ITEMID: 001-61794
LANGUAGEISOCODE: ENG
RESPONDENT: AUT
BRANCH: CHAMBER
DATE: 2004
DOCNAME: CASE OF YAVUZ v. AUSTRIA
IMPORTANCE: 3
CONCLUSION: Violation of Art. 6-1;Violation of Art. 6-3-c and 6-3-d;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award - domestic proceedings;Costs and expenses partial award - Convention proceedings
JUDGES: Christos Rozakis
TEXT: 8. On 28 April 1993 the Vorarlberg Regional Employment Office (Landesarbeitsamt) granted the B. company, whose executive director was the applicant, a preliminary and temporary work permit for A., another Turkish citizen. It further stated that should the B. company receive a negative decision on the request for a definitive work permit, A. would loose his right to work four weeks after the service thereof. On 25 May 1993 the Regional Employment Office refused to grant A. a definitive work permit. This decision was served on 26 May 1993. The B. company appealed against it and, referring to A.’s preliminary work permit, requested that its appeal be exceptionally granted suspensive effect. On 20 July 1993 the Constitutional Court (Verfassungsgerichtshof) refused this request. This decision was served on the applicant’s counsel on 12 August 1993.
9. On 19 August 1993 the B. company notified the Bregenz District Administrative Authority (Bezirkshauptmannschaft) of its commercial-law manager’s C. representation by counsel in possible administrative criminal proceedings against him for alleged illegal employment of a foreigner. The B. company argued that C. could not be deemed culpable for the period of time while its complaint had been pending before the Constitutional Court, as it was not until the service of that court’s decision that he learned that suspensive effect had not been granted.
10. On 28 October 1993 the Bregenz District Administrative Authority informed the applicant of its suspicion that he had illegally employed A. between 24 June and 10 August 1993. It invited the applicant either to comment in writing or to make an appointment with the authority for an oral justification within two weeks.
11. On 29 November 1993 the applicant replied to the District Administrative Authority by referring in essence to the contents of the B. company’s notification of 19 August 1993.
12. On 2 March 1994 the District Administrative Authority informed the applicant about the evidence taken in his case and attached a statement by the Vorarlberg Regional Employment Office. It invited the applicant to comment, within two weeks, either in writing or personally, at the authority’s office.
13. On 18 March 1994 the applicant submitted that he had initially employed A. on the basis of his preliminary work permit. He argued that he had not acted culpably as, prior to his case, the Constitutional Court had not ruled on the question whether an appeal against the refusal of a work permit could be granted suspensive effect in view of a prior preliminary work permit. Consequently, in such an unclear legal situation, he could not be blamed for a mistake of law either.
14. On 31 March 1994 the District Administrative Authority imposed a fine of 5,000 Austrian schilling (ATS) on the applicant for breach of Section 28 of the Employment of Foreigners Act (Ausländerbeschäftigungs-gesetz). It noted that he had illegally employed A. after his preliminary work permit had expired on 23 June 1993, i.e. four weeks after the service of the Regional Employment Office’s negative decision of 25 May 1993. It remarked that the B. company’s appeal against the latter decision had no effect on the applicant’s case.
15. On 11 May 1994 the applicant appealed against this decision, repeating in essence his submissions of 18 March 1994.
16. On 2 May 1995 the Vorarlberg Independent Administrative Panel (Unabhängiger Verwaltungssenat, hereafter referred to as the “IAP”) summoned the applicant and his counsel to an oral hearing scheduled for 26 May 1995. The summons, which indicated that the applicant’s personal presence was required, was addressed to the applicant’s counsel and stated that counsel was obliged to inform the applicant of the date of the hearing. Further, referring to Section 51 f § 2 of the Code of Administrative Offences (Verwaltungsstrafgesetz), it noted that the hearing would be conducted in his absence if he failed to appear.
17. On 17 May 1995 counsel requested a postponement of the hearing because he planned to attend a conference on that date.
18. On 18 May 1995 the IAP refused this request on the ground that witnesses had already been summoned and that counsel was free to send a colleague as substitute.
19. On 26 May 1995 the IAP, in the absence of the applicant and his counsel, held a hearing at which it heard two witnesses, both cousins of the applicant. One of them informed the authority that the applicant was staying in Turkey and had initially asked him to help clarify the case at issue because of his good command of German. The second witness, an employee of the B. company, confirmed that A. had worked and been paid during the period at issue.
20. On 1 June 1995 the IAP sent the applicant’s counsel the minutes of the hearing and enclosed a letter of the Vorarlberg Regional Employment Office of 4 April 1995, which stated that A. had been covered by compulsory insurance for workers between 6 May and 20 August 1993. The IAP further invited him to comment in writing within one week.
21. On 7 June 1995 counsel requested a suspension of the proceedings until the applicant’s return to Austria in order to hear him in person. On the same day, the IAP informed counsel that the decision would be pronounced publicly on 22 June 1995.
22. On 19 June 1995, referring to the applicant’s right under Article 6 of the Convention, counsel requested again that the proceedings and the public pronouncement be adjourned until the applicant’s return to Austria.
23. On 22 June 1995 the IAP confirmed the District Administrative Authority’s decision. It noted that the facts had been sufficiently established by the witnesses. Thus, there was no need to hear the applicant upon his return to Austria. For the same reason the IAP had also refused the request for adjournment of 19 June 1995. Given the applicant’s representation by counsel throughout the proceedings, counsel had the possibility to attend hearings, where he could have forwarded arguments in favour of the applicant and could have examined the witnesses, thereby preserving the applicant’s defence rights. However, counsel had failed to make use of these opportunities. Moreover, since counsel had only forwarded arguments of law in defence and had never explicitly opposed the imputed fact of employment, there was no reason to hear the applicant. The IAP further held that the applicant could not enjoy impunity for having committed a mistake of law, as this only applied in the event an authority, e.g. the Employment Office, had incorrectly informed him. However, the applicant had never sought legal advice by a competent authority.
24. On 8 August 1995 the applicant lodged a complaint with the Constitutional Court invoking Article 6 of the Convention.
25. On 26 February 1996 the Constitutional Court declined to deal with the complaint on the ground that it did not raise a question of constitutional law. It noted that Article 6 would only be violated if the IAP had incorrectly applied Section 51 f § 2 of the Code of Administrative Offences and remitted the complaint to the Administrative Court (Verwaltungsgerichtshof).
26. On 23 August 1996 the applicant supplemented his complaint and requested legal aid.
27. On 13 November 1996 the Administrative Court noted that the applicant had failed to submit the forms for legal aid request within the set time-limit.
28. On 10 January 1997 the IAP submitted observations in reply, repeating in essence its findings of 22 June 1995.
29. On 1 July 1998 the Administrative Court, referring to its findings in a similar case, dismissed the complaint. It noted that counsel, without just cause, had not attended the hearing. Therefore the IAP had lawfully continued the hearing in the absence of counsel and the applicant, in accordance with Section 51 f § 2 of the Code of Administrative Offences. Consequently, the applicant’s defence rights as guaranteed under Article 6 of the Convention had not been infringed. The decision was served on the applicant’s counsel on 29 July 1998.
30. Section 51 f § 2 of the Code of Administrative Offences (Verwaltungsstrafgesetz) provides that the absence of a party at a hearing, though having been duly summoned, does not impede the holding of the hearing or the decision-taking either.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1
6-3
VIOLATED_BULLETPOINTS: 6-3-c


ITEMID: 001-107162
LANGUAGEISOCODE: ENG
RESPONDENT: MKD
BRANCH: CHAMBER
DATE: 2011
DOCNAME: CASE OF BAJALDZIEV v. "THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA"
IMPORTANCE: 4
CONCLUSION: Violations of Art. 6
JUDGES: Elisabeth Steiner;Erik Møse;Julia Laffranque;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska
TEXT: 6. The applicant was born in 1944 and lives in Skopje.
“... the transfer of the plot and house from the defendant’s mother to the defendant is not contrary either to the constitutional values or other binding regulations since the defendant, as heir, is eligible to have the land, which cannot be subject to any legal transaction, transferred to him ... the first-instance court ignored the fact that the claim had not been submitted against the other party to the contract ...”
“... a question arises as to whether the transfer of the plot and house, under the contract, from the defendant’s mother to the defendant was contrary to the constitutional values and other binding regulations given the fact that the house had already been demolished when the contract was signed. In order to answer this question correctly, one should consider section 19 of the Building Land Act under which rights specified in sections 15 (1) and 17 (1) of that Act can be transferred from the former owner to ... heirs ... Under section 15 (1) of the Building Land Act, the former owner has a right to use undeveloped land. Section 17 (1) provides for the pre-emptive right of the former owner to construct a family house on building land. Section 19 of the Building Land Act, cited above, provides for the right to transfer these rights only to the persons enumerated therein. That means that undeveloped building land can be transferred. The first-instance court established that the plot in question was undeveloped given the fact that the house had been demolished when the contract was concluded. Having regard to the relevant provisions of the Building Land Act, cited above, the transfer of the right of construction to the defendant, as heir, when the gift contract was concluded between the defendant and his mother, was allowed.”
13. The court further accepted the defendant’s arguments that it was not possible to sue Ms N.B., who had died in 1995, and that her heirs should, therefore, take her place. On an unspecified date the applicant specified his claim, introducing Ms B.G.B., Ms N.B.’s daughter, as a co-defendant.
“On the basis of the established facts, the Court of Appeal found that the first-instance court had erred on the law, namely that the gift contract was not contrary to the constitutional values and binding regulations, despite the fact that the house did not exist when the contract was concluded. Under section 19 of the Building Land Act of 1991, the former owner could transfer the rights set forth in sections 15 (1) and 17 (1) of that Act only to ... heirs ..., who could no longer transfer it to other persons. Under section 15 (1) of the Building Land Act, the former owner has the right to use undeveloped land. Section 17 (1) provides for the pre-emptive right of the former owner to construct a family house on building land. Since the defendant is among the persons enumerated in section 19 of the Building Land Act, the court considers that transferring the right of construction to the defendant, as heir, when the gift contract was concluded between the defendant and his mother, was allowed.”
20. Section 65 § 1 (5) of the 1998 Act, in force at the time, provided, inter alia, that a judge could not sit in a case if he or she had participated in the rendering of any decision by a lower court or another body in respect of the same case.
22. The provisions concerning the legality review request relevant to the present case were described in the Bočvarska judgment (see Bočvarska v. the former Yugoslav Republic of Macedonia, no. 27865/02, §§ 54-58, 17 September 2009).
24. Section 103 of the Obligations Act of 1978, in force at the time, specified the conditions under which a contract was regarded as null and void.
VIOLATED_ARTICLES: 6


ITEMID: 001-76952
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: CHAMBER
DATE: 2006
DOCNAME: CASE OF IHSAN AND SATUN ONEL v. TURKEY
IMPORTANCE: 4
CONCLUSION: Violation of P1-1 (one applicant);Remainder inadmissible;Pecuniary damage - financial award;Non-pecuniary damage - finding of violation sufficient
JUDGES: David Thór Björgvinsson
TEXT: 4. The General Directorate of the National Water Board expropriated two plots of land belonging to the applicants, for the construction of a dam.
5. On 6 October 1998, following the first applicant’s request for increased compensation for the plot no. 484, the Baskil Civil Court of General Jurisdiction awarded him 14,241,020,000 Turkish liras (TRL) of additional compensation, plus an interest at the statutory rate, as of 22 June 1998.
6. On 4 March 1999 the Court of Cassation upheld the decision of the first instance court. On 9 February 2002 and 1 May 2003 TRL 25,281,500 and TRL 901,930 were paid to the applicant respectively.
7. On 14 February 2000 the second applicant filed a similar request with the Baskil Civil Court of General Jurisdiction, regarding the plot no. 311.
8. On 29 November 2000 the court accepted the applicant’s request for increased compensation and awarded her TRL 46,396,000,000 of additional compensation, plus an interest at the statutory rate, as of 14 February 2000. On 14 February 2000 and 5 April 2001, TRL 172,512,450,000 and TRL 3,976,900,000 were paid to the applicant respectively.
9. The relevant domestic law and practice are outlined in the Aka v. Turkey judgment of 23 September 1998 (Reports of Judgments and Decisions 1998-VI, §§ 17-25), and Akkuş v. Turkey judgment of 9 July 1997 (Reports 1997-IV, §§ 13-16).


ITEMID: 001-85079
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: CHAMBER
DATE: 2008
DOCNAME: CASE OF DOROKHOV v. RUSSIA
IMPORTANCE: 3
CONCLUSION: Violation of Art. 3;No violation of Art. 6-3-d+6-1;Non-pecuniary damage - award;Pecuniary damage - claim dismissed
JUDGES: Javier Borrego Borrego;Karel Jungwiert;Margarita Tsatsa-Nikolovska;Mark Villiger;Peer Lorenzen;Volodymyr Butkevych
TEXT: 6. The applicant was born in 1967 and lives in Moscow.
7. The applicant used to work as a public prosecutor. In 1998 the police charged him with blackmail and abuse of office. They alleged that the applicant had extorted several cars from the managers of a car repair shop, threatening to harass their business with criminal investigations. Thus, according to the prosecution, in 1997 the applicant was given a car in exchange for the discontinuation of the investigation into the allegedly illegal activities of the shop. Some time later he received from them another car of the same model. In 1998 he was given a new car which was more expensive than the previous one. The prosecution also accused the applicant of illegal possession of firearms, namely a gas handgun found at his place during the search.
8. On 2 October 1998, the police arrested the applicant and detained him in remand prison IZ–48/1, Matrosskaya Tishina, in Moscow. On admission to the prison, the applicant was put in cell no. 210. The rest of the time he spent in four other cells, namely cells nos. 212, 260, 739 and 740.
9. On 8 February 1999, the applicant was put into cell no. 212. The parties’ descriptions of this cell differ.
10. According to the applicant, the environment in this cell was so poor that he developed a skin rash.
11. According to the Government, that cell measured 18.8 square metres and had six bunk beds. The cell had cold running water, a sink, and a toilet partitioned off from the rest of the cell. The prisoners’ food met quality standards established by regulations. There was no infection in the cell. The prisoners had an hour’s daily exercise. Once a week they had a bath and received fresh bedding.
12. On 11 February 1999, the applicant was moved to cell no. 260. The parties’ descriptions of this cell differ too.
13. According to the applicant, this cell measured about 30 square metres and housed between eighteen and twenty-nine prisoners at different times (or twenty-five on average). Because the cell was overcrowded, during most of the seven months he was there the applicant had to share his bunk bed with other prisoners. But even on those few occasions when he had the bed to himself, he could not sleep because the lights and TV were always on, the ventilation was always off, and the prisoners talked day and night. Metal shutters covered both windows, keeping fresh air out. The toilet was not partitioned off from the rest of the cell and was in front of the guards’ peephole.
14. According to the Government, that cell measured 38.9 square metres and had eighteen bunk beds. The cell had cold running water, a sink, and a toilet partitioned off from the rest of the cell. The prisoners’ food met statutory standards of quality. There was no infection in the cell. The prisoners had an hour’s daily exercise. Once a week they had a bath and received fresh bedding.
15. Following the admissibility decision the applicant produced a written statement by Mr M., who had been detained in cell no. 260 between September 1997 and December 1999. He confirmed the applicant’s account of the conditions of detention there, namely that periodically the cell held up to twenty-nine people.
16. On 19 May 1999, the applicant was moved to cell no. 739, then to cell no. 740. These were hospital cells, and the applicant was put there while being treated for a broken leg.
17. According to the Government, the area of the cells was 21.6 square metres and 24.5 square metres correspondingly. The first cell was equipped with four bunk beds and the second one had eight.
18. According to the applicant, even though the prison administration knew that he was a former prosecutor, he had to share these cells with ordinary criminals. With a broken leg, the applicant would have been helpless had the criminals wished to attack him in revenge.
19. According to the Government, the applicant was detained separately from ordinary criminals.
20. On 7 June 1999, the applicant was returned to cell no. 260, where he stayed until his removal from the prison on 4 February 2000.
21. On 31 March 1999, on termination of the investigation the applicant and his lawyer were given access to the materials of the case file. On an unspecified date later the prosecution submitted the case file with the bill of indictment to the Zamoskvoretskiy District Court of Moscow for trial. The applicant was accused of having received three cars from the managers of the car repair shop as a bribe. The applicant was also accused of illegal possession of firearms.
22. On 9 June 1999, referring to Article 223 of the Code of Criminal Procedure the applicant requested the District Court to summon two additional witnesses, Ms V. and Ms G. In his words, those witnesses worked in the prosecutor’s office at the material time; they had seen him pay for the first of the allegedly extorted three cars and therefore could arguably provide evidence for his acquittal. He indicated in his request that in the course of the pre-trial investigation he had asked for those people to be questioned but it had been refused.
23. The request of 9 June 1999 was received by the administration of the detention facility the next day. However, it is unclear when they posted it.
24. On 18 June 1999 the judge of the District Court examined the materials of the case file in camera and found the case ready for trial. The parties disagree as to whether the applicant’s request under Article 223 to call Ms V. and Ms G. had reached the court by that date: according to the applicant, it must have reached the court well before 18 June 1999; according to the Government, the request reached the court only on 23 June 1999, so the judge was unable to examine it.
25. At the first hearing preceding the examination of the case on the merits the court asked the applicant whether he wished to call additional witnesses. The parties disagree as to whether the applicant used this opportunity to call Ms V. and Ms G.: according to the Government, he did not; according to the applicant, he did. From the transcript of the hearing provided by the applicant, it appears that the first hearing took place on 28 October 1999. The applicant asked the District Court to examine his request lodged earlier under Article 223 of the CCrP. The District Court replied that that motion had been received after the assignment of the case for trial. However, the District Court noted that it would be examined later, at the preliminary hearing stage.
26. The applicant agreed that he was a client of the car repair shop and knew its managers. He also confirmed that he had bought several cars from them. However, in his words, those cars were sold to him and were not given as a bribe, as the prosecution suggested. He indicated that in mid-July 1997 Ms V. had seen him paying for the car; he had paid Mr Sh., who acted as an intermediary between the applicant and the car repair shop. The applicant also testified that Ms G. had been present at the time when he had handed money to Mr Sh., and that later the applicant had told her about the deal. In his words, he gave money to Mr Sh. in a closed envelope and did not specify what was in it, since Mr Sh. knew that it was money for the car. Later in the course of the trial the applicant referred on three occasions to the episode of July 1997 where Ms V. and Ms G. had been present.
27. The court made several attempts to secure the attendance of Mr Sh. at the trial. However, Mr Sh. was absent from his address and according to his mother his whereabouts were unknown. The court decided to proceed with the case in his absence and read out the testimonies of that witness given during the face-to-face confrontation with the applicant.
28. At the trial several witnesses were heard. The court heard Mr Br., Mr S., Mr G. and Mr A., who worked at the shop at the material time and had contacts with the accused. They stated that the applicant had threatened them with criminal prosecution and that they had bribed him with the cars. They had also given him cash, to be transferred to other law-enforcement agencies for their “protection”. The court also heard Mr B-k., who had bought the third car in Germany for the applicant. In his words, he had received the money for that car from Mr A., the managers of the car repair shop. Ms P., who had worked in the prosecutor’s office at the material time, testified at the trial that the applicant had asked her to suspend the investigation into the activities of the shop. Some time later the applicant had asked her to help the shop to obtain several licences necessary for their professional activities.
29. The court further examined written statements from several witnesses obtained by the police during the preliminary investigation. It also examined material evidence and documents seized by the prosecution authorities which related to the applicant’s professional activities.
30. Finally, the court examined wiretapping records made secretly by the Federal Security Service in the applicant’s office. The court noted that the wiretapping had been authorised by the Moscow City Court at the request of the Federal Security Service and therefore was admissible evidence. In the court’s opinion, the records of his telephone conversations corroborated the testimonies of witnesses heard at the trial and those questioned by the investigative authorities.
31. The examination of evidence was followed by pleadings by both parties. The applicant pleaded not guilty.
32. On 15 November 1999, the court convicted the applicant as charged and sentenced him to seven years’ imprisonment.
33. After the trial, on 20 December 1999, the applicant asked the court to correct record of the hearing, because his request to call Ms V. and Ms G. had been omitted from the transcript of the first day of the hearing (28 October 1999). On 17 January 2000 the court refused to change the record, on the ground that it was true as it was.
34. The applicant appealed. In the points of appeal he indicated that on 28 November 1998 he had requested the District Court to call witnesses Ms V. and Ms G., who could have confirmed that the applicant had paid for the cars. However, in the applicant’s words the court had ignored that request.
35. On 1 March 2000, the Moscow City Court upheld the conviction on appeal, without, however, examining the applicant’s argument about witnesses Ms V. and Ms G.
36. Under Article 21 of the Detention Act of 1995, all detainees’ correspondence should go through the administration of the remand prison. Letters addressed to the courts should be posted by the administration within one day of their receipt from the detainee.
37. At the time of the relevant events the Code of Criminal Procedure of 1960 (“the old CCrP”) was in force. Under Article 46 of that code the accused had the right to lodge procedural requests with the trial court.
38. Under Article 221 of the old CCrP, after having received the case file from the prosecution with the bill of indictment, the judge, sitting in camera and without the parties, should decide whether or not the case is ready for trial. Under Articles 222 and 223 the judge should also examine written requests lodged by the defence. If the case is ready for trial the judge fixes the date for the preliminary hearing and draws up a list of witnesses to be called. This stage of the proceedings is called “assignment of the case to trial”.
39. The trial commences with a preliminary hearing. Under Article 276 of the old CCrP, the judge should ask the parties whether they wish to call additional witnesses. If such a request is made, the court should hear the parties on that matter and give decision in the form of a ruling, which should be reasoned. The court may also call new witnesses of its own motion.
40. In 1975 the Supreme Court of the Russian Soviet Federative Socialist Republic in a plenary session adopted Ruling no. 5, in which it directed the lower courts as follows:
“Requests received after the case has been assigned to trial but before the trial has begun, should be examined at the preliminary hearing. However, in order to secure their prompt examination the presiding judge may make certain preparatory arrangements beforehand (requests for information, references, and so on).”
The rulings of the Supreme Court adopted in plenary sessions had the force of law. Ruling no. 5, as amended later, was in force at the time of relevant events.
41. After the preliminary hearing the court passes to the stage of “judicial investigation” (sudebnoye sledstviye, Chapter 23 of the old CCrP). This is the part of the trial when the court and the parties examine the evidence, hear and question witnesses, experts and so on. Once the “judicial investigation” is over, the court asks the parties whether they want to supplement the “judicial investigation” with any new elements of proof (Article 294 of the Code). At this moment the defence may ask again for new witnesses to be called.
42. Following the “judicial investigation” the trial passes to the stage of pleadings. The accused person has the right to pronounce a speech called “the last word”. If in this “last word” he informs the court of important new elements of the case, the court should reopen the “judicial investigation” (Article 297 of the Code).
43. Article 264 regulates the keeping of a trial record in the first instance court. It does not require a verbatim record of the trial to be kept, but “a detailed record of the submissions”. In practice, if a verbatim record exists, it is not attached to the official trial record. A party to the proceedings may challenge before the presiding judge the accuracy of the official record within three days of receiving a copy of it.
VIOLATED_ARTICLES: 3
NON_VIOLATED_ARTICLES: 6
NON_VIOLATED_PARAGRAPHS: 6-1
6-3
NON_VIOLATED_BULLETPOINTS: 6-3-d


ITEMID: 001-85583
LANGUAGEISOCODE: ENG
RESPONDENT: HRV
BRANCH: CHAMBER
DATE: 2008
DOCNAME: CASE OF PERIC v. CROATIA
IMPORTANCE: 3
CONCLUSION: Violation of Art. 6-1;Remainder inadmissible;Non-pecuniary damage - award
JUDGES: Christos Rozakis;Dean Spielmann;George Nicolaou;Giorgio Malinverni;Khanlar Hajiyev;Sverre Erik Jebens
TEXT: 4. The applicant was born in 1919 and lives in Opatija.
5. On 23 October 2002 the applicant brought a civil action in the Opatija Municipal Court (Općinski sud u Opatiji) against D. K. and J. K., seeking termination of a contract for lifelong maintenance (ugovor o doživotnom uzdržavanju). She enclosed a copy of the contract in question, drawn up on 3 August 1993, and its annex of 30 November 1999. The contract stipulated that the defendants were to care for the applicant until her death in order to acquire all her property post mortem. She also asked that two witnesses, E. P. and Š. T., be heard. The defendants submitted receipts for monthly payments for the applicant’s maintenance and asked that four witnesses be heard.
6. At the hearing held on 6 February 2003 the Municipal Court heard evidence from the parties and after that, in the presence of the applicant’s counsel, scheduled the next hearing for 17 March 2003. The applicant’s counsel fell ill and had to be hospitalised pending urgent surgery. On 11 March 2003 he sent a fax to the Municipal Court excusing himself from the hearing scheduled for 17 March and asked for an adjournment of the hearing. However, the Municipal Court proceeded with the hearing and heard two witnesses, Lj. M. and Š. M., the parents of one of the defendants. It also scheduled a further hearing for 23 April 2003 and ordered that two other witnesses, also called on behalf of the defendants, be heard. Neither the applicant nor her counsel were notified of the hearing.
7. The counsel did attend the hearing of 23 April 2003, which he had learned about by chance when at the Opatija Municipal Court on that day for other reasons. The Municipal Court heard two witnesses for the defendants, A. A. and I. P., as scheduled, but refused the proposal of the applicant’s counsel that five other witnesses be heard. The relevant parts of the transcript of the hearing read as follows:
“Counsel for the plaintiff asks that the plaintiff’s neighbours M. C., S. R., V. G., N. I. and N. Z. be heard as witnesses about the circumstances of the applicant’s daily life and the care she has received from them in the past two years and in particular in the period of four months following her release from a hospital, when she was immobile.
...
Counsel for the plaintiff withdraws his request that E. P. be called as a witness since, according to the plaintiff, that person is not able to attend a hearing at the court.
The judge decides that evidence is not to be heard from Š. T., E. P., M. C., S. R., V. G., N. I. and N. Z. and no further evidence is to be presented.”
The Municipal Court proceeded by closing the proceedings and pronouncing its judgment, dismissing the applicant’s claim. The relevant part of the judgment read as follows:
“In view of the above, the court considers that the factual background has been fully established on the basis of the parties’ testimony and in particular in the contract for lifelong maintenance and its annex and the enclosed receipts for payment. For that reason the court declined to hear evidence from the witnesses called on behalf of the plaintiff, because these witnesses cannot tell the court anything of influence on its judgment, save for the fact that they, owing to the plaintiff’s age, have been increasingly assisting her on a daily basis. For precisely that reason the court is not relying on the evidence heard from the witnesses Lj. M., Š. M. and A. A.”
8. A subsequent appeal by the applicant was dismissed by the Rijeka County Court (Županijski sud u Rijeci) on 10 December 2003.
9. On 12 February 2004 the applicant lodged a constitutional complaint alleging, inter alia, that her right to a fair trial had been infringed, because the hearing of 17 March 2003 had been held in the absence of her counsel who had duly excused himself due to his urgent hospitalisation and that she had thus been prevented from questioning two witnesses. Furthermore, neither she nor her counsel had been notified of the hearing scheduled for 23 April 2003. Although her counsel did attend the hearing, which he had learned about by chance on the very same day, he had not been able to prepare himself to question the two further witnesses who had been heard at that hearing. Thus, she had been prevented from questioning any of the four witnesses, all of whom had been heard on behalf of the defendants. Finally, she complained that the Opatija Municipal Court had refused to hear any of her seven witnesses. On 21 June 2006 the Constitutional Court (Ustavni sud Republike Hrvatske) dismissed the complaint as ill-founded.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-73253
LANGUAGEISOCODE: ENG
RESPONDENT: SVN
BRANCH: CHAMBER
DATE: 2006
DOCNAME: CASE OF ROZMAN v. SLOVENIA
IMPORTANCE: 4
CONCLUSION: Violation of Art. 6-1;Violation of Art. 13;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings
JUDGES: David Thór Björgvinsson;John Hedigan
TEXT: 5. The applicant was born in 1964 and lives in Celje.
6. On 27 December 1996 the applicant was injured in a car accident. The perpetrator of the accident had taken out insurance with the insurance company ZT.
7. On 8 October 1998 the applicant instituted civil proceedings against ZT in the Celje District Court (Okrožno sodišče v Celju) seeking damages in the amount of 2,104,500 tolars (approximately 8,780 euros) for the injuries sustained.
Between 15 March 1999 and 5 May 2003 the applicant made six requests that a date be set for a hearing.
Between 5 September 2000 and 4 June 2004 the applicant lodged five preliminary written submissions and/or adduced evidence.
Of the three hearings held between 4 December 2000 and 8 September 2004 none was adjourned at the request of the applicant.
On 5 November 2001 the judge presiding the case was appointed to the Celje Higher Court (Višje sodišče v Celju) and the case was transferred to a new judge.
During the proceedings the court appointed a medical expert.
At the last hearing the court decided to deliver a written judgment. The judgment, upholding the applicant’s claim in part, was served on the applicant on 1 December 2004.
8. On 3 December 2004 the applicant appealed to the Celje Higher Court.
The proceedings are still pending.
VIOLATED_ARTICLES: 13
6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-58103
LANGUAGEISOCODE: ENG
RESPONDENT: FRA
BRANCH: CHAMBER
DATE: 1997
DOCNAME: CASE OF SERVES v. FRANCE
IMPORTANCE: 3
CONCLUSION: No violation of Art. 6-1;No violation of Art. 6-1+6-3-b;Not necessary to examine Art. 10
JUDGES: C. Russo;John Freeland;R. Pekkanen
TEXT: 7. Mr Paul Serves is a regular officer in the French army and at the material time held the rank of captain. He was in command of the first company (“the company”) of the 2nd Foreign Parachute Regiment (“2nd Para”) and was based in the Central African Republic.
8. On 5 April 1988 the company set off on a “provincial tour” in the Awajaba region in the north of the Central African Republic.
On 11 April the applicant called together the heads of platoon and told them that poachers had been reported to him in the presidential reserve and Bamingui-Bangoran National Park and that they were to carry out an “unofficial” investigation mission. He designated two areas; one platoon of the company, under the applicant’s command, was to investigate in one of them and a second platoon, under the command of Lieutenant C., was to investigate in the other. A third platoon was to relieve the second after forty-eight hours. The applicant said that any poachers encountered should be intercepted and, if they fled, should if necessary be fired on after a warning had been given. The operation began on the morning of 13 April.
On 14 April 1988 a patrol from the second platoon, commanded by Staff Sergeant B., came upon two natives who fled on seeing them. Staff Sergeant B. fired two shots, wounding one of the fugitives in the leg. On hearing of the incident from the Staff Sergeant, Lieutenant C. went to the scene with the platoon’s medical orderly, Corporal J. The injured man was treated and taken to the bivouac, where Lieutenant C. ordered Corporal D. to dig a grave. An hour after that had been done, and after being questioned, the captive, on Lieutenant C.’s orders, was dispatched by means of five shots fired by Corporal D. and then buried.
9. The applicant was told of the incident on 15 or 16 April 1988 and ordered his men to remain silent. They returned to their camp at Bouar on 21 April. In his report on the “provincial tour” the applicant made no mention of any incident.
10. When questioned on 22 April 1988 by Lieutenant-Colonel Champy, the commanding officer of the French operational assistance units (“the EFAO”) in Bouar, who had heard rumours of an incident during the tour, the applicant and Lieutenant C. said that they had found a native’s body, had buried it and had not reported the matter out of discretion. They drew up reports relating this version of the events. The Central African authorities were informed on 23 April and no further inquiries were made.
11. On 13 May 1988, however, Colonel Larrière, the commanding officer of the EFAO in the Central African Republic, was told that evidence given to the Central African police implicated his soldiers. He therefore decided to recommence the inquiry and on 15 May personally interviewed the applicant, Lieutenant C., Staff Sergeant B. and Corporal J. The applicant and Lieutenant C. confirmed the content of their original reports. As their statements differed in some respects, however, Colonel Larrière interviewed Lieutenant C. again. The lieutenant then admitted that Staff Sergeant B. had opened fire on the poacher, who had been injured in the leg and had received medical treatment at the scene of the incident. He also said that the captive had died from his injuries shortly after being taken to the bivouac and that he himself had ordered that he should be buried at once.
12. On his return to Bangui with the applicant and Lieutenant C., Colonel Larrière had the matter reported to the Army Chief of Staff. On 17 May 1988 the Chief of Staff told the colonel that he had been in touch with the prosecutor at the Paris Military Court, that an application should be made to the EFAO military police – a gendarmerie detachment assigned during operations to a large unit or base to carry out general policing and criminal-investigation duties – and that the company was to be relieved as soon as possible.
13. In a commanding-officer report of 20 May Colonel Larrière said that he believed Lieutenant C.’s latest statement on the circumstances of the poacher’s death. He also set out the facts described above (see paragraphs 8–12), concluded that the applicant was “wholly” responsible and asked for disciplinary penalties to be imposed on him (replacement as head of his unit and a reprimand by the Minister of Defence) and on Lieutenant C. (forty days’ arrest).
14. The soldiers involved in the case were sent back to France on 21 May 1988. There, the applicant, Lieutenant C., Staff Sergeant B., Corporal J. and the other two heads of platoon in the unit were questioned by General Guignon, the commanding officer of the 11th Parachute Division and the 44th Territorial Army Division. In his commanding-officer report of 25 May 1988 to the Army Chief of Staff he mentioned a rumour that the poacher had been “finished off” by Corporal D. and concluded that Lieutenant C. and the applicant bore the responsibility, which was “weighty” in the latter’s case.
General Guignon questioned the applicant, Staff Sergeant B., Corporal J. and Lieutenant C. again. Lieutenant C. admitted that Corporal D. had, on his orders, shot the injured man in order to “put an end to the suffering of a dying man”. This was later confirmed by the corporal. A commanding-officer report of 1 June gives an account of this and concludes: “the responsibility lies mainly … with the two officers in question”.
15. On 18 May 1988 Colonel Larrière had informed the commandant of the Bangui military police of the facts of the case. The commandant had opened a preliminary inquiry and on 18 and 20 May 1988 sent messages to the prosecutor at the Paris Military Court, reading as follows:
“First: investigation being carried out by commanding officer of Bangui military police detachment (CAR) assisted by Bangui and Bouar military police personnel [;] pending proceedings do not require soldiers in question to be detained here in view of line taken by Head of State of Central African Republic.
Second: all personnel involved will have made statements before returning to France.
Third: personnel concerned will depart for Bastia with their unit on Saturday 21 May 1988 ...”
and
“Further to telephone call today 20 May 1988, names of soldiers implicated in the case are
(1) Serves, Paul, Captain. (2) [C.], Lieutenant. (3) [B.], Staff Sergeant. (4) [J.], Corporal.
Unable at present to give you detailed account of facts. Information currently being sought.
Please ask CEMA [Army Chief of Staff] to make arrangements with EFAO Bangui for soldiers in question to be conveyed to Paris. Request message confirming instructions you gave by telephone and possibly also fresh orders – even at once orally.”
16. On 21 May 1988 the commandant of the military police interviewed Colonel Larrière, who had given him a copy of his report of 20 May. An official report of 21 May, to which the colonel’s report and the record of his interview were annexed, brought the investigation to an end.
17. On an application of 20 May 1988 by the prosecutor at the Paris Military Court an investigation was begun.
On 24 May 1988 the applicant was charged with manslaughter, and on 23 June 1988 a murder charge was substituted. He was detained pending trial from 24 May to 21 July 1988. Lieutenant C. and Corporal D. were also charged with murder, and three other legionnaires, from the company’s second platoon, were charged with aiding and abetting murder; Corporal J. was charged with manslaughter and Staff Sergeant B. with wounding with intent or wilful violence or assault, entailing or not unfitness for work for not more than eight days.
18. On 9 October 1989, on an application by the prosecutor, the First Indictment Division of the Paris Court of Appeal, exercising jurisdiction as the body supervising judicial investigations by the Military Court, gave the following judgment:
“...
The body supervising the judicial investigation
...
Notes that the investigation was commenced on an application of 20 May 1988 made without the opinion of the Minister of Defence or of the authority referred to in Article 4 of the Code of Military Criminal Procedure having first been obtained as required by Article 97 of that Code.
Holds that this irregularity, seeing that the offenders were not caught in the act, had the effect of infringing the rights of those against whom proceedings have been brought, and that at the same time they were also not afforded a fair hearing as some of the evidence from the preliminary inquiry had not been placed in the file.
Consequently declares void the application of 20 May 1988 for a judicial investigation and the steps subsequently taken in the proceedings.
Declares that the preliminary inquiry and the messages of [18] and 20 May 1988 remain effective.
...”
19. In response to a request from the prosecutor on 21 October 1989, the Minister of Defence issued an opinion on 10 November 1989 in which he stated that the facts appeared to constitute a serious crime (crime) and that criminal proceedings should be brought.
20. On an application of 13 March 1990 by the prosecutor (which referred to the official report of 12 May 1988, the messages of 18 and 20 May 1988, General Guignon’s commanding-officer reports of 25 May and 1 June 1988 and the Minister of Defence’s opinion), a judicial investigation, for murder, was begun in respect of Lieutenant C. and Corporal D. only. They were charged on 19 April 1990.
21. In connection with that investigation, the applicant was summoned to appear as a witness before the military investigating judge three times (at hearings on 12, 19 and 26 September 1990). On each occasion he attended but refused to take the oath and give evidence.
22. At those hearings the investigating judge ordered Mr Serves to pay fines of 500 French francs (FRF), FRF 2,000 and FRF 4,000 respectively for refusing to take the oath and give evidence.
23. The applicant appealed against those orders to the First Indictment Division of the Paris Court of Appeal. His main argument in his pleadings was that as, in its judgment of 9 October 1989, the Division had expressly declared that the preliminary inquiry and the messages of 18 and 20 May 1988 on which his 1988 charge had been based remained effective, there was incriminating evidence against him such as enabled him to be charged, so that he could not be examined as a witness without his defence rights being infringed and a breach of Article 6 of the Convention and Article 105 of the Code of Criminal Procedure being committed. He further maintained that he had offered the same explanation for his refusal to the investigating judge at the first interview; this is not, however, mentioned in the records of his interviews.
24. On 29 October 1990 the Indictment Division of the Paris Court of Appeal upheld the orders in issue. It gave the following grounds in its judgment:
“The application for a judicial investigation and the subsequent steps in the investigation were declared void in the judgment of 9 October 1989 of the body supervising the judicial investigation, and it follows from Article 173 of the Code of Criminal Procedure that no information against parties to the proceedings may be derived from documents declared void, ‘which have been removed from the investigation file and filed in the registry’, at peril of committing criminal malfeasance in public office in the case of judges and on pain of disciplinary proceedings being taken in the case of defence counsel.
Consequently, even if the witness Paul Serves is of the view that his counsel’s reference to documents declared void does not adversely affect him, the body supervising the investigation cannot take the same view without contravening Article 173 cited above, thereby rendering its members liable to prosecution as provided in that Article.
The supervisory body consequently declines to look at the documents and steps in the investigation that have been declared void.
Since Paul Serves was not referred to by name in the application [of 13 March 1990], the investigating judge was entitled to examine him as a witness, provided that Article 105 of the Code of Criminal Procedure was complied with.
Although Captain Serves’s immediate superior, General Guignon, judged that Captain Serves had committed faults that made him liable and were likely to attract a disciplinary penalty, it was for the investigating judge to assess whether the evidence obtained during the preliminary investigation and the inquiry by commanding officers, which are the only documents from the investigation concerning Captain Serves, amounted to substantial, consistent evidence of his guilt.
By Article 105 of the Code of Criminal Procedure, the investigating judge had to take his decision without deriving information from the documents that had been declared void.
The records of the applicant’s interviews show that he refused to take the oath without offering any explanation for this unusual conduct.
The investigating judge was thus not put in a position to reassess whether Article 105 of the Code of Criminal Procedure was applicable in the light of hearing the witness’s explanation for this procedural difficulty.
As matters stand, the body supervising the judicial investigation cannot, without going beyond the scope of the application that has been made to it, consider whether or not Paul Serves should be heard as a witness.
The supervisory body finds that the investigating judge complied with Article 108 of the Military Criminal Code and Article 109 of the Code of Criminal Procedure.
...”
25. The applicant lodged an appeal on points of law on 31 October 1990. He maintained, inter alia, that there had been a breach of Article 6 of the Convention and of Article 105 of the Code of Criminal Procedure.
26. The Court of Cassation (Criminal Division) dismissed the appeal in a judgment of 23 October 1991, on the following grounds:
“...
In order to justify upholding [the] orders [of 12, 19 and 26 September 1990], the Indictment Division, after stating that it could not, without contravening Article 173 of the Code of Criminal Procedure, derive information from documents that had earlier been declared void or, without going beyond the scope of the application made to it, consider whether or not Serves should be heard as a witness, noted that he had refused to take the oath without giving any reason and that the investigating judge had thus not been put in a position to assess whether Article 105 of the Code cited above was applicable.
In view of these wholly adequate reasons, the Indictment Division provided a legal basis for its judgment ...”
27. On 10 November 1992 the Treasury bailiff collected the fines plus costs and interest, amounting in all to FRF 6,761.
28. On 6 May 1992 the applicant was again charged with murder.
29. On 28 February 1994 the First Indictment Division of the Paris Court of Appeal indicted Corporal D. for murder, and Lieutenant C. and the applicant for aiding and abetting murder.
On 11 May 1994 the Paris Military Court convicted and sentenced Corporal D. to one year’s imprisonment, suspended, Lieutenant C. to three years’ imprisonment, with one year suspended, and the applicant to four years’ imprisonment, with one year suspended.
An appeal on points of law by the applicant and Lieutenant C. against the judgments of 28 February 1994 and 11 May 1994 is still pending.
30. Article 108 of the Military Criminal Code provides:
“The investigating judge shall summon, or have brought before him, at no cost, by a police officer, any person whose evidence he deems useful.
Article 109 of the Code of Criminal Procedure shall apply to a witness who fails to appear or who appears but refuses to take the oath and give evidence ...”
31. Article 109 of the Code of Criminal Procedure provides:
“Anyone summoned to be examined as a witness shall be required to appear, to take the oath and to give evidence …
If a witness fails to appear, the investigating judge may, on an application by the public prosecutor, have the witness brought before him by the police and order him to pay a fine of FRF 3,000 to FRF 6,000 ...
The same penalty may, on an application by the public prosecutor, be imposed on a witness who appears but refuses to take the oath and give evidence.
...”
32. Article 105 of the Code of Criminal Procedure, however, which applies to military criminal proceedings by virtue of Article 103 of the Military Criminal Code, provides:
“An investigating judge in charge of an investigation and judges and senior detectives acting at a judge’s request may not, with the aim of frustrating the rights of the defence, examine as witnesses persons against whom there is substantial, consistent evidence of guilt.”
NON_VIOLATED_ARTICLES: 6
NON_VIOLATED_PARAGRAPHS: 6-1
6-3
NON_VIOLATED_BULLETPOINTS: 6-3-b


ITEMID: 001-96205
LANGUAGEISOCODE: ENG
RESPONDENT: AUT
BRANCH: CHAMBER
DATE: 2009
DOCNAME: CASE OF KOPPI v. AUSTRIA
IMPORTANCE: 3
CONCLUSION: No violation of Art. 14+9
JUDGES: Christos Rozakis;Dean Spielmann;Elisabeth Steiner;George Nicolaou;Khanlar Hajiyev;Sverre Erik Jebens
TEXT: 6. The applicant was born in 1982 and lives in Rankweil.
7. The applicant is a member of the “Bund Evangelikaler Gemeinden in Österreich”, which became a registered religious community (eingetragene Bekenntnisgemeinschaft) under the Registered Religious Communities Act 1998 (Bundesgesetz über die Rechtspersönlichkeit von religiösen Bekenntnisgemeinschaften) on 11 July 1998.
8. From 2000 to 2001 the applicant attended the one-year course of the St Chrischona theological seminary (Bibelschule) in Switzerland. Since then he has been giving religious instruction to the youth and has been working as a municipal preacher (Prediger).
9. On 27 September 2000 the applicant filed a request with the Federal Minister for Internal Affairs (Bundesminister für Inneres) for recognition as a conscientious objector (Zivildiensterklärung).
10. On 16 November 2000 the Minister for Internal Affairs recognised the applicant as a conscientious objector. Accordingly, he was exempted from the duty to perform military service but liable to perform civilian service (Zivildienst).
11. On 20 December 2000 the applicant requested the Minister of Internal Affairs to apply section 13a § 1 of the Civilian Service Act in conformity with the Constitution and to exempt him from the obligation to perform civilian service. He submitted that this provision exempted members of recognised religious societies who performed specific services relating to worship or religious instruction from the obligation to perform civilian service, whereas he, as a student of the theological seminary St. Chrischona, had a comparable clerical position within a registered religious community, namely the “Bund Evangelikaler Gemeinden in Österreich”. Consequently, he should be also exempted from civilian service.
12. On 18 January 2002 the Minister of Internal Affairs dismissed the applicant's request. The decision referred to the findings of the Constitutional Court (Verfassungsgerichtshof) in a decision of 11 November 1998, in which it had held that exemption from the obligation to perform civilian service under section 13a of the Civilian Service Act merely applied to members of recognised religious societies and could not be extended to members of registered religious communities.
13. On 13 March 2002 the applicant filed a complaint with the Constitutional Court.
14. On 7 October 2002 the Constitutional Court declined to deal with the complaint for lack of prospects of success.
15. On the applicant's request the Constitutional Court transmitted his complaint to the Administrative Court (Verwaltungsgerichtshof).
16. On 18 February 2003 the applicant supplemented his complaint.
On 18 March 2003 the Administrative Court, referring to the above-mentioned decision of 11 November 1998 by the Constitutional Court, dismissed the complaint. This decision was served on the applicant's counsel on 9 April 2003.
17. Section 13a § 1 of the Civilian Service Act (Zivildienstgesetz) provides as follows:
“An exemption from the obligation to perform civilian service shall apply to the following members of recognised religious societies:
1. ordained priests,
2. persons involved in spiritual welfare or in clerical teaching after graduating in theological studies,
3. members of a religious order who have made a solemn vow, and
4. students of theology who are preparing to assume a clerical function.”
18. For a detailed description of the legal situation in Austria in this field see Löffelmann v. Austria, no. 42967/98, §§ 23-39, 12 March 2009.
NON_VIOLATED_ARTICLES: 14
9


ITEMID: 001-5006
LANGUAGEISOCODE: ENG
RESPONDENT: GRC
BRANCH: ADMISSIBILITY
DATE: 2000
DOCNAME: GEORGIOU v. GREECE
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Marc Fischbach
TEXT: The applicant is a Cypriot national, born in 1971 and living in Paphos (Cyprus). He is represented before the Court by Mr A. Demitriadis, Mrs E. Georgiou-Taliotou and Mrs V. Loizides, lawyers practising in Cyprus.
A.
In October 1990 the applicant went to Greece to study law at the University of Athens.
In the night of 17-18 February 1996, he was with some friends at a night club celebrating carnival. At about 5.20 a.m. he left the club with a friend of his. He had had a number of drinks (mix of wine and ouzo) and was intoxicated when he left the club.
At a flat, a few meters away from the club, a robbery and attempted murder of an old lady had taken place at about that time. The neighbours had called the police because they heard loud cries and the lady, after the arrival of the police was transferred to hospital where she died from her wounds caused by a broken glass about six hours later.
The applicant was arrested by the police at 5.30 a.m. on 18 February 1996 at the home of the victim, in a state of unconsciousness due to his intoxication. The applicant’s leather jacket, golden chain and ring, watch, lighter and wallet were missing.
As soon as he recovered, the applicant was informed that he was being arrested for attempted murder of the lady. He maintained that he did not know the lady and that he could not remember the events of the previous morning or how he was found at the scene of the crime. He also requested to undergo a blood test to verify the level of alcohol in his blood, but the police refused to do so until eighteen hours following the arrest.
At the police station, the applicant was not allowed to meet with his lawyer and the police put pressure on him to confess. As he refused to do so, he was beaten, taken to a special room and handcuffed, beaten on the soles of his feet and the wrists and on other parts of his body and the police threw urine over his body. During the interrogation, the police swore at him and his country. The applicant was kept at the police station for four days where at night he was taken to a special cell. He was tied up all night half naked, without any blankets (even though it was winter) or food and was not allowed to go to the toilet. At times the police opened the cell and they spat at him and cold water was thrown over him.
On 19 February 1996, at about 11.00 a.m. the applicant was transferred to the Public Prosecutor’s office. Allegedly, the police took no steps to ensure his safety and this gave the opportunity to a relative of the victim to strike the applicant on the head and other parts of his body. On 22 February the applicant was sent to the Transfer Center of Pireus, where he was detained in a room with no beds or blankets, full of rubbish and with no toilets or heating facilities.
On 24 February 1996 the applicant was transferred to the prison of Ioannina. For the first two weeks the applicant was locked in a corridor as there was no space in any of the cells in the prison. There was neither heating nor access to a toilet or a shower. Then the applicant was transferred to an overcrowded cell, where many inmates, apparently ill, were left without any medical care. The applicant alleges that one of the inmates was left to die from his illness in that cell since the prison authorities refused to send him to the hospital, although they had been repeatedly invited to do so.
In February 1997, the applicant was transferred to the Korydallos prison, as his trial before the Assize Court of Athens was scheduled in March 1997.
The applicant appointed a lawyer specialising in criminal cases and paid him 2 500 000 drachmas. However, three days before the trial, the applicant maintains that the lawyer suggested to him to pay 5 000 000 drachmas more, of which amount three million would be for the lawyer and two million for the judge ; the plan was for the applicant to plead guilty and the judge to impose a sentence of only twelve years. As the applicant completely disagreed with this method, he changed lawyer.
On 3 March 1997, the proceedings started before the Assize Court of Athens. In view of the recent change of his lawyer, the applicant requested an adjournment of the hearing in order to permit the lawyer to study the case file. However, the Assize Court noted that the new lawyer had assisted the previous one throughout the investigation proceedings and adjourned the hearing until 7 March. On that date, the applicant requested a further adjournment until 11 March, because he had in the meantime appointed a second lawyer who was unable to attend the hearing on 7 March due to another professional obligation. The Assize Court granted the request and also ordered the Criminal Department of the Police to submit its report on the finger prints which was missing from the case file. Furthermore, the Assize Court decided to summon the coroner who examined the body of the victim.
During the hearing, the applicant complained that certain vital evidential elements had not been provided to the Public prosecutor’s office or to him. Namely, the coroner’s report which showed that the victim had died from a wound that was caused by a stable hand. Counsel for the defence also complained that the evidence file did not contain the report on the finger prints found on the glass by which the old lady was wounded and that this report had been hidden. The Public Prosecutor proposed to call as witnesses the man who heard the screams of the victim and the Chief Inspector of the police station of the place in which the robbery was perpetrated. However, the Assize Court refused to hear them on the ground that their testimony could not add any elements to the facts as they had already been established.
Counsel for the defence pleaded the acquittal of the applicant for lack of evidence. He stressed that, although the wounds of the lady had been caused by a broken glass, there were no excoriation on the hands of the applicant and his shirt bore only a few blood stains of the victim. In addition, a sum of money belonging to the victim was missing and not found on the applicant.
On 17 March 1997 the Assize Court, by five votes to two, found the applicant guilty of intentional homicide and sentenced him to fifteen years imprisonment. The minority did not contest that it was the applicant who committed the homicide but concluded to the absence of criminal responsibility owing to his state of drunkenness. The applicant appealed before the Assize Court of Appeal against this judgment.
The applicant maintains that following the conclusion of the trial, he ascertained that one of the judges of the Assize Court was a close relative of one of the prosecution witnesses. He also maintains that during his detention he had very little support in his effort to obtain his law books in order to finish his studies and that he was not allowed to attend the exams despite being legally entitled to do so. Furthermore, the Minister of Justice, in an interview he gave on the television in March 1998, stated that the applicant being a criminal should not be allowed to be a student.
On 20 May 1998, the Assize Court of Appeal quashed the judgment of the Assize Court for lack of evidence. The Court of Appeal stressed that the finger prints found on the broken glass by which the lethal blows were carried did not belong to the applicant and the damages to the apartment of the victim could not have been caused by a single person in such a short time. However, the Court of Appeal refused to grant the applicant any compensation for his detention and imprisonment. It held that the applicant had been detained and convicted for a “very immoral and dishonest offence” on the basis of evidence that he had actually committed the offence ; consequently, his detention and conviction were not attributable to a breach of law on the part of the judges and the jury who had pronounced them (articles 533 § 2, 535 and 536 of the Code of Criminal Procedure). The Public Prosecutor had invited the Court not to grant such a compensation and the applicant’s lawyers, as well as the applicant himself, had stated that they were leaving it to the Court to decide on that issue.
On 22 May 1998 the applicant returned to Cyprus. In the meantime, his grandfather to whom he was very close had died on 23 December 1997 and the applicant had not been allowed to attend the funeral. His mother’s condition, who was ill, deteriorated because of the events that took place in relation to the applicant and she died on 5 October 1998.
B. Relevant domestic law
The relevant provisions of the Code of Criminal Procedure read as follows:
Article 533 § 2
"Persons who have been detained on remand and subsequently acquitted ... shall be entitled to request compensation ... if it has been established in the proceedings that they did not commit the criminal offence for which they were detained ..."
Article 535 § 1
"The State shall have no obligation to compensate a person who ... has been detained on remand if, whether intentionally or by gross negligence, he was responsible for his own detention."
Article 536
"1. Upon an oral application by a person who has been acquitted, the court which heard the case shall rule on the State’s obligation to pay compensation in a separate decision delivered at the same time as the verdict. However, the court may also make such a ruling proprio motu ...
2. The ruling on the State’s obligation to pay compensation cannot be challenged separately; it shall, however, be quashed if the decision on the principal issue of the criminal trial is reversed."
Article 537
"1. A person who has suffered loss may seek compensation at a later stage from the same court.
2. In those circumstances the application must be submitted to the prosecutor [Epitropos] at that court no later than forty-eight hours after the delivery of the judgment in open court."
Article 539 § 1
"Where it has been decided that the State must pay compensation, the person entitled thereto may bring his claim in the civil courts, which shall not call in question the existence of the State’s obligation."
Article 540 § 1
"Persons who have been unfairly ... detained on remand must be compensated for any pecuniary loss they have suffered as a result of their ... detention. They must also be compensated for non-pecuniary loss ..."
Article 543
“The provisions of Articles 533-542 are applicable to foreigners, if a similar right to compensation is recognised in their country to the Greek nationals ...”


ITEMID: 001-73044
LANGUAGEISOCODE: ENG
RESPONDENT: DEU
BRANCH: ADMISSIBILITY
DATE: 2006
DOCNAME: ZABAWSKA v. GERMANY
IMPORTANCE: 4
CONCLUSION: Inadmissible
TEXT: The applicant, Mrs Barbara Zabawska, is a Polish national who was born in 1949 and lives in Piła.
The applicant is the mother of a child born out of wedlock in 1989. The child’s father is married to another woman and lives with her and their two children in Germany near Hamburg.
On 24 September 1991 the Piła District Court (sąd rejonowy) ordered the child’s father to pay maintenance in an amount of 1,000,000 old Polish zlotys (PLZ) corresponding to approximately 65 German marks (DEM) at the exchange rate prevailing at the material time. Thereafter the applicant applied to the Lauenburg District Court (Amtsgericht) for an increase in the child maintenance. On 1 February 1993 the applicant and the child’s father concluded a settlement before the District Court according to which the father agreed to pay a further monthly maintenance sum of DEM 35 in addition to the sum fixed by the Polish court. Apparently the father initially paid the total maintenance sum of DEM 100 on a regular basis.
On 5 September 1995 the Federal Administration Office (Bundesverwaltungsamt), designated in Germany as Receiving Agency pursuant to the United Nations Convention on the Recovery Abroad of Maintenance, received a letter from the applicant dated 25 June 1995 containing a request for an increase in the monthly maintenance payments. On 24 May 1996 she reduced her initial claim to DEM 250.
Pursuant to the Convention on the Recovery Abroad of Maintenance, the Poznan District Court, as the competent Transferring Agency on the Polish side, was informed by the Federal Administration Office of this request. On 14 December 1995, after having investigated the father’s last known place of residence, the Federal Administration Office contacted the child’s father and requested him to disclose his financial situation.
On 18 January 1996 the child’s father, represented by a lawyer, drew the attention of the Federal Administration Office to the settlement reached on 1 February 1993. On 29 January 1996 he submitted information concerning his ability to pay. On 30 April 1996 the Federal Administration Office informed the Poznan District Court of the state of the proceedings.
On 24 June 1996 the applicant informed the Federal Administration Office that she was currently receiving monthly maintenance payments for her son from a relative of the child’s father in an amount of 160 Polish zlotys (PLN) corresponding at the material time to DEM 85.
At the beginning of October 1996 the competent employment office informed the Federal Administration Office that the child’s father had been unemployed for a certain time and some months later that he was unemployed since the end of December 1996.
Having received no further information on his financial situation from the child’s father despite several reminders, namely of 9 July 1996, 18 July 1997 and 30 March 1998, the Federal Administration Office brought an action against him on behalf of the child before the Schwarzenbek District Court (Amtsgericht).
On 29 May 1998 the District Court received the child’s maintenance claim together with a request for legal aid. After an extension of the time-limit, observations of the child’s father on the child’s maintenance claim were received by the District Court in August 1998. In reply to a request of the District Court of 18 August 1998, the Federal Administrative Office set the child support, as requested by the applicant, at the amount of DEM 250 per month. On 26 January 1999 the District Court granted the applicant’s son legal aid. The Poznan District Court was informed about the proceedings.
On 7 July 1999 a hearing was held before the Schwarzenbek District Court. The child and the Federal Administration Office were represented by Youth Office of the Duchy of Lauenburg. The District Court had regard to the fact that the child’s father had been again unemployed since January 1999 and, with the consent of both parties, ordered the stay of the proceedings. Following the hearing, the Federal Administration Office informed the Poznan District Court of this decision.
On 11 November 1999 and 25 January 2000 the competent employment office informed the Federal Administration Office that the child’s father was still unemployed.
In a letter to the Federal Administration Office of 28 January 2000 the applicant stated that the child’s father was the owner of a house and several cars in Poland. The Federal Administration Office forwarded this letter to the Poznan District Court and recommended an investigation into this matter by the Polish authorities, since for the time being there was no possibility under German law to obtain an increase in maintenance payments.
By a default judgment of 13 February 2002 the Piła District Court ordered the child’s father to pay monthly maintenance in an amount of PLN 550 (approximately 125 euros). On 11 March 2002 the Poznan District Court communicated to the Federal Administration Office a letter of the applicant dated 20 February 2002 in which she had confirmed that the amount of the child allowance had been increased and paid on a regular basis and that there were no arrears.
The Convention on the Recovery Abroad of Maintenance was adopted and opened for signature on 20 June 1956 by the United Nations Conference on Maintenance Obligations. The Convention came into force on 25 May 1957 and was ratified by Germany and Poland. As an agreement on legal assistance which concerns merely the receipt and the transmission of maintenance claims, it complements the existing legal remedies existing under domestic or international law. Pursuant to the Convention, the Receiving Agencies of maintenance claims designated by the Contracting Parties shall take on behalf of the claimant all appropriate steps fort he recovery of maintenance.
The relevant provisions of the Convention read as follows:
“1. The purpose of this Convention is to facilitate the recovery of maintenance to which a person, hereinafter referred to as claimant, who is in the territory of one of the Contracting Parties, claims to be entitled from another person, hereinafter referred to as the respondent, who is subject to the jurisdiction of another Contracting Party. This purpose shall be effected through the offices of agencies, which will hereinafter be referred to as Transmitting and Receiving Agencies.
2. The remedies provided for in this Convention are in addition to, and not in substitution for, any remedies available under municipal or international law.”
“1. Each Contracting Party shall, at the time when the instrument of ratification or accession is deposited, designate one or more judicial or administrative authorities, which shall act in its territory as Transmitting Agencies.
2. Each Contracting Party shall, at the time when the instrument of ratification or accession is deposited, designate a public or private body, which shall act in its territory as Receiving Agencies.”
“Where a claimant is on the territory of one Contracting Party, hereinafter referred to as the State of the claimant, and the respondent is subject to the jurisdiction of another Contracting Party, hereinafter referred to as the State of the respondent, the claimant may make application to a Transmitting Agency in the State of the claimant for the recovery of maintenance from the respondent.”
“The Transmitting Agency shall transmit the documents to the Receiving Agency of the State of the respondent, unless satisfied that the application is not made in good faith.”
“The Transmitting Agency shall, at the request of the claimant, transmit, under the provision of Article 4, any order, final or provisional, and any other judicial act, obtained by the claimant for the payment of maintenance in the competent tribunal of any Contracting Party, and, where necessary and possible, the record of the proceedings in which such order was made.”
“1. The Receiving Agency shall, subject always to the authority given by the claimant, take on behalf of the claimant, all appropriate steps for the recovery of maintenance, including the settlement of the claim and, where necessary, the institution and prosecution of an action for maintenance and the execution of any order or other judicial act for the payment of maintenance.
2. The Receiving Agency shall keep the Transmitting Agency currently informed. If it is unable to act, it shall inform the Transmitting Agency of its reason and return the documents.
3. Notwithstanding anything in this Convention, the law applicable in the determination of the questions arising in such action or proceedings shall be the law of the State of the respondent, including its private international law.”


ITEMID: 001-67457
LANGUAGEISOCODE: ENG
RESPONDENT: FIN
BRANCH: CHAMBER
DATE: 2004
DOCNAME: CASE OF KARHUVAARA AND ILTALEHTI v. FINLAND
IMPORTANCE: 1
CONCLUSION: Violation of Art. 10;Pecuniary damage - financial award;Non-pecuniary damage - finding of violation sufficient;Costs and expenses partial award - domestic proceedings;Costs and expenses partial award - Convention proceedings
JUDGES: Nicolas Bratza
TEXT: 7. The first applicant was born in 1954 and lives in Helsinki, Finland. The second applicant (“the applicant company”) is a limited liability company based in Helsinki.
8. The applicant company publishes a newspaper called Iltalehti which has a circulation of approximately 120,000. On 31 October 1996 it published an article on a criminal trial concerning the drunken and disorderly behaviour, including an assault on a police officer, of Mr A., a lawyer practising in Seinäjoki. The article bore the title “His wife [is] the chairperson of the parliamentary Committee for Education and Culture – Lawyer from Seinäjoki hits policeman in restaurant” (“Vaimo eduskunnan sivistysvaliokunnan puheenjohtaja – Seinäjokelainen asianajaja iski poliisia ravintolassa”).
Follow-up articles were published on 21 November and 10 December 1996 concerning the verdict whereby the defendant was convicted and sentenced to six months’ suspended imprisonment. It was reported that the defendant was the husband of Mrs A., a member of the Finnish parliament and the chairperson of its Committee for Education and Culture. The headline on 21 November read “... Husband of member of parliament hits policeman in restaurant” (“... Kansanedustajan aviomies löi poliisia ravintolassa”). The heading on 10 December 1996 read “... Husband of member of parliament receives harsh sentence for violence in restaurant” (“... Kansanedustajan miehelle kova tuomio ravintolassa riehumisesta”).
9. The trial of Mr A. had been widely publicised and discussed locally, and the role of Mrs A. – who was in no way involved in the criminal proceedings – had become the subject of, inter alia, political satire in a programme (“Iltalypsy”) broadcast on the main national television channel.
10. In April 1997 Mrs A., who did not dispute the facts as presented by Iltalehti, instituted proceedings against the applicants and two of the journalists involved on the grounds that the reporting by Iltalehti had been libellous and had invaded her privacy. She requested that the respondents be punished for invasion of privacy and defamation, and claimed compensation for non-pecuniary damage caused by the articles. Moreover, she relied on section 15 of the Parliament Act then in force (valtiopäiväjärjestys, riksdagsordningen) which stipulated that members of parliament as well as parliamentary officials were to enjoy special protection in the performance of their duties and for the duration of parliamentary sessions. Criminal offences, in the form of words or physical acts, that violated the rights of members of parliament or officials while Parliament was in session, or subsequent physical violence, were to be regarded as being committed in particularly aggravating circumstances. According to Mrs A., this provision was applicable both in relation to the criminal charges and in determining the amount of damages in her case. She argued that the articles had caused her particular suffering as she had been publicly associated with a criminal act that was in no way connected to her person or function as member of parliament.
11. As editor-in-chief of Iltalehti the first applicant, Mr Karhuvaara, admitted to being superficially aware of the type of material published but denied any detailed prior knowledge of the specific material in question. According to section 32 of the Freedom of the Press Act then in force (painovapauslaki, tryckfrihetslag; 1/1919, replaced by Act no. 460/2003 in 2004), an editor-in-chief was ultimately responsible for any original material published in his newspaper or periodical, regardless of whether he had in fact been aware of its contents. The defendants also argued that they had only mentioned in their articles that Mrs A. was married to Mr A., a fact which was not denied by Mrs A. She had not been otherwise mentioned in the articles. Moreover, the case had already been reported locally and their article contained no new information as such. They also argued that a member of parliament, as a public political figure, must tolerate more from the media than an “average citizen” and that it was particularly disturbing that a member of parliament was trying to limit the defendants’ freedom of expression.
12. On 27 March 1998 the Vantaa District Court (käräjäoikeus, tingsrätten) convicted the first applicant and the two other journalists on one count of invasion of privacy under particularly aggravating circumstances within the meaning of section 15 of the Parliament Act. The first applicant was ordered to pay eighty day-fines, amounting to 47,360 Finnish markkas (FIM) (approximately 7,965 euros (EUR)). The two other journalists were both ordered to pay fines amounting to approximately EUR 840. In addition, all the defendants, including both applicants, were ordered to pay damages as requested by the plaintiff (jointly and severally with a co-defendant, FIM 75,000 with interest from 31 October 1996, and jointly and severally with another co-defendant, FIM 100,000 with interest on FIM 50,000 from 21 November 1996 and with interest on FIM 50,000 from 10 December 1996), namely,. a total of FIM 175,000 (approximately EUR 29,400). All the defendants were ordered to reimburse Mrs A. jointly and severally in respect of her legal expenses of FIM 72,109 (EUR 12,128) with interest from 27 April 1998. The defamation charges were dropped.
13. The District Court found that, as a whole, the banner headlines, the front pages and the articles themselves were published with the purpose of drawing the readers’ attention principally to Mr A.’s marital relationship with Mrs A. and not with the purpose of depicting the events as such. It further found that the highlighted publication of Mrs A.’s name, picture and professional status was in no way necessary in order to report on the criminal trial of Mr A. It acknowledged that the protection of the private life of Mrs A., as a member of parliament, was narrower than that of other persons, but only in so far as the matters in question were connected to her public functions and there was a public interest justifying their publication. The fact that the conviction of the spouse of a politician could affect people’s voting intentions did not in itself render the matter of public interest such as to justify the publication.
The District Court held that the fact that the actions of the plaintiff’s husband and the criminal proceedings against him had been well known in their home district and the fact that the local newspapers had been reporting the matter had no bearing on the defendants’ liability. According to the judgment, it was the nationwide publicity accorded by Iltalehti and the resultant infringement of the plaintiff’s protected private domain that had essentially constituted the criminal offence in question.
It further held that, although the reasons underlying section 15 of the Parliament Act could be regarded as outdated, it was a mandatory provision, leading to conviction for an offence categorised as aggravated.
As to the determination of the amount of compensation for suffering, the District Court noted that the plaintiff herself, especially as she was also a doctor and thus an expert, was best placed to assess her own situation and the damage she had sustained.
14. On 3 December 1998 the Helsinki Court of Appeal (hovioikeus, hovrätten) dismissed the joint appeal of the defendants and upheld the District Court’s judgment without any observations on the merits of the case, save for a minor correction of the lower court’s statement as to the alleged unlawful benefit accruing to the publishers. The Court of Appeal added that regardless of this correction the damages awarded to the plaintiff were not to be considered excessive.
15. On 25 May 1999 the Supreme Court (korkein oikeus, högsta domstolen) refused the defendants leave to appeal.
16. Section 8(1) (969/1995) of the 1919 Constitution (Suomen hallitusmuoto, regeringsformen för Finland), as in force at the relevant time, stipulated that the private life, honour and home of every person was to be protected. This provision corresponds to section 10 of the 2000 Constitution (perustuslaki, grundlagen; Act no. 731/1999), which came into force on 1 March 2000.
17. Section 10(1) (969/1995) of the 1919 Constitution, as in force at the relevant time, afforded everyone the right to freedom of expression. Freedom of expression entailed the right to express, disseminate and receive information, opinions and other communications without prior prevention by anyone. This provision corresponds to Article 12 of the 2000 Constitution.
18. Section 15(1) of the Parliament Act (valtiopäiväjärjestys, riksdagsordningen), as in force at the relevant time, read as follows:
“If a person, either in the course of a parliamentary session or while a member of parliament is travelling to or from Parliament, abuses the said member of parliament by any word or deed, knowing that the person so abused is a member of parliament, or if a person assaults a member of parliament after a parliamentary session because of the manner in which he or she has carried out his or her duties, the fact that the victim of the offence was a member of parliament shall be deemed to be a seriously aggravating circumstance.”
This provision was later repealed by the 2000 Constitution (section 131).
19. Chapter 27 (908/1974), section 3a, of the Penal Code (rikoslaki, strafflagen), as in force at the relevant time, read as follows:
“A person who unlawfully, through the use of the mass media or in another similar manner, publicly spreads information, an insinuation or an image depicting the private life of another person, such as to cause him or her damage or suffering, shall be convicted of invasion of privacy and sentenced to a maximum term of imprisonment of two years or to a fine. A publication that deals with a person’s behaviour in a public office or function, in professional life, in a political activity or in another comparable activity, shall not be considered an invasion of privacy if the reporting was necessary for the purpose of dealing with a matter of importance to society.”
20. According to the Government, persons in respect of whom the protection of private life is narrower in scope include public officials, politicians and persons with important positions in the business world (government bill, HE 239/1997, p. 32).
21. Chapter 27, section 3a, of the Penal Code was repealed in 2000 by section 8 of Chapter 24 (531/2000), which reads as follows:
“Dissemination of information violating private life: A person who unlawfully (1) through the use of the mass media, or (2) in another manner publicly spreads information, an insinuation or an image of the private life of another person, such that the act is likely to cause that person damage or suffering, or subject that person to contempt, shall be convicted of damaging personal reputation and sentenced to a fine or a maximum term of two years’ imprisonment.
The spreading of information, an insinuation or an image of the private life of a person in politics, business, public office or a public position, or in a comparable position, shall not constitute damage to personal reputation, if it may affect the evaluation of that person’s activities in the position in question and if it is necessary for the purposes of dealing with a matter of importance to society.”
22. According to a report by the parliament’s Law Committee (lakivaliokunta, lagutskottet), functions in respect of which the protection of private life is, under paragraph 2, narrower in scope, include political functions, business functions, and public functions or duties. Information on the private life of persons having such functions may be disclosed where the information may affect the assessment of the performance of their duties. Furthermore, the person’s consent to the disclosure of the information is relevant to the assessment of the lawfulness of the interference. Without explicit consent, there is usually no reason to believe that the person in question would have consented to the publication of information relating to their private life (see the report of the Law Committee, pp. 4-6).
23. According to section 39 (909/1974) of the 1919 Freedom of the Press Act (as in force at the relevant time), the Tort Liability Act was to be applied to the payment of compensation for damage resulting from the content of printed works.
24. Under the terms of Chapter 5, section 6, of the Tort Liability Act (vahingonkorvauslaki, skadeståndslagen; 412/1974), damages may also be awarded for the distress arising from an offence against someone’s liberty, honour or domestic peace or from another comparable offence.
According to the government bill to amend the Tort Liability Act (HE 116/1998), the maximum amount of compensation for pain and suffering from, inter alia, bodily injuries had in the recent past been approximately FIM 100,000 (EUR 16,819). In the subsequent government bill to amend the Tort Liability Act (HE 167/2003, p. 60), it is stated that no changes to the prevailing level of compensation for suffering are proposed.
25. Chapter 17, section 6 (571/1948), of the Code of Judicial Procedure (oikeudenkäymiskaari, rättegångsbalken) provides that if the issue relates to the quantum of damages and no evidence is available, or if evidence can only be presented with difficulty, the court shall have the power to assess the quantum having regard to what is reasonable.
26. On 11 June 1997 the Supreme Court delivered two judgments relating to articles which had given information on cases of arson. The first judgment (KKO 1997:80) concerned a newspaper article (summary from the Supreme Court’s Yearbook):
“A newspaper published an article concerning cases of arson, in which it was said that the suspect was the wife of the head of a local fire department. As it was not even alleged that the head of the fire department had any role in the events, there was no justifiable reason for publishing the information on the marriage between him and the suspect. The publisher, the editor-in-chief and the journalist who wrote the article were ordered to pay compensation for the suffering caused by the violation of the right to respect for private life.”
27. The other judgment (KKO 1997:81) concerned an article published in a periodical, which was based on the aforementioned newspaper article (see paragraph 26 above) and on the records of the pre-trial investigation and the court proceedings, but did not indicate that the newspaper article had been used as a source (summary from the Yearbook):
“Compensation was ordered to be paid for the reason that the article violated the right to respect for private life. Another issue at stake in the precedent was the relevance to liability for damages and the amount of compensation of the fact that the information had been reported in another publication at an earlier stage.”
The article published in the periodical had also mentioned the name and profession of the head of the fire department, although the offence was not related to the performance of his duties. Thus, it had not been necessary to refer to his position as head of the fire department or to his marriage to the suspect in order to give an account of the offence.
The Supreme Court considered that the fact that the information had previously been published in print did not relieve the defendants of their responsibility to ensure, before publishing the information again, that the article did not contain information insulting the persons mentioned in it. The mere fact that the interview with the head of the fire department had been published in the newspaper did not justify the conclusion that he had also consented to its publication in the periodical.
The Supreme Court further found that repeating a violation did not necessarily cause the same amount of damage and suffering as the initial violation. The readers of the newspaper and the periodical were partly different, and the circulation of the newspaper apparently did not entirely coincide with that of the periodical. Therefore, and considering the differences in the content and tone of the articles, the Supreme Court found it established that the article published in the periodical was conducive to causing the head of the fire department additional mental suffering.
The publisher and its partners were ordered jointly to pay FIM 100,000 (EUR 16,819) plus interest for the mental suffering caused to the head of the fire department.
According to the Supreme Court, the events reported in the article did not concern the plaintiff’s conduct in the performance of his duties as head of the fire department and it had not been necessary to mention the complainant’s name and profession for the purpose of discussing a matter involving significant public interest. It had not been necessary to refer to the complainant’s profession in order to report on the offences. By associating the complainant’s name and profession with the offences in question, the article had unlawfully spread information and insinuations concerning his private life likely to cause him damage and suffering. The disclosure of the complainant’s name and the emphasis on his occupation had amounted to an insult. By again reporting on the matter two months after the events had occurred, the periodical was found to have caused the complainant additional suffering for which separate compensation was to be paid.
28. In another judgment (KKO 1980 II 123), the Supreme Court held as follows (summary from the Yearbook):
“The accused had picked up a photograph of the plaintiff from the archives of a newspaper and published it in the context of an electoral campaign without the plaintiff’s consent. He was convicted of a violation of private life and ordered, jointly with the political organisations which had acted as publishers, to pay damages for mental suffering.”
VIOLATED_ARTICLES: 10