the Basic Law on Lignite with the Constitution of the Land.
The second, fourth, fifth, sixth, eighth, ninth, twelfth, and fifteenth applicants did not exercise any remedies before the German courts.
The Land of Brandenburg’s Basic Law on Lignite laid down that the inhabitants of Horno had to be consulted regarding their preferred destination. They were given a choice between four villages, all of which were situated in the area where the Sorbs had originally settled.
On 6 September 1998 86,6 % of the population of Horno voted on that issue. The majority (71,5 % – 198 inhabitants) chose the town of Forst (Lausitz), which is approximately twenty kilometres from Horno.
By a decree (Verordnung) of the Government of the Land of Brandenburg dated 8 September 1998, the Jänschwalde Open-Cast Lignite Mining Project (Braunkohleplan Tagebau Jänschwalde) acquired binding force and was published in the Land’s Official Gazette (Gesetz- und Verordnungsblatt).
In the course of 1998 LAUBAG began to submit offers to landowners living in Horno for the purchase (Erwerb) or the transfer for mining purposes (Überlassung für bergbauliche Zwecke) of their land.
At a meeting of the Lignite Board (Braunkohleausschuss) on 25 February 1999, LAUBAG offered to allocate the landowners equivalent land in the resettlement village and to bear all the transfer and resettlement costs.
On 14 June 1999 LAUBAG requested the Brandenburg Mining Board to declare that the Horno District Authority was required to license certain land to it for a twenty-five-year term. The proceedings against some of the applicants are still pending.
By a decree of 27 August 1999, published on 23 September 1999 in the Land’s Official Gazette, the Government of the Land of Brandenburg approved the part of the project dealing with the transfer of the inhabitants of Horno. The practical arrangements for the transfer were set out in that part of the project and included the following provisions: the cost of transferring the population would be borne by LAUBAG; village community life was to continue during the transfer; every effort was to be made to assist the Horno villagers’ integration into the town of Forst; measures to protect and develop the Sorbian culture and language were to be encouraged; and the transfer was to be completed by 2002.
On 30 December 1999 the Senftenberg Mining Board approved the Principal Mining Project (Hauptbetriebsplan) for Jänschwalde 2000/2001.
On 4 February 2000 the applicants challenged that decision.
By decisions of 21 January and 21 February 2000, the Mining Board of the Land of Brandenburg transferred property rights in certain plots of land belonging to inhabitants of Horno to LAUBAG.
The landowners concerned lodged applications for judicial review of those decisions with the Cottbus Administrative Court.
Article 25 of the Constitution of the Land of Brandenburg, which protects the rights of the Sorbian minority, provides:
“1. The Sorbian people are entitled to the protection, preservation and perpetuation of their national identity and of the area in which they originally settled. The Land, municipalities and associations of municipalities shall help to give effect to those rights and in particular to secure the cultural autonomy of the Sorbian people and their effective participation in politics.
2. The Land shall ensure that the Sorbs are able to achieve cultural autonomy transcending the borders of the Land.
3. The Sorbs have a right to the preservation and development of the Sorbian language and culture in public life and to their use in schools and day nurseries.
4. In areas where the Sorbs have settled, administrative documents shall also be drafted in the Sorbian language. The colours of the Sorbian flag shall be blue, red and white.
5. The means by which the Sorbs will be able to exercise their rights shall be laid down by a statute that will guarantee the participation of Sorbian representatives in matters, and in particular legislative debate, concerning the Sorbs.”
The Land of Brandenburg’s Basic Law on Lignite (Braunkohlegrundlagengesetz) entered into force on 12 July 1997. The relevant sections of the Law provide:
(1) Lignite extraction
Lignite in the Lausitz-Spreewald area may be extracted, in accordance with the law, to secure supplies of raw materials and energy and to strengthen the economy of the Land, provided that usable deposits are conserved, that the natural foundations of life are protected and that considerate use is made of the land.
(2) Displacement of local populations as a result of mining works
Where the requisition of inhabited areas is unavoidable, it must be preceded by an offer of equivalent compensation. Every effort must be made to preserve village communities and social ties by moving the populations concerned together. The transfer shall be effected at the cost of the mining company.
(3) Settlement areas for Sorbs
In populated areas for which it is attested that there has been to date an unbroken tradition of Sorbian language and culture, populations displaced as a result of mining works shall be offered appropriate resettlement sites within the original Sorbian settlement area, as defined by section 3(2) of the Law on the Sorbs.”
(1) Territorial division
Horno Municipal Council (district of Spree-Neiße) shall be dissolved on the date of the next municipal-council elections in the Land. Thereafter, its territory shall be incorporated within the territory of the municipality of Jänschwalde (district of Spree-Neiße).
(2) Legal succession
1. Jänschwalde Municipal Council shall succeed to the rights and obligations of Horno Municipal Council from the date the territory of the municipality of Horno is incorporated into its territory.
…
(4) Institution of a Municipal District (Ortsteilbildung) and a Municipal Law (Ortsrecht) in the Absorbed Territory
1. From the date of its absorption into the municipality of Jänschwalde, the territory of the municipality of Horno (the absorbed territory) shall enjoy special status as a district of the municipality of Jänschwalde...
(5) Resettlement
1. In order to preserve the village community and social ties, the inhabitants of Horno should be offered suitable sites for rehousing in Jänschwalde... Before the project for working the deposits is drawn up, the Lignite Commission shall hear representations from the citizens of Horno regarding their resettlement in the municipality of Jänschwalde, the municipality of Turnow or the towns of Peitz or Forst (Lausitz).
…
(6) Institution of a municipal district in the resettlement area
1. The area allocated in accordance with section 5 subsections 1 or 2 for the resettlement of the inhabitants of Horno shall be vested with special status as an administrative district within the host municipality if at least one-third of the inhabitants of Horno are registered as having their main residence there.
…”
Section 3 of the Basic Law supplements the Law on Expropriation of the Land of Brandenburg (Brandenburgisches Enteignungsgesetz) with special provisions for areas of lignite extraction.
“The Framework Convention contains no definition of the notion of national minorities. It is therefore up to the individual Contracting Parties to determine the groups to which it shall apply after ratification. National Minorities in the Federal Republic of Germany are the Danes of German citizenship and the members of the Sorbian people with German citizenship...”


ITEMID: 001-4739
LANGUAGEISOCODE: ENG
RESPONDENT: DEU
BRANCH: ADMISSIBILITY
DATE: 1999
DOCNAME: BASIKA-NKINSA v. GERMANY
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Christos Rozakis
TEXT: The applicant is a Angolan national, born in 1968. He lives currently in Sundern (Germany).
He is represented before the Court by MM. Albert Sommerfeld, Manfred Strahl and Mrs. Barbara Weiser, lawyers practising in Soest (Germany).
On 15 April 1993 the applicant arrived in Germany. On 22 April 1993 he applied for political asylum. In support of his request he submitted that he had lived in Cabinda, an enclave separated from the rest of Angola by a strip of territory of the Democratic Republic of Congo, where he had engaged in activities in favour of the organisation Frente de Libertação do Enclave de Cabinda, the Front for the Liberation of the Enclave of Cabinda (FLEC). He was charged with propaganda and mobilisation and with the co-ordination between the population and the various offices of the FLEC. During the presidential elections in September 1992 he organised a demonstration in Ngoyo persuading people not to participate at the elections. He was arrested and taken into detention in Tshowa where he was held for six months, during which time he was, he contended, beaten and tortured. On 31 March 1993 he managed to escape through the assistance of his uncle. On 4 April 1993 he arrived in Luanda. On 7 April 1993 he took a plane to Lisbon and subsequently arrived in Germany. He asserted that he could not return to his country without risking his life.
On 23 September 1993 the Federal Office for Refugees (Bundesamt für die Anerkennung ausländischer Flüchtlinge) dismissed the applicant’s request and invited him to leave the German territory within one month. The Federal Office did not consider that the evidence he adduced in support of fear of persecution to be reliable and doubted the credibility of his asylum claim.
On 2 February 1994 the applicant filed an action against the refusal of asylum and his envisaged expulsion with the Arnsberg Administrative Court (Verwaltungsgericht). He claimed that if returned to Angola he had a well-founded fear of persecution, not only because of his political engagement in Angola, but also because of his political activities in Germany where he collaborated closely with the organisation of the FLEC and the Forças Armadas de Cabinda, the Cabindan Armed Forces (FAC). In the proceedings before the Administrative Court he was represented by counsel.
On 5 June 1997 the Arnsberg Administrative Court dismissed the action. The court pointed out that information provided in particular by the German Ministry of Foreign Affairs on 7 February 1997 and Amnesty International on 8 April 1997 could not confirm the applicant’s submissions that a demonstration had taken place in Ngoyo in September 1993 and that he had been detained in prison in Tshowa. The court further observed that the situation complained of was limited to Cabinda, but members of the FLEC were present in Cabinda and could move freely. There was no indication that Angolan citizens who had requested political asylum abroad were subjected to political persecution upon their return to Angola. According to information of the German Ministry of Foreign Affairs, the known political activities of Angolan citizens abroad, in particular in Germany, would be unlikely to attract the interest of Angolan authorities unless they were to include acts of violence against Angola. The applicant had assured that he had not taken part in any military action against the Angolan army. There was therefore no reasonable likelihood that the applicant would be persecuted if he were to return to Angola.
On 9 June 1998 the Administrative Court of Appeal (Oberverwaltungsgericht) of the Land of North Rhine-Westphalia rejected the applicant’s request for leave to appeal (Antrag auf Zulassung der Berufung) on the ground that the applicant’s submissions were not sufficiently substantiated.
On 1 July 1998 the applicant renewed his request to be granted asylum (Asylfolgeantrag). He referred to his previous statements and added that on 21 February 1998 he had been elected president and co-ordinator of the German fraction of the FLEC- FAC which had 51 members. According to him, it must be assumed that members of the Angolan embassy knew of his political engagement and that, in the event of his return to Angola, he would be persecuted. Further, according to a report of Amnesty International of April 1998, the situation in Cabinda had deteriorated. Unarmed civilians were deliberately tortured or killed during army raids by Angolan troops on their villages following FLEC attacks in the vicinity. There was no investigation into the reports of beating and other abuses or to prosecute those responsible.
On 9 July 1998 the Federal Office for Refugees refused to conduct new asylum proceedings. It took the view that the applicant’s submissions gave no ground for a more favourable decision. There was no indication that the applicant would be exposed to political persecution for his political activities in Germany.
On 20 July 1998 the applicant filed an action with the Arnsberg Administrative Court claiming to be to granted political asylum.
On 29 July 1998 the applicant applied for an interim injunction (einstweilige Anordnung) requesting to stay his expulsion pending the administrative court proceedings.
On 11 August 1998 the Arnsberg Administrative Court dismissed this request. The court observed that pursuant to the relevant legal provisions, a further set of asylum proceedings was only admissible if there were reasons to reopen the proceedings and the refugee had been prevented, through no fault of his own, from submitting these reasons in the first set of proceedings. Moreover, the change of circumstances had to be presented in a conclusive manner. In the applicant's case, his new submissions did not constitute relevant circumstances for a more favourable decision. It further confirmed the view that, in any event, the applicant’s purely political activities in Germany were not likely to attract the interest of the Angolan authorities and that there were no solid reasons to believe that on his return to Angola he might suffer political persecution.
The applicant filed a constitutional complaint against this decision.
On 25 September 1998 a panel of three judges of the Federal Constitutional Court (Bundesverfassungsgericht) declined to accept the applicant’s constitutional complaint for adjudication.
In summer 1998 the applicant had requested to be transferred to the United States of America. Pending this request the German authorities granted the applicant a provisional residence permit (Duldung). On 29 July 1999 the applicant was informed that his referral request had been dismissed and that the expulsion order would be implemented as soon as a travel document would be available.


ITEMID: 001-67980
LANGUAGEISOCODE: ENG
RESPONDENT: BGR
BRANCH: CHAMBER
DATE: 2005
DOCNAME: CASE OF E.M.K. v. BULGARIA
IMPORTANCE: 3
CONCLUSION: Violation of Art. 5-3 with regard to failure to bring promptly before a judge;Violation of Art. 5-3 with regard to the length of detention on remand;Violation of Art. 5-4;Violation of Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award
JUDGES: Christos Rozakis
TEXT: 9. The applicant was born in 1973 and lives in Sofia.
10. During the period September 1995 – May 1996 the applicant was a university student in finance in the town of Svishtov, at the Danube river. He was also the manager of a sportshoes shop in the town of Novi Pazar, in northeastern Bulgaria (situated at approximately 415 kilometres from Sofia), owned by his girlfriend.
11. On 12 April 1995 Mr E.S.A., a Greek citizen living in Germany, drove through Bulgaria in a jeep with a trailer to transfer a corpse from Germany to Greece. At about 11.00 p.m. he stopped on the ringroad of Sofia. A car stopped in front of the jeep, three men came out of it and approached the vehicle. One of them tried to hit Mr E.S.A. with a hammer through the jeep's window. Another got into the jeep and attacked him with a knife. Mr E.S.A. managed to knock off the knife, but in the meantime the man with the hammer hit him in the face. Then the three men threw Mr E.S.A. out of the vehicle, kicked him several times while he was lying on the ground, and drove away with the jeep.
12. At about 10.30 p.m. on 9 March 1996 Ms M.V. stopped her car in front of the house of a friend of her mother's and stepped out to wipe the ice from the windscreen. A man wearing a wool hat approached her, threatened her, sat in the driver's seat of her car and drove away.
13. An investigation into the first incident was opened on 13 April 1995. Mr E.S.A. was presented with photographs of several persons, including the applicant, and later was questioned. He identified the applicant as one of the assailants and described the assailant as having a dark complexion and short brown hair. Apparently the identification procedure was tainted as the investigator did not, as provided by the Code of Criminal Procedure (“the CCP”), question Mr E.S.A. about the distinctive features of the person to be identified prior to presenting him with the photographs. It also seems that the record was not signed by one of the certifying witnesses, as required by the CCP.
14. Following the identification, the investigator drew up a ruling to summon the applicant. On 11 and 12 July 1995 a process server visited the applicant's home to deliver the summons but was informed by a neighbour that the applicant was absent.
15. On 23 August 1995 the investigator charged the applicant in absentia with aggravated robbery and ordered his detention.
16. On 5 September 1995 a prosecutor of the Sofia City Prosecutor's Office confirmed the investigator's order for the applicant's detention.
17. On 22 September 1995 the applicant was listed in a police posting as a wanted criminal suspect.
18. On 5 October 1995 several police officers went to the home of the applicant to arrest him. They informed his parents that he was wanted. The applicant's mother told the officers that she had spoken with the applicant the previous day and that he was in Svishtov taking his university examinations.
19. The next day, 6 October 1995, the applicant's mother went to the Investigation Service and, being a practising lawyer, requested permission to represent the applicant together with another lawyer. She requested the investigator to allow her to get acquainted with the charges and informed him that the applicant would appear for questioning in a week's time. The investigator refused to acquaint her with the charges.
20. The applicant refused to appear for questioning. According to him, this was due to his believing that the accusation was “false and absurd” and to his fear of being illtreated in custody.
21. On 10 October 1995 the police issued a nationwide search warrant for the applicant. According to the applicant, in practice no steps were undertaken in that respect and he was not hiding, but staying in hotels in Svishtov and taking his examinations.
22. On 17 October 1995 a prosecutor from the Sofia City Prosecution Office ordered the investigator to allow the applicant's mother to participate in the proceedings.
23. On 23 October 1995 the applicant's lawyers requested the examination of several witnesses who, it was asserted, could establish his alibi. They argued that at the time of the alleged offence the applicant had been in Novi Pazar in connection with the investigation of the robbery of the shop he was managing there. On unspecified dates later in the autumn of 1995 five witnesses testified that the applicant had been in Novi Pazar prior to and at the time of the attack on Mr E.S.A. in Sofia.
24. On 26 October 1995 the investigator proposed that the investigation be stayed on the ground that the applicant was missing and sent the case file to the Sofia City Prosecutor's Office.
25. On 8 November 1995 a prosecutor from that office refused to stay the investigation and ordered the carrying out of further investigative steps. She found, inter alia, that the photographs pursuant to which the applicant had been identified and the report from the examination of the crime scene were missing from the case file and that Mr E.S.A. had not been properly questioned.
26. In the beginning of December 1995 the applicant's lawyers requested that the order for his detention be rescinded. They relied on the fact that the identification procedure with the participation of Mr E.S.A. was flawed and on the testimony that the applicant had been in Novi Pazar at the time of Mr E.S.A.'s robbing.
27. The Sofia City Prosecutor's Office rejected the request by an order of 15 December 1995, reasoning that the proceedings were at a too early stage, that the applicant had been charged with a serious intentional offence and that there was no indication that he would not abscond, obstruct the investigation or commit another offence. In particular, the applicant was in hiding.
28. On the same date the investigator again proposed that the proceedings be stayed on the ground that neither the applicant, nor Mr E.S.A. could be located.
29. On 20 December 1995 the applicant's lawyers unsuccessfully requested from the Sofia City Prosecutor's Office to replace the investigator.
30. On 8 January 1996 the Sofia City Prosecutor's Office stayed the proceedings because Mr E.S.A. had to be summoned from Germany, where he was living, for questioning.
31. On 22 January 1996 the applicant's lawyers requested from the Chief Prosecutor's Office to rescind the order for the applicant's detention. The Chief Prosecutor's Office refused. It reasoned that there was no indication that if not in custody, the applicant would not abscond, obstruct the investigation or commit another offence. In particular, he was in hiding.
32. On 29 January 1996 the proceedings were resumed because Mr E.S.A. had arrived in Bulgaria and could be questioned. During questioning he stated that the person who had assaulted him with a hammer had been a man of medium height, aged between thirty and thirtyfive years, with short hair and brown eyes. In contrast to his earlier statement, he testified that the attacker had been lightskinned.
33. On 30 January 1996 Mr E.S.A. was questioned again and said that during the 13 April 1995 identification he had been presented with five or six pictures, not nine as had been stated in the record.
34. On 28 February 1996 the applicant's lawyers again requested from the Chief Prosecutor's Office to rescind the order for the applicant's detention. They argued that the evidence thus far adduced convincingly demonstrated that the applicant was not Mr E.S.A.'s attacker. The Chief Prosecutor's Office replied that it could not rule on the request.
35. A renewed request dated 4 March 1996 remained unanswered.
36. On 29 March 1996 the investigator proposed that the proceedings be stayed because the applicant was missing.
37. By an order of 8 April 1996 the Sofia City Prosecutor's Office refused to stay the proceedings and sent the case back to the investigator, reasoning that its earlier instructions for additional investigative steps had not been complied with and that key pieces of evidence had not been gathered. It also noted that no effective actions had been undertaken to locate and apprehend the applicant.
38. In the meantime, on or about 10 March 1996, an investigation relating to the robbery of Ms M.V.'s car (see paragraph 12 above) was opened by the Sofia District Prosecutor's Office.
39. On 9 April 1996 the picture of the applicant appeared in the daily newspapers. When Ms M.V. saw the pictures, she went to the police and stated that it was the applicant who had robbed her car.
40. On 8 May 1996 the applicant, after consulting with his lawyers, turned himself in. He was then formally presented with the charges against him.
41. On 16 May 1996 Ms M.V. was questioned. She described the offender as a twentyfive year old man with a large mouth and big eyes.
42. On 17 May 1996 the applicant was charged with robbing Ms M.V.'s car.
43. On 11 June 1996 the investigator in the proceedings relating to Mr E.S.A.'s robbery recommended that the charges against the applicant be dropped, as it appeared that he was not the offender. By an order of 21 June 1996 the Sofia City Prosecutor's Office refused and returned the case for further investigation.
44. On 18 June 1996 the Sofia City Prosecutor's Office, which was supervising the proceedings relating to Mr E.S.A.'s robbery, took charge of the investigation relating to Ms M.V.'s robbery as well. It ordered an additional questioning of Ms M.V. with a view to establishing, inter alia, on what basis she was able to identify the applicant and whether she was categorical about that.
45. On 24 July 1996 the two investigations were merged.
46. On 19 November 1996 the investigator proposed that the applicant be committed for trial for the alleged robbery of Ms M.V.'s car but that the charges in respect of the robbery of Mr E.S.A. be dropped.
47. On 4 January 1997 the Sofia City Prosecutor's Office refused to drop the charges, ordered additional investigative actions, and decided that the applicant was to be indicted for both offences.
48. On 23 January 1997 the investigator presented the applicant with the amended charges, proposed that he be committed for trial and transmitted the case file to the Sofia City Prosecutor's Office.
49. On 5 March 1997 the Sofia City Prosecutor's Office submitted to the Sofia City Court a twocount indictment against the applicant.
50. On 10 March 1997 the reporting judge set the case down for hearing on 35 February 1998 and ordered that Mr E.S.A. be summoned from Germany, where he resided, by letter rogatory.
51. The summons was served on Mr E.S.A. not later than 28 August 1997.
52. The first hearing was held on 35 February 1998, at which another judge was presiding. The court heard testimony from at least fourteen witnesses. A second hearing was scheduled for 30 June 1998 because Ms M.V. and two other witnesses failed to show up.
53. During the hearing on 30 June 1998 the Sofia City Court questioned Ms M.V. and the other witnesses. Mr E.S.A.'s testimony from the preliminary investigation was read out before the court because he was absent from the hearing.
54. On 1 July 1998 the Sofia City Court gave judgment, acquitting the applicant of all charges against him. However, the court did not announce the reasons for its judgment until 8 December 1998. It held that Ms M.V.'s and Mr E.S.A.'s testimony regarding the physical features of the offender was very unreliable. The court also refused to take into account the results of the photograph identification made on 13 April 1995 by Mr E.S.A. (see paragraph 13 above), holding that it had been effected in breach of the relevant rules of evidence and was thus inadmissible. Finally, the court found it established that the applicant had an alibi in respect of both alleged offences. As regards the first alleged offence, it found that at the time of the robbery of Mr E.S.A. the applicant had been in Novi Pazar because the shop he had been managing there had been robbed several days before that. As regards the second alleged offence, the court held that at the time of the robbery the applicant had been visiting a friend together with his girlfriend.
55. On 13 July 1998 the Sofia City Prosecutor's Office appealed against the judgment to the Sofia Court of Appeals, stating that the Sofia City Court had not properly established the facts. The appeal did not mention further particulars in support of this position and stated that additional arguments would be provided after the announcement of the reasons for the judgment by the Sofia City Court.
56. On 17 July 1998 the applicant's lawyer requested the Sofia Court of Appeals to declare the prosecution's appeal inadmissible for failure to specifically describe the non-elucidated facts.
57. On 29 December 1998, after having received on 8 December the reasons for the Sofia City Court's judgment (see paragraph 54 above), the Sofia City Prosecutor's Office filed an “additional submission” which contained detailed arguments in support of its appeal. It submitted that the Sofia City Court had erroneously assessed certain witness testimony and that its findings of fact had not reflect correctly the evidence presented.
58. On 13 January 1998 the applicant's lawyer made an objection, arguing that the prosecution's appeal should be declared inadmissible as the first filing had been defective and the “additional submission” – allegedly the valid appeal – had been lodged out of time.
59. The Sofia Court of Appeals accepted the appeal for consideration, briefly noting that the detailed argumentation had been filed later because of the late announcement of the reasons for the Sofia City Court's judgment and that there was no indication that the appeal was out of time.
60. A hearing was held on 11 March 1999 at which oral argument was heard but no new evidence presented.
61. On the same date the Sofia Court of Appeals quashed the acquittal and remitted the case to the Sofia City Prosecutor's Office on the ground that on 23 January 1997 the applicant had been charged in violation of the procedural requirements, his signature being missing from the minutes of the charging. Thus, it was unclear whether he had understood the nature and the cause of the accusation against him. That amounted to a serious violation of the applicant's defence rights, despite the fact that his lawyers had been present at the charging.
62. The court's judgment was not subject to appeal, as it did not put an end to the criminal proceedings.
63. On 12 May 1999 the Sofia City Prosecutor's Office returned the case to the investigator, instructing him to carry out certain investigative actions.
64. The applicant was charged anew on 14 July 1999. The investigator recommended his committal for trial.
65. On 2 November 1999 the Sofia City Prosecutor's Office submitted to the Sofia City Court an indictment against the applicant.
66. On 5 November 1999 the reporting judge set the case down for hearing on 1, 2 and 5 June 2000.
67. The Sofia City Court held several hearings on 1, 2 and 5 June, 10 October and 2 November 2000 and 2 February and 8 March 2001.
68. In a judgment of 8 March 2001 the Sofia City Court again acquitted the applicant of all charges against him. The court held that Mr E.S.A.'s testimony about the physical features of the offenders was controversial and unreliable. It also held that the photograph identification was inadmissible because effected in breach of the relevant rules of evidence (see paragraph 13 above). The court went on to hold that Ms M.V.'s testimony about the physical features of the person who had robbed her was likewise unreliable. The court further held that the applicant had an alibi for both offences. As regards the first alleged offence, from 10 till 12 April 1995 the applicant had been in Novi Pazar, because the shop he had been managing there had been robbed on 9 April 1995. He had stayed at a friend's house and had met officers from the local police station and several other persons. He had taken a train in the evening of 12 April, at 11.55 p.m., and had arrived back in Sofia in the morning of 13 April 1995. As regards the second alleged offence, the court held that at the time of the robbery the applicant had been visiting a friend together with his girlfriend.
69. On 3 April 2001 the Sofia City Prosecutor's Office appealed against the judgment to the Sofia Court of Appeals.
70. The Sofia Court of Appeals held a hearing on 5 October 2001.
71. In a judgment of 23 January 2002 the Sofia Court of Appeals upheld the acquittal.
72. No appeal was lodged against the judgment and it entered into force on 11 February 2002.
73. On 8 May 1996 the applicant turned himself in and was detained pursuant to the investigator's order of 5 September 1995 (see paragraph 15 above).
74. On 17 May 1996, when the applicant was also charged with robbing Ms M.V.'s car, his detention was confirmed by the investigator on the ground that another investigation was pending against him.
75. On 24 June 1996 the Sofia City Prosecutor's Office held, in response to an application for bail, that the applicant had been charged with a serious intentional offence, that there was a risk that he would flee, jeopardise the investigation, or reoffend. In particular, prior to his arrest he had been hiding. Also, another investigation was pending against him, which, according to Article 152 § 3 of the CCP, made detention mandatory. It therefore refused bail.
76. On 11 September 1996 the applicant again applied for bail.
77. On 24 September 1996 a prosecutor from the Sofia City Prosecutor's Office granted bail, but apparently his order was not found in the case file and was never put into effect.
78. On 26 September 1996 the deputyhead of the Sofia City Prosecutor's Office reversed the bail order, holding that under Article 152 § 2 of the CCP a detainee charged with a serious intentional offence could only be released if there existed serious indications that he or she would not abscond, obstruct the investigation or commit an offence. In the case at hand this prerequisite was missing. On the contrary, the available information indicated that there was a serious risk of the applicant fleeing or committing an offence, because he had been hiding for ten months prior to his arrest. Moreover, another investigation was pending against him, which excluded release on bail.
79. The applicant's lawyer appealed against this order to the Chief Prosecutor's Office. By an order of 14 October 1996 the Chief Prosecutor's Office dismissed the appeal. It held that the applicant had been charged with two serious intentional offences and that sufficient evidence pertaining to his guilt had been collected. Furthermore, in view of the nature of the alleged offences, the applicant's release could seriously obstruct the investigation. There was also a danger that the applicant could flee.
80. On 10 March 1997 the reporting judge at the Sofia City Court held of her own motion that there were no grounds for granting bail at that point and decided to continue the applicant's detention.
81. On 7 May 1997 the applicant's lawyer requested the applicant's release. It was argued that the investigation had already been completed and that there was hence no risk of the applicant jeopardising it, and that there was no indication that if released the applicant, who was a student and wished to continue his education, would commit an offence. Moreover, the applicant had not tried to hide because he had never been properly summoned.
82. In a decision of 8 May 1997 made in private the reporting judge refused bail. She held that the applicant had been charged with serious intentional offences, which meant that release was only possible if the exception of Article 152 § 2 of the CCP was applicable. However, prior to his arrest the applicant had been hiding for approximately ten months, thus demonstrating his intention to jeopardise the investigation. On the other hand, another investigation was pending against him, which, under Article 152 § 3 of the CCP, excluded the possibility for release.
83. The applicant did not appeal against the decision.
84. On an unspecified date in August or September 1997 the applicant's lawyer again requested the applicant's release, arguing that he had a permanent address and was enrolled in university and that his girlfriend had given birth to his baby on 9 October 1996.
85. The reporting judge at the Sofia City Court rejected the applicant's request in a decision of 8 September 1997 made in private. She held, inter alia, that the applicant's lengthy hiding had hindered the investigation and that another investigation was pending against him for a robbery allegedly committed in Novi Pazar. It appears that the judge was referring to the investigation into the robbery of the applicant's girlfriend's shop, in which the applicant was not the suspect, but the victim (see paragraph 23 above).
86. On 18 September 1997 the applicant's lawyer appealed against the decision to the Supreme Court of Cassation. She lodged the appeal with the Sofia City Court, but on 22 September 1997 the court rejected it as inadmissible, holding that, being his mother and having been questioned as a witness, the applicant's lawyer could not also act as his defence counsel. Following this, the same day the applicant lodged an appeal in person. He argued that he had not been hiding: he had been taking his university examinations and staying in hotels; the authorities had never made an effective effort to find him. He further explained the misunderstanding concerning the investigation in Novi Pazar. In addition, he complained that the Sofia City Court had failed to address the question of the reliability of the evidence on which the charges had been based or to consider the factors militating against his continued detention.
The reporting judge examined the appeal, and having found no grounds to vary its decision, sent it together with the casefile to the Supreme Court of Cassation.
87. On 7 October 1997 the Supreme Court of Cassation, sitting in private and in the presence of a prosecutor who argued that the appeal was ill-founded, dismissed the appeal. It noted that the applicant had been charged with two serious intentional offences, that he had been hiding and that there had been no change in circumstances warranting his release. Despite the applicant's explanation concerning the misunderstanding in respect of the Novi Pazar investigation, the Supreme Court of Cassation repeated the reference to an investigation pending against him there.
88. On 5 February 1998, the third day of the trial, the Sofia City Court granted bail, setting the amount at five million old Bulgarian levs. The court held that prior to his arrest the applicant had been in Svishtov taking his university examinations, that there was no indication that he would abscond, that his clean criminal record suggested that there was little danger of him committing an offence, and that there was no risk that he would obstruct the investigation. The applicant posted bail the same day and was released on 6 February 1998.
89. Article 199 § 1 (1) of the Criminal Code (“the CC”), read in conjunction with Article 198 § 1 thereof, provides that robbery of chattels in large amounts is punishable by five to fifteen years' imprisonment.
90. At the relevant time and until the reform of the CCP of 1 January 2000 the accused could be detained by decision of an investigator or a prosecutor. In cases where the decision to detain had been taken by an investigator without the prior consent of a prosecutor, it had to be approved by a prosecutor within twentyfour hours (see Nikolova v. Bulgaria [GC], no. 31195/96, § 28, ECHR 1999II).
91. The role of investigators and prosecutors under Bulgarian law has been summarised in paragraphs 2527 and 29 of the Court's judgment in the case of Nikolova v. Bulgaria (cited above).
92. Article 152 §§ 1 and 2 of the CCP, as in force at the relevant time, provided as follows:
“1. Pretrial detention shall be ordered [in cases where the charges concern] a serious intentional offence.
2. In the cases falling under paragraph 1 [pretrial detention] may be dispensed with if there is no risk of the accused obstructing the course of justice, absconding or committing further offences.”
93. Article 93 § 7 of the CC defines a “serious” offence as one punishable by more than five years' imprisonment.
94. The Supreme Court's practice at the relevant time (it has now become at least partly obsolete as a result of amendments to the CCP in force since 1 January 2000) was that Article 152 § 1 required that a person charged with a serious intentional offence be detained. An exception was only possible, in accordance with Article 152 § 2, where it was clear beyond doubt that any risk of absconding or reoffending was objectively excluded as, for example, in the case of a detainee who was seriously ill, elderly, or already in custody on other grounds, such as serving a sentence (опред. № 1 от 4 май 1992 г. по н.д. № 1/92 г. на ВС І н.о.; опред. № 48 от 2 октомври 1995 г. по н.д. № 583/95 г. на ВС І н.о.; опред. № 78 от 6 ноември 1995 г. по н.д. 768/95 г.).
95. Paragraph 3 of Article 152, as in force until 11 August 1997, provided that remand in custody was mandatory without exception where other criminal proceedings for a publicly prosecutable offence were pending against the accused, or where he or she was a repeat offender.
96. On 21 March 1997 the Supreme Court of Cassation examined a request by the Chief Prosecutor for an interpretative decision on Article 152 of the CCP. The court considered that Article 152 § 3 of the CCP was incompatible with the Constitution, the Convention and the International Covenant on Civil and Political Rights. It therefore decided to submit the matter to the Constitutional Court which is competent to rule on the compatibility of legislation with the Constitution and international treaties. Ultimately, the Constitutional Court did not decide the point, as the impugned provision was repealed with effect from 11 August 1997.
97. Article 152 § 5 of the CCP, as in force until August 1997, provided as follows:
“The detained person shall be provided immediately with a possibility of filing an appeal with 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.”
98. The Supreme Court has held that, in deciding on appeals against pretrial detention, 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. № 24 от 23 май 1995 г. по н.д. 268/1995 г. на ВС I н.о.).
99. In a decision of 17 September 1992 the Supreme Court found that the imposition of pretrial detention could be contested before a court only once (опред. № 94 по н.ч.х.д. 754/1992 г. на ВС I н.о.). Thus, until the amendment of the CCP in August 1997, periodic judicial review of the lawfulness of detention was only possible when the criminal case was already pending before a court.
100. After the prosecution has filed an indictment against the accused with the court and the case is being prepared for trial, it is the reporting judge from the trial court who rules on all requests relating to the accused's detention (Article 255 of the CCP). In May 2003 that provision was amended, providing that the reporting judge has to hold a public hearing in the presence of the detainee and his counsel. Before that it was silent on the issue. The reporting judge's decision is subject to appeal to the higher court (Article 344 § 3). The appeal must be lodged within seven days (Article 345) with the trial court (Article 348 § 4 in conjunction with Article 317 § 2 until February 1998 and Article 318 § 2 after that), which verifies whether there exist grounds for it to vary its decision (Article 347). If it finds no such grounds, it sends the appeal together with the casefile to the higher court. Article 348 § 1 provides that the higher court may examine the appeal in private or, if it considers it necessary, at a public hearing.
101. It follows from Article 304 § 1 of the CCP that the detainee's requests for release during the trial are examined by the trial court.
VIOLATED_ARTICLES: 5
6
VIOLATED_PARAGRAPHS: 5-3
5-4
6-1