ITEMID: 001-93044
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: ADMISSIBILITY
DATE: 2009
DOCNAME: BRAILOVA v. RUSSIA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Anatoly Kovler;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;Khanlar Hajiyev;Sverre Erik Jebens
TEXT: The applicant, Ms Galina Yevgenyevna Brailova, is a Russian national who was born in 1936 and lives in the town of Temryuk, Krasnodar Region.
The respondent Government were represented by Mr P. Laptev, the then Representative of the Russian Federation at the European Court of Human Rights.
The facts of the case, as submitted by the parties, may be summarised as follows.
On 29 April 1996 the applicant’s neighbour (the plaintiff) lodged a claim with a court, seeking partition of the plot of land on which their respective houses were situated. On 3 June 1996 the Temryukskiy District Court of the Krasnodar Region granted the plaintiff’s claim. On 6 August 1996 the Krasnodar Regional Court upheld the judgment.
On 17 December 1997 the Presidium of the Regional Court on the applicant’s request quashed the above judgments by way of supervisory review and remitted the case for fresh consideration.
On 20 April 1998 the District Court commissioned an expert report and requested the plaintiff to pay for it.
On 6 January 2000 the court discontinued the proceedings because of the plaintiff’s failure to pay for the expert report. This decision was not appealed against and became final.
In the meantime, the applicant complained about the length of the proceedings. By letters of 23 December 1999 and 20 March 2000, the President of the Regional Court instructed the President of the District Court to make inquiries and to speed up the proceedings. In reply, by a letter of 30 March 2000, the President of the District Court informed that the case had been discontinued on 6 January 2000 and that the applicant had been informed accordingly. A copy of the letter of 30 March 2000 was sent to the applicant.
According to the Government, on 4 July 2002 the plaintiff brought new proceedings against the applicant in the District Court. The plaintiff sought a delimitation of their respective plots of land. On the same date, the District Court declined jurisdiction in favour of a justice of the peace.
On 28 August 2002 the applicant lodged a counterclaim requesting the court to order the plaintiff not to impede her use of the land. The District Court declined jurisdiction in respect of the counterclaim in favour of a justice of the peace.
Both cases were joined and a hearing was scheduled for 9 September 2002. On that date the justice of the peace declined, however, jurisdiction in favour of the District Court.
On 23 September 2002 the District Court scheduled a hearing for 8 October 2002. The hearing was adjourned until 14 October 2002 because the applicant failed to attend. Between October 2002 and 6 February 2003 the proceedings were suspended awaiting an expert report. On 10 February 2003 the judge requested a State agency to provide information on the land plots in question. On 17 March 2003 the judge granted the applicant’s request and ordered another expert report.
On 25 April 2003 the expert requested further details about the case and asked for payment. On 7 May 2003 the judge forwarded this request to the parties. On 6 June 2003 the judge resumed the proceedings. On 16 June 2003 the judge adjourned the proceedings in view of the applicant’s wish to retain counsel. On 21 June 2003 the judge granted the applicant’s additional request and ordered another expert report. However, on 21 July 2003 the applicant withdrew her request.
By a judgment of 21 August 2003 the District Court granted the plaintiff’s claims. On 18 September 2003 the Regional Court set aside this judgment and required a new hearing.
On 4 November 2003 the District Court, having obtained the parties’ consent, ordered yet another expert report. On 10 December 2003 the expert refused to issue the report, referring to the applicant’s alleged repeated challenges to different experts and attempts to influence them.
On the District Court’s insistence, on 20 April 2004 the expert issued the report. On 26 May 2004 the District Court granted the plaintiff’s claims. On 20 July 2004 the Regional Court upheld the judgment.
The applicant also brought separate proceedings against the bailiff service in relation to the judgment of 26 May 2004. She claimed that it contained wrong findings and that the bailiff had wrongly set the delimitation border between the respective plots of land. By the final judgment of 7 April 2005 the Regional Court rejected her claims as unfounded.


ITEMID: 001-90238
LANGUAGEISOCODE: ENG
RESPONDENT: SVN
BRANCH: ADMISSIBILITY
DATE: 2008
DOCNAME: PIRKMAJER v. SLOVENIA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Alvina Gyulumyan;Elisabet Fura;Ineta Ziemele;Josep Casadevall;Luis López Guerra
TEXT: The applicant, Mr Edo Pirkmajer, is a Slovenian national, who was born in 1932 and lives in Ljubljana. He was represented before the Court by Mr D. Demšar, a lawyer practising in Ljubljana.
The applicant’s late father was a member of the Regional Council (Pokrajinski sosvet) of the then Ljubljana Province during the Second World War, appointed by the Italian government during its occupation of Slovenia.
In 1944 the applicant’s father left Slovenia, but his family stayed there. From March 1944 he was based in Switzerland.
On 4 July 1945 the Court of National Honour (Sodišče slovenske narodne časti – “the CNH”) of the People’s Republic of Slovenia (Ljudska republika Slovenija) sentenced the applicant’s father in absentia on the basis of the Act on the Punishment for Crimes and Offences against Slovenian National Honour (Zakon o kaznovanju zločinov in prestopkov zoper slovensko narodno čast, enacted on 5 June 1945, Official Gazette of the Slovenian National Liberation Council and the National Government of Slovenia no. 7/45 – “the ASNH”) to “loss of national honour for ten years, to light forced labour for five years and to the confiscation of 75% of all of his property” on account of his “intentional political cooperation with the fascist occupier” and the corresponding “prejudice to the good reputation and honour of the Slovenian nation and its resistance”.
On 4 January 1975 the applicant’s father died.
On 25 June 1991 Slovenia became independent.
On 23 December 1991 the Constitution of the Republic of Slovenia (“the Constitution”) entered into force.
On 28 June 1994 the Convention and on 1 September 1994 Protocol No. 7 to the Convention entered into force in respect of Slovenia.
On 27 December 1996, relying on section 559 of the Criminal Procedure Act, the applicant lodged a request for the protection of legality (zahteva za varstvo zakonitosti) with the Supreme Court (Vrhovno sodišče) against the CNH’s judgment of 4 July 1945. The applicant requested that the judgment be quashed and the case be remitted to the first-instance court for re-examination owing to the violation of the applicant’s father’s defence rights.
On 5 December 2000 the applicant amended his request, arguing that his father had not acted against the interests of the nation. He attached copies of two documents which he claimed that his father would have submitted in his defence had he had an opportunity to attend the trial.
The Supreme Court later joined the proceedings in the applicant’s case to the proceedings instituted by T.B. and S.B., successors of J.B., who had also been sentenced in the CNH’s judgment of 4 July 1945.
On 25 January 2001 the Supreme Court dismissed the applicant’s request and partly upheld T.B.’s and S.B’s request, with effect also for the applicant. By virtue of its decision, the Supreme Court quashed the penalty of confiscation of 75% of all of the applicant’s father’s property, owing to the lack of reasoning on that point. As to the applicant’s fresh submissions of 5 December 2000, the Supreme Court found that they had been lodged out of time. As to the complaint concerning the trial in absentia, the Supreme Court held that it was not competent to deal with questions of fact and as a result could not consider the question whether the applicant’s father had in fact been a fugitive. It added that the trial in absentia of his father would in any event have also been justified on the other grounds referred to in the ASNH, namely that he had been “unavailable”.
Referring to the Constitutional Court’s (Ustavno sodišče) decision of 30 September 1998 (see “Relevant domestic law” below), the Supreme Court furthermore found that the ASNH did not have an unlawful retroactive effect. In the applicant’s father’s case, his conviction was based on sufficiently established facts, namely his membership of the Regional Council and certain specific acts of political collaboration with the occupier. The relevant provision of the ASNH, which represented the basis for his conviction, was therefore not a lex incerta and had not been applied arbitrarily.
On 26 June 2001 the applicant lodged a constitutional appeal with the Constitutional Court.
On 18 March 2003 the Constitutional Court found that it could only deal with the alleged violations relating to the Supreme Court’s judgment and that it had no jurisdiction to consider the complaints concerning the trial in 1945 since it had taken place before the Constitution had entered into force. As to the issue of lex certa, it referred to its previous decisions providing criteria for assessing laws enacted prior to the entry into force of the Constitution (see “Relevant domestic law” below). It found that the Supreme Court, applying the above-mentioned criteria, had sufficiently and convincingly explained its decision. It concluded that the applicant’s complaints were manifestly ill-founded.
On 24 March 2003 the Constitutional Court’s decision was served on the applicant.
On 1 April 1994 the Constitutional Court (U-I-6/93) decided that the courts in Slovenia should not rely on the provisions of the Decree on Military Tribunals of 24 May 1944, which had established the jurisdiction of military courts at the material time, if they had been used, inter alia, to incriminate persons purely on the ground of their status and had not had regard to the particular acts of the accused. In the same decision the Constitutional Court requested Parliament to ensure that extraordinary remedies would be available in order to annul any unjust decisions delivered on the basis of legislation passed by the wartime and post-war revolutionary government.
On 19 September 1994 the Criminal Procedure Act (Zakon o kazenskem postopku, Official Gazette no. 63/94) was passed. It came into force on 1 January 1995.
Section 559 of the Criminal Procedure Act provides for the possibility to lodge a request for the protection of legality against decisions which had become final before the date of its entry into force. It states, in so far as relevant:
“... the convicted person and persons referred to in subsection 2 of section 367 of the present Act [among others also children of convicted persons] shall be entitled, within two years of the entry into force of the present Act, to lodge a request for the protection of legality against a judicial decision which became final before the entry into force of the present Act and against proceedings conducted before such final and binding decision was adopted.”
Section 420 of the Criminal Procedure Act lays down the conditions under which a request for the protection of legality can be lodged:
“(1) A request for the protection of legality against a final judicial decision and the judicial proceedings which preceded that decision may be submitted in the following cases:
1) on the grounds of a violation of criminal law;
2) on the grounds of a fundamental violation of the rules of criminal procedure referred to in the first subsection of section 371 of the present Act [listing such procedural violations];
3) on the grounds of other violations of the rules of criminal procedure if such violations affected the lawfulness of a judicial decision.
(2) A request for the protection of legality may not be lodged on the grounds of an erroneous or insufficient establishment of facts, or against a decision of the Supreme Court ...”
Furthermore, section 425 of the Criminal Procedure Act provides:
“The Supreme Court shall by a judgment dismiss a request for the protection of legality as unfounded, if it establishes that the violation of the law alleged by the requesting party has not been committed or that the request for the protection of legality has been lodged on the grounds of an erroneous or insufficient establishment of facts.”
Lastly, section 426 provides for the various decisions which may be adopted by the Supreme Court in well-founded cases:
“(1) If the Supreme Court finds that a request for the protection of legality is well-founded it shall pass a judgment by which, depending on the nature of the violation, it shall: modify a final and binding decision; or annul in whole or in part the decision of both the court of first instance and the higher court or the decision of the higher court only, and remit the case to the court of first instance or the higher court for a fresh decision or re-examination; or it shall confine itself to establishing a breach of the law.
...”
On 30 September 1998 the Constitutional Court, in decision no. U-I-248/96, considered the provisions of the ASNH. It found:
“[t]he provisions of the Act on the Punishment for Crimes and Offences against Slovenian National Honour ... were in contradiction with the general principles of law recognised at the material time by civilised nations, in so far as they represented, because of their uncertainty, a basis for arbitrary use of the [A]ct. In such a case ... their use in the proceedings would be in contradiction with the Constitution.”


ITEMID: 001-58843
LANGUAGEISOCODE: ENG
RESPONDENT: HUN
BRANCH: CHAMBER
DATE: 2000
DOCNAME: CASE OF APEH ULDOZOTTEINEK SZÖVETSEGE AND OTHERS v. HUNGARY
IMPORTANCE: 1
CONCLUSION: Violation of Art. 6-1;Non-pecuniary damage - finding of violation sufficient
JUDGES: Christos Rozakis
TEXT: 8. APEH Üldözötteinek Szövetsége (Alliance of APEH's Persecutees) is an unregistered association with its head office in Budapest. APEH is the commonly used abbreviation for the Hungarian Tax Authority (Adó- és Pénzügyi Ellenőrzési Hivatal – “APEH”).
Mr Iványi, born in 1950 and residing in Nyíregyháza, Hungary, is a manager and a vice-president of the applicant association. Mr Róth, born in 1943 and residing in Budapest, is a lawyer and a vice-president of the applicant association. Mr Szerdahelyi, born in 1943 and residing in Budapest, is a free-lance writer and the president of the applicant association.
9. In May 1993 several private persons, among others Mr Iványi, Mr Róth and Mr Szerdahelyi, founded the applicant association. Its articles of association, dated 28 May 1993, state that the purpose of the association is, in particular, to promote the general interests of Hungarian taxpayers.
10. On 3 June 1993 the President of APEH, having learnt about the founding of the applicant association from the press, complained to the Budapest public prosecutor and the President of the Budapest Regional Court that the choice of name was defamatory for APEH. He requested that particular attention be paid to the proceedings concerning the association's registration and that his office have access to the documents relating to the proceedings. These letters of the President of APEH reached the addressees on 7 June 1993, but were not communicated to the applicants in the subsequent non-contentious proceedings aiming at the applicant association's registration.
11. On 18 June 1993 Mr Szerdahelyi requested the Budapest Regional Court to register the applicant association.
12. On 28 June 1993 the Regional Court returned the request for registration, ordering that APEH's approval for the use of its name be obtained, that the expression “persecutees” in the applicant association's name be altered to a neutral term and that provisions regulating the method of voting within the applicant association's bodies be added to its articles of association.
APEH obtained a copy of this order from the Regional Court before it was served on the applicants and, in a television programme on 9 August 1993, its spokesman presented it.
13. By a letter dated 2 July 1993 the public prosecutor's office intervened in the registration proceedings under Article 2/A § 1 of Law no. 3 of 1952 on the Code of Civil Procedure (“the Code of Civil Procedure”). The Regional Court received this letter on 8 July 1993. The applicants were not notified of this intervention.
14. Following some delays in the service of the order of 28 June 1993, the applicants submitted their reply to the Regional Court on 17 September 1993. They refused to obtain APEH's approval for the use of its name or to alter the impugned expression. Moreover, they stated that the information on the method of voting by the applicant association's bodies was available from their original submissions requesting the registration.
Simultaneously, the applicants challenged the judge in charge of the case, as well as the entire Regional Court, for bias on the ground that, inter alia, they had not been informed about the intervention by the public prosecutor's office in the registration proceedings.
15. On 13 December 1993 the Supreme Court dismissed the applicants' challenge for bias. The Supreme Court found that the Regional Court's procedure had been in compliance with the relevant legal provisions and there was nothing to support the applicants' allegations as to any bias on the part of the Regional Court.
16. On 24 January 1994 the public prosecutor's office proposed to the Regional Court that the applicant association's request for registration be rejected, as the association had not met the requirements in the court order of 28 June 1993. This submission was received by the Regional Court on 25 January and was ordered to be sent to the applicants on 28 January 1994.
17. In their submissions dated 7 January, but filed with the Regional Court only on 8 February 1994, the applicants confirmed that they had meanwhile adopted an amendment to the articles of association, reflecting the Regional Court's requirements as to the voting methods. Moreover, they argued that the requirement that they seek APEH's approval for the use of its name was legally “absurd”.
18. On 10 February 1994 the Regional Court rejected the applicant association's request for registration. It observed that the applicants had not obtained APEH's approval for the use of its name. In this respect, the Regional Court relied on section 7(1) of Law no. 2 of 1989 on freedom of association (“the Associations Act 1989”), according to which the name of an association should not give the impression that the association in question carries on its activities in a manner linked to those of another legal person, unless approved by the latter. Moreover, it held that the expression “persecutees” was defamatory for APEH as a State organ and was contrary to the standards of naming an association, as laid down by the Supreme Court in its Administrative College's Legal Opinion no. 1. Finally, the Regional Court found that the applicant association had only partly met the requirements as to the method of voting by its bodies.
19. The applicants appealed to the Supreme Court. Simultaneously, they complained about the dismissal of their challenge for bias.
20. On 7 July 1994 the Attorney-General's Office intervened in the appeal proceedings and proposed that the Supreme Court uphold the refusal of the request for registration. The applicants did not receive a copy of these submissions.
21. On 2 October 1995 the Supreme Court dismissed the applicant association's appeal. In addition to the reasons given by the Regional Court, it held that the applicant association's name did not correspond to its objectives, namely to reform the Hungarian taxation system, and that it could therefore not be registered under that name. The decision did not deal with the applicants' complaint about the dismissal of their challenge for bias.
The applicants lodged a petition for review by the Supreme Court.
22. On 21 February 1996 the Attorney-General's Office requested that the Supreme Court uphold the second-instance decision.
23. On 14 May 1996 the Supreme Court dismissed the petition for review. The decision was served on the applicants on 20 June 1996.
The review bench of the Supreme Court held that the association's intended name was contrary to Article 77 § 1 of the Civil Code guaranteeing the right to bear a name. It held this provision to imply that a legal person's name should not give the false impression that its activity was linked to that of another legal person, namely, to that of APEH in the instant case. It also found that the unauthorised use of APEH's name contravened Article 77 § 4 of the Civil Code, according to which it was a breach of the right to bear a name if anyone used, without authorisation, a name identical with or similar to another person's name. Moreover, it considered that the expression “persecutees”, used in association with APEH's name, was contrary to Article 78 § 1 of the Civil Code protecting one's good reputation.
Furthermore, the Supreme Court held that any procedural shortcomings committed by the lower courts, in particular those concerning the handling of the submissions of APEH and of the public prosecutor's office, had not influenced the courts' decisions on the merits of the case. It also stated that, throughout the proceedings, the applicants had been in a position to exercise their rights effectively and, in the course of the second-instance and the review proceedings, they could have made any comments which they had not been able to advance previously.
Finally, the Supreme Court pointed out that the applicants' complaint about the dismissal of their challenge for bias could not be examined in review proceedings.
24. Section 1 of the Associations Act 1989 provides that freedom of association is a fundamental freedom for everyone. It guarantees that everyone shall have the right to form, together with other persons, organisations and communities or to participate in the activities of such associations.
Section 2(2) provides that the exercise of the right to freedom of association may not violate the rights and freedoms of others.
Section 2(3) prohibits the founding of associations primarily for economic or business purposes.
According to section 4(1), as in force when the applicant association's request for registration was examined, subsequent to the founding of an association, its registration must be requested before a court. Registration must not be denied unless the founders have failed to comply with the conditions specified in the Act; associations acquire legal capacity through registration.
Section 7(1) provides that the name and the objectives of an association must not create the impression that the activity it carries on is linked to the activity of another legal person, unless consent thereto is given by that legal person.
According to section 15(3), the courts must decide on requests for registration in non-contentious proceedings; such requests must be given priority. The courts' decisions must also be served on the public prosecutor's office.
25. Article 13 § 3 of Government Decree no. 105/1952 (28 December) provides that in non-contentious proceedings the provisions of the Code of Civil Procedure must be applied, mutatis mutandis, unless the legal provisions governing certain non-contentious proceedings provide otherwise or the non-contentious nature of the proceedings excludes that.
26. Article 77 §§ 1 and 4 of Law no. 4 of 1959 on the Civil Code provide that everyone shall have the right to bear a name; it is a violation of this right if anyone unlawfully uses a name identical with or similar to the name of another person.
According to Article 78 §§ 1 and 2, protection of personality rights includes protection of the right to a good reputation; making or disseminating false or defamatory allegations against other persons or portraying real facts in a false way is deemed to be an infringement of the right to a good reputation.
27. Article 2/A § 1 of the Code of Civil Procedure, as in force in the relevant period, provides that, to ensure compliance with the law, the public prosecutor may intervene in civil proceedings at any stage.
According to Article 2/A § 3, when intervening in civil proceedings, the public prosecutor enjoys all the procedural rights which the parties enjoy, save the rights to negotiate settlements, to waive rights or to acknowledge rights.
28. An extract from Supreme Court (Administrative College) Legal Opinion no. 1 reads as follows: “Before a decision is taken on the registration of an association, it must be examined whether the association's choice of name meets the requirements of the exclusivity, genuineness and correctness of names.”
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-107434
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: COMMITTEE
DATE: 2011
DOCNAME: CASE OFAFŞAR v. TURKEY
IMPORTANCE: 4
CONCLUSION: Violation of Art. 6-1
JUDGES: David Thór Björgvinsson;Guido Raimondi;Helen Keller
TEXT: 4. The applicant was born in 1957 and lives in Balıkesir.
5. The applicant is a doctor.
6. On 23 November 1998, another doctor, V.B., brought a case against the applicant before the Ayvalık Civil Court, requesting compensation for defamation. V.B. alleged that the applicant had diffused false information among his patients to the effect that he had been selling a certain unauthorised medicine. V.B. relied on a note obtained from a certain patient A.S., in which the name of the medicine, as well as his name and work address were written. According to the plaintiff, this note was written by the applicant in order to damage his reputation.
7. In the course of the proceedings, the court heard statements from several witnesses such as doctors and nurses working at the health centre, who confirmed V.B.’s account of the facts. In particular, some of the witnesses submitted that they had seen A.S. with this note.
8. At the hearing on 8 June 2000 the applicant admitted having written the name of the medicine on the paper, but denied having written the other notes.
9. It appears from the case file that the applicant did not request the court to hear A.S. during the proceedings.
10. On 4 February 2003 the court, on the basis of the witness testimonies as well as the statements given at the hearing of 8 June 2000, found it established that the applicant had directed the patients towards V.B. and therefore ordered the applicant to pay compensation.
11. On 11 March 2003 the applicant appealed. In his appeal petition, the applicant submitted inter alia that the trial court had failed to hear evidence from A.S.
12. On 10 July 2003, finding the judgment of the first instance court in line with domestic law, the Court of Cassation rejected the applicant’s appeal.
13. On 29 March 2004 the Court of Cassation dismissed a request by the applicant for rectification of the judgment.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-4506
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: ADMISSIBILITY
DATE: 1999
DOCNAME: GARNER v. THE UNITED KINGDOM
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Nicolas Bratza
TEXT: The applicant is a British citizen born in 1953 and resident in Saffron Walden, Essex, England.
The facts, as submitted by the applicant, may be summarised as follows :
The applicant was a solicitor who practised on his own account between 1984-1993 undertaking principally property transactions and residential conveyancing matters. He was instructed by Mr. Weekes between 1984 - 1989 to act upon the sale and purchase of various properties. The purchases were financed by mortgages and the applicant was also instructed by the lending institutions (including Building Societies) to ensure that all legal formalities were complied with.
On 9 September 1993, following a jury trial, the applicant was convicted of conspiracy to obtain property by deception contrary to s.1(1) of the Criminal Law Act 1977. He was sentenced to two years' imprisonment.
The indictment so far as it is relevant stated as follows:


ITEMID: 001-58906
LANGUAGEISOCODE: ENG
RESPONDENT: FRA
BRANCH: GRANDCHAMBER
DATE: 1999
DOCNAME: CASE OF FRESSOZ AND ROIRE v. FRANCE
IMPORTANCE: 1
CONCLUSION: Violation of Art. 10;No separate issue under Art. 6-2;Pecuniary damage - financial award;Non-pecuniary damage - finding of violation sufficient;Costs and expenses award - domestic proceedings;Costs and expenses award - Convention proceedings
JUDGES: Luzius Wildhaber;Paul Mahoney
TEXT: 8. Mr Roger Fressoz and Mr Claude Roire, who are French nationals, lived in Paris at the material time. Mr Fressoz was born in 1921 and is a former publishing director of the weekly satirical newspaper Le Canard enchaîné. Mr Roire was born in 1939 and is a journalist on Le Canard enchaîné.
9. September 1989 was a period of industrial unrest within the Peugeot motor company. The workforce's demands included pay rises, which the management, led by the company chairman and managing director Mr Jacques Calvet, refused to award.
10. On 27 September 1989, Le Canard enchaîné published an article by Mr Roire under the headline:
“Calvet turbo-charges his salary”
with the subhead:
“His tax forms reveal more than he does. The Peugeot boss has given himself a 45.9% rise over the last two years.”
The article itself included the following:
“When Jacques Calvet appeared on the Antenne 2 programme 'L'heure de vérité' in October 1988, he refused to answer a question about his pay. This is seen as a public-relations blunder on the part of the Peugeot boss, but the Canard is now in a position to put it right, thanks to the famous M.D.'s three most recent tax-assessment forms, which have come into our hands by chance. At the time of the broadcast, he was earning 185,312 francs net per month.
These documents show that, between 1986 and 1988, Calvet's total salary (plus benefits in kind and sickness benefit) rose by 45.9%. According to Peugeot's own figures, the average pay of the group's 158,000 workers rose by 6.7% over the same two years – in other words, almost seven times less than the boss's.
M.D.'s blues
Calvet has turned Peugeot around in spectacular style, but in a recent interview on Antenne 2 he said he was under stress due to his group's position in the face of the Japanese offensive. It would appear that this painful psychological crisis has not prevented him from swelling his income – though it should be noted that Calvet is far from Number 1 in the hit-parade of chief executives' salaries.
In 1987 he awarded himself a 17% increase in his annual pay, bringing it to 1,786,171 francs – that is, 148,847 francs a month. Why? Probably because the Revenue had grabbed a big slice of his previous year's income. And this dreadful tax-pay spiral continued its destructive course the following year. In 1988, in order to scrape by, Calvet was forced to give himself another rise, of 24%. His salary that year came to 2,223,747 francs, i.e. 185,312 francs a month after deductions ...”
The article was illustrated by a box reproducing a photocopy of that part of each of the three notices of assessment to tax which detailed Mr Calvet's “total taxable income” and showed the amounts he had received by way of “salary, benefits in kind and sickness benefit”. Each of the three totals was circled in pencil.
11. On 2 October 1989 Mr Calvet lodged a criminal complaint against a person or persons unknown, together with an application to join the proceedings as a civil party claiming damages, with the senior investigating judge at Paris tribunal de grande instance. He submitted that the events in question must have involved the unlawful removal and possession of the originals or copies of documents normally held by the tax authorities and amounted to the offences of misappropriation of deeds or documents by a public servant, breach of professional confidence, misappropriation of documents for the time needed to reproduce them and handling unlawfully obtained documents.
12. On 5 October 1989 the public prosecutor applied to the investigating judge for an investigation to be opened into allegations of theft, breach of professional confidence, unlawful removal of deeds or documents by a public servant and handling unlawfully obtained goods.
13. On 25 October 1989 the Minister for the Budget also lodged a criminal complaint, together with an application to join the proceedings as a civil party claiming damages, against a person or persons unknown for unlawful removal of government documents and breach of professional confidence. On 11 December 1989 the public prosecutor requested that a further investigation be opened.
14. In the course of the investigation, an analysis of the computer reference number on the copy documents in Mr Roire's possession revealed that they were photocopies of the part of the tax-assessment notice which is kept by the tax authorities and is not intended to leave their premises. An inspection of the premises confirmed that the locks on the cabinets containing the documents had not been forced and that the alarm protecting the premises outside working hours had not been activated.
An examination of the original of Mr Calvet's tax assessment for 1988 revealed a palm-print belonging to the Divisional Director of Taxes. However, it was asserted that this person had called up the relevant tax file on 27 September 1989 at the request of the Head of the Revenue and the Director of Taxes for the département. The person or persons responsible for unlawfully removing the document from the tax authorities' premises could not be identified, with the result that no one was ever charged under that head.
15. On 8 March 1991 the applicants were charged with handling copies of notices of assessment to tax obtained through a breach of professional confidence, unlawful removal of deeds or documents and theft.
16. On 20 December 1991 the public prosecutor filed a report recommending that no one should be charged with the offences of theft or breach of professional confidence, that all the charges against the first applicant should be dropped and that the second applicant should be committed for trial before the Criminal Court on charges of handling photocopies of Mr Calvet's tax assessments obtained through a breach of professional confidence by an unidentified tax official.
17. On 27 January 1992 the investigating judge ordered that, as no culprit had been identified, the proceedings for theft and breach of professional confidence should be discontinued. The judge committed both applicants for trial before the Criminal Court on charges of handling confidential information concerning Mr Calvet's income obtained through a breach of professional confidence by an unidentified tax official and of handling stolen photocopies of Mr Calvet's tax assessments.
18. The applicants submitted two arguments in their defence: first, that the conditions for publishing directors to be criminally liable, laid down in section 42 of the Freedom of the Press Act of 29 July 1881 (see paragraph 25 below) did not apply and, second, that the elements of the offences with which they had been charged, as defined in Article 460 of the Criminal Code (see paragraph 27 below), were not made out in their case.
19. At the trial Mr Fressoz stated that the first time he had seen the extracts from the tax assessments printed in the newspaper was when he looked at the proofs before personally passing the article for press. He said he had asked Mr Roire “whether his documents were sound in journalistic terms”, that is to say, “whether the information was accurate and had been checked”. He acknowledged that, as a general rule, passing copy for press was the responsibility of an editorial assistant, who, “if there is a problem, consults the editor and, in the last resort, the publishing director”.
The second applicant stated that the photocopies of the tax assessments had been sent anonymously in an envelope addressed to him by name, about a fortnight before they were used in the paper. He explained that he had “checked the plausibility” of the information in the documents, in particular by looking up the level of Mr Calvet's remuneration in specialist works including Fortune France. He said that he had also checked with various persons to ensure that the documents were photocopies of “genuine” tax-assessment notices. He specified that he had also verified that they really were tax-authority documents, adding that once it appeared that there was no proof that they had been obtained unlawfully, “the overriding consideration was the documents' significance”.
20. In a judgment of 17 June 1992, Paris Criminal Court acquitted the applicants, holding that the principal offences of theft and breach of professional confidence had not been made out because it had proved impossible to identify who had disclosed the documents or to establish the circumstances in which the offences had been committed.
In relation to the offence of breach of professional confidence, the court held as follows:
“ ...
In the instant case, while it has been established that the originals of the documents in question are notices of assessment to tax held on Mr Calvet's tax file, it cannot be inferred from this that the person guilty of wrongfully taking them for the time needed to photocopy them, or of disclosing them to third parties, or of divulging the information contained in them, necessarily fell within one of the categories of person defined in the above-mentioned provision [Article L. 103 of the Code of Tax Procedure]; since the tax authorities themselves have suggested that the perpetrator might be 'someone from outside' ... – whatever the security regulations at the time.
The fact that the status and professional functions of the person responsible for the disclosure are unknown therefore rules out any possibility of proving one of the essential elements of the offence of breach of professional confidence.
Consequently, there is no formal proof that this offence was committed, so that the charge against the defendants of handling the fruits of a breach of professional confidence has not been made out ...”
In relation to the theft charge, the court held:
“... In particular, it has not been shown that the person who originally copied the documents had any unlawful intention or had such an intention at the time of taking the documents.
Hence, without further rehearsing the numerous questions remaining unanswered concerning how these documents found their way into Mr Roire's hands, we find that the elements of the offence of theft have not been sufficiently proved.
Unless it can be precisely established that, in the first place, an act defined as a serious crime (crime) or other major offence (délit) was committed, and its elements can be made out, the prerequisite for an offence of handling is lacking, and the defendant must be acquitted.”
21. On 25 and 26 June 1992 respectively, the public prosecutor and the civil parties claiming damages appealed.
22. In a judgment of 10 March 1993, Paris Court of Appeal reversed the judgment and found the applicants guilty of handling photocopies of Mr Calvet's tax returns obtained through a breach of professional confidence by an unidentified tax official. Mr Fressoz and Mr Roire were sentenced to, respectively, fines of 10,000 and 5,000 French francs (FRF) and ordered, jointly and severally, to pay Mr Calvet FRF 1 by way of damages for non-pecuniary damage and FRF 10,000 by way of reimbursement of legal costs under Article 475-1 of the Code of Criminal Procedure.
The Court of Appeal held as follows:
“This Court cannot agree with the manner in which the court below analysed the facts. The results of the investigations show that only a tax official familiar with the department could have leaked the documents, since no outside party had requested Jacques Calvet's file and that file was found, on the morning of 27 September 1989, in its normal condition, with the documents filed according to the particular practice of Chaillot Tax Office. It is certain that a third party, someone who was not a civil servant or was from outside the tax department, could not – without attracting attention – have taken documents filed in two separate places in the file, photographed or photocopied them and put them back in exactly the right place, given that the file is kept in a metal cabinet in a locked room to which there is access only for authorised persons.
Contrary to the court below, we therefore hold that, in this case, it has been established that the offence of breach of professional confidence was committed, and that the fact that the culprit has not been identified is irrelevant.
Mr Roire told the investigating judge that the photocopies of Jacques Calvet's tax notices were sent to him anonymously at the newspaper, in an envelope addressed to him personally. He confirmed that he had questioned various people in order to ensure that they were indeed copies of genuine tax documents.
Mr Roire's article, containing a reproduction of the documents in question, was submitted to Roger Fressoz, the publishing director of Le Canard enchaîné, who, personally, passed it for press.
Mr Fressoz told the investigating judge that he saw the extracts from Jacques Calvet's tax notices at that point. He explained that – as a general rule – copy is passed for press by the senior editorial assistant, who, if there is a problem, consults the editor and, in the last resort, himself.
The offence of handling the fruits of a breach of professional confidence was characterised, in the instant case, by the publication of documents obtained in breach of the provisions of Article L. 103 of the Code of Tax Procedure and Article 378 of the Criminal Code and was committed by Mr Roire and Mr Fressoz given that, in the light of the nature of the documents and of the checks which Mr Roire says he carried out, the defendants must have known that those documents came from a tax file. Moreover, this explains why the article was passed for press by Mr Fressoz, the publishing director, and not an editorial assistant or the editor. It is worth recalling that, although Mr Fressoz was not the person to whom the documents were sent, he saw them before giving his authorisation to publish the article reproducing extracts from them. Therefore, both the actus reus and the mens rea of the offence of handling the fruits of a breach of professional confidence are present in his case as well as in that of the author of the article, Mr Roire ...”
23. Mr Fressoz and Mr Roire appealed to the Court of Cassation on points of law. In their grounds of appeal (and subsequently in a reply to Mr Calvet's pleadings), they submitted two arguments.
As the first ground of appeal, Mr Fressoz argued that, since he was a publishing director as defined in the Act of 29 July 1881, the lower courts were not empowered to convict him of a handling offence under the general criminal law, but only of one of the offences specially defined in that Act. In his reply, he pointed out that the other side was confusing “handling” with “publishing”, submitting that Mr Calvet was concerned, not by the handling but by the publication – something which did not contravene any provision of the press laws, so that the prosecution had resorted to another, inappropriate, charge, that of handling.
As the second ground, both applicants argued that the elements of the offence with which they had been charged, as defined in the relevant domestic law, including sections 5, 6 and 42 of the 1881 Act, were not made out in their case. On that point, they maintained that Mr Calvet's tax assessments were not covered by a duty to preserve confidentiality – so that there could have been no breach of such a duty – but contained information which was available to the public. They argued that a journalist could not lawfully be convicted of “handling information” and submitted that the Court of Appeal had failed to demonstrate how the actus reus and mens rea of the offence with which they had been charged – namely possession or control of the thing in question and knowledge that it had been obtained unlawfully – were made out in their case. With regard to the fact that the Court of Appeal had deduced that Mr Roire must have known that the documents had been obtained unlawfully since, when he had received them, he had verified that they were indeed copies of tax assessments, Mr Roire submitted that he had “merely fulfilled his duty as a journalist: before publishing information, he had checked that it was genuine, as required by the obligation on all journalists to exercise caution and verify sources”.
24. The Court of Cassation dismissed the appeal on 3 April 1995, holding as follows:
“ ...
The grounds [of the Court of Appeal's judgment], following as they do from findings of fact which are not subject to review by this Court, show that the appellate court, having established that the defendants knowingly had in their possession or control documents obtained through a breach of professional confidence, contrary to Article L. 103 of the Code of Tax Procedure, did not misdirect themselves in law as alleged [by the appellants].
In particular, the Court of Appeal cannot be held to have misinterpreted Article 460 of the Criminal Code as it stood at the time, in which the only offence defined is that of handling stolen goods, since, although it found the applicants guilty of handling unlawfully obtained photocopies, it rightly dismissed the charge of handling unlawfully obtained information on which the journalists were committed for trial before the Criminal Court.
Information, whatever its nature or source, is covered neither by Article 460 nor by Article 321-1 of the Criminal Code which came into force on 1 March 1994, so that, if a problem arose – that is, if certain information were published and that publication were challenged by the persons concerned – the only legal provisions governing it would be those specifically concerning the freedom of the press or of audiovisual communication ...”
25. The relevant sections of the Freedom of the Press Act of 29 July 1881 provide as follows:
“Anyone may print or sell books and other publications”.
“Any newspaper or periodical may be published without prior authorisation or the payment of any security, provided that the declaration required by section 7 has been made”.
“All press publications must have a publishing director ...”
“The following persons shall be liable, as principals and in the following order, to penalties for serious crimes (crimes) or other major offences (délits) committed through the press:
(1) publishing directors or publishers, whatever their profession or title and, in the circumstances defined in section 6(2), joint publishing directors;
(2) in the absence of any of the foregoing, the actual offenders;
...”
26. The relevant Articles of the Code of Tax Procedure provide as follows:

Article L. 103
“The duty to preserve professional confidentiality, as defined in Article 378 of the Criminal Code, applies to any person who is required, in the course of his duties or exercise of his powers, to take any action concerning the assessment, inspection or recovery of, or disputes over, any taxes, duties, imposts or levies referred to in the General Tax Code. The duty shall cover all information obtained in the course of the above-mentioned operations.”
Article L. 111-1
“A list of the persons liable for income tax or corporation tax shall be drawn up, distinguishing between the two types of tax as levied in each municipality.
...
The list shall be kept by the Revenue Department for each area and shall be available for consultation by the taxpayers in that area. The Department may order it to be posted.
...
The list concerning income tax shall also show, in the manner provided for by decree and for each taxpayer, the number of dependants' allowance tax units applicable, the amount of tax payable and the total tax credits.
...
Publishing or otherwise disseminating the lists referred to above or any information relating to those lists which concerns a named person is forbidden on pain of a tax fine under Article 1768 ter of the [General Tax] Code”.
27. At the material time, Article 460 of the Criminal Code provided:
“Anyone who knowingly handles any goods (or any part thereof) taken, misappropriated or obtained by means of a serious crime (crime) or other major offence (délit) shall be liable to between three months' and five years' imprisonment or a fine of between FRF 10,000 and FRF 2,500,000 or both. The amount of the fine may be increased to a sum exceeding FRF 2,500,000 but not exceeding half the value of the goods handled ...”
VIOLATED_ARTICLES: 10


ITEMID: 001-72544
LANGUAGEISOCODE: ENG
RESPONDENT: POL
BRANCH: CHAMBER
DATE: 2006
DOCNAME: CASE OF HULEWICZ v. POLAND
IMPORTANCE: 4
CONCLUSION: Violations of Art. 5-1;Non-pecuniary damage - financial award
TEXT: 8. The applicant was born in 1974 and lives in Lębork, Poland.
9. In the evening of 12 November 1996 the applicant was arrested on suspicion of attempted extortion committed earlier on that day.
10. On 14 November 1996 the Lębork District Court (Sąd Rejonowy) detained him on remand until 12 February 1997. It observed that the evidence obtained so far indicated that there was a great likelihood that the offence in question had been committed by the applicant. Further, it noted that the victim of the crime gave detailed testimony which he confirmed during the confrontation with the applicant. The placing of the applicant in detention was also justified by the severity of the anticipated penalty and the risk of the applicant’s going into hiding and attempting to influence witnesses. With regard to the risk of going into hiding, the District Court emphasised that in connection with the second set of proceedings (see below), the police had been looking for the applicant for over a month before his arrest. The applicant appealed against the detention order.
11. On 25 November 1996 the applicant requested his release. On 29 November 1996 the Słupsk Regional Court (Sąd Wojewódzki) upheld the decision on the applicant’s detention and rejected his application for release. On unspecified dates in November 1996 the Lębork District Prosecutor heard testimonies from a number of witnesses.
12. On 21 January 1997 the investigation was terminated. On 30 January 1997 the District Prosecutor lodged with the Lębork District Court a bill of indictment against the applicant and the three co-accused persons. The applicant was charged with attempted extortion.
13. On 12 February 1997 the President of the Lębork District Court fixed the date of the first hearing for 8 May 1997. On 14 April 1997 the applicant’s lawyer requested the trial court to adjourn the hearing scheduled for 8 May 1997, since on the same day he had to attend a hearing in another case. On 18 April 1997 the court informed the applicant’s lawyer that it did not find any compelling reasons to adjourn the hearing.
14. A hearing scheduled for 8 May 1997 was adjourned due to the absence of the co-accused B.C. and the lawyers for the applicant and B.C. The trial court fixed the dates of the subsequent hearings for 17 June and 1 July 1997.
15. At the hearing of 17 June 1997 the applicant’s lawyer requested the applicant’s release. The trial court dismissed the request, considering that the grounds originally given for the applicant’s detention were still valid and that there were no new circumstances which would justify the termination of the detention. The trial court decided to adjourn the trial until 28 August 1997.
16. The hearing fixed for 28 August 1997 was adjourned until 9 October 1997. On 12 September 1997 the District Court ordered that the co-accused B.C. be detained on remand, considering that his behaviour clearly jeopardised the proper conduct of the proceedings.
17. On 7 October 1997 the trial court heard three witnesses. A hearing scheduled for 9 October 1997 was adjourned until 13 November 1997. On that date the District Court heard one witness and decided to close the trial. The applicant’s lawyer requested that his client be released.
18. On 14 November 1997 the Lębork District Court delivered its judgment. It convicted the applicant as charged and sentenced him to three years’ imprisonment and a fine. It also dismissed a request for the applicant’s release. The applicant appealed.
19. On 6 February 1998 the Slupsk Regional Court amended the first-instance judgment in favour of the applicant by reducing the sentence of imprisonment to one year and a half.
20. On 12 November 1996 the applicant was arrested on suspicion of acts of extortion committed at the beginning of October 1996.
21. On 14 November 1996 the Lębork District Court ordered that the applicant be detained on remand until 13 January 1997. The court considered that the evidence obtained so far in the investigation, in particular through the testimony of witnesses, revealed a great likelihood that the applicant had committed the offence with which he had been charged. It also pointed to the severity of the anticipated penalty and the risk that the applicant would go into hiding and attempt to induce witnesses and the victim to change their testimonies.
22. On 18 November 1996 the applicant requested to be released or to have his detention replaced by a more lenient preventive measure. On 29 November 1996 the Słupsk Regional Court (Sąd Wojewódzki) upheld the decision of 14 November 1996.
23. On 7 January 1997 the Lębork District Court prolonged the applicant’s detention until 12 February 1997, referring to the necessity to carry out certain investigative measures.
24. On 13 January 1997 the District Prosecutor lodged with the Lębork District Court a bill of indictment against the applicant and three co-accused persons. The prosecutor asked the trial court to hear eleven witnesses.
25. On 10 February 1997 the President of the District Court fixed the dates of the hearings for 25 and 27 February 1997. On 13 February 1997 the applicant’s lawyer requested the trial court to postpone the hearing scheduled for 25 February 1997, since on that date he had to attend another hearing.
26. At the hearing held on 25 February 1997 the court heard the co-accused R.G.-D. Subsequently, the latter’s lawyer resigned, obliging the court to adjourn the hearing until 25 March 1997.
27. At the hearing of 25 March 1997 the trial court heard one of the co-accused and some witnesses. Subsequently, the District Court decided that the charges brought in the case should be characterised as armed robbery and that it did not have jurisdiction to hear the case due to the gravity of the charges. Accordingly, the case was transmitted to the Słupsk Regional Court, sitting as a court of first-instance, and registered under no. II K 25/97 on 8 April 1997.
28. On 21 April 1997 the applicant filed an application for release. On 23 April 1997 the Słupsk Regional Court dismissed the application. It relied on the great likelihood that the applicant had committed the offence at issue. The Regional Court emphasised the severity of the penalty likely to be imposed on the applicant. It further referred to the need to ensure the proper conduct of the proceedings, which concerned four co-accused persons. The court rejected as irrelevant the applicant’s argument that his detention in the present case “duplicated” the detention order made in the first set of proceedings. Lastly, the court considered that there were no circumstances which would justify the termination of the applicant’s detention pursuant to Article 218 of the Code of Criminal Procedure.
29. On 9 May 1997 the Regional Court refused to join case no. II K 77/97 (the first set of proceedings) to the present one. It considered that the three co-accused persons were different in each case and that the applicant was the only accused person to face charges in both sets of proceedings.
30. The court held hearings on 5 and 6 November 1997. On 5 November 1997 the applicant again requested his release. On the following day the applicant was released but continued to be detained in the framework of the first set of proceedings.
31. On 5 December 1997 the trial court held a hearing and delivered a judgment. It sentenced the applicant to one year’s imprisonment. The judgment became final on 24 June 1998.
32. On 28 January 2000, upon the applicant’s request, the Słupsk Regional Court issued a cumulative judgment (wyrok łączny) sentencing the applicant to a cumulative penalty of one year and ten months’ imprisonment (kara łączna) for the convictions contained in the judgments of 6 February 1998 (delivered in the course of the first set of proceedings) and of 5 December 1997 (delivered in the course of the second set of proceedings). The applicant appealed. On 11 May 2000 the Gdańsk Court of Appeal (Sąd Apelacyjny) upheld the judgment.
33. At the material time the domestic provisions governing detention on remand were contained in the Code of Criminal Procedure of 1969, which is no longer in force as it was repealed and replaced by the Code of Criminal Procedure of 6 June 1997, which entered into force on 1 September 1998.
34. The 1969 Code of Criminal Procedure listed detention among the so-called “preventive measures” imposed by a prosecutor (which also included, inter alia, bail and police supervision). After 4 August 1996 (that is, the date on which the Law of 29 June 1995 on Amendments to the Code of Criminal Procedure and Other Criminal Statutes came into force) detention on remand could be imposed, pursuant to Article 210 § 3, only by a court.
35. Article 209 of the Code of Criminal Procedure set out the general grounds for the imposition of preventive measures. That provision, as it stood at the relevant time, provided:
“Preventive measures may be imposed in order to ensure the proper conduct of the proceedings if the evidence against the accused sufficiently justifies the opinion that he has committed a criminal offence.”
36. Article 217 § 1 of the Code defined grounds for detention on remand. At the relevant time, that provision read:
“Detention on remand may be imposed if:
(1) there is a reasonable risk that an accused person will abscond or go into hiding, in particular when his identity cannot be established or he has no permanent abode [in Poland]; or
(2) there is a reasonable risk that an accused person will attempt to induce witnesses to give false testimony or to obstruct the proper conduct of the proceedings by any other unlawful means.”
37. The 1969 Code set out a margin of discretion for deciding whether to maintain a specific preventive measure. Articles 213 § 1, 218 and 225 of the Code were based on the idea that detention on remand, the most severe among the preventive measures, should not be imposed if more lenient means were adequate.
Article 213 § 1 provided:
“A preventive measure [including detention on remand] shall be immediately lifted or varied if the basis therefor has ceased to exist or if new circumstances have arisen which justify ending a given measure or replacing it by a more or less severe one.”
Article 225 stated:
“Detention on remand shall be imposed only when it is mandatory; it shall not be imposed if bail or police supervision, or both, are considered adequate.”
Finally, Article 218 provided:
“If there are no special reasons to the contrary, detention on remand shall be ended, in particular, if:
(1) it may seriously jeopardise the life or health of the accused, or
(2) it would entail excessively burdensome effects for the accused or his family.”
38. Article 214 of the 1969 Code, in the version applicable at the material time, stated, in so far as relevant:
“An accused may at any time apply to have a preventive measure quashed or altered. ...”
39. Until 4 August 1996, i.e. the date on which the relevant provisions of the Law of 29 June 1995 on Amendments to the Code of Criminal Procedure and Other Criminal Statutes entered into force, the law did not set any time-limits for detention on remand in court proceedings; it did so only for the investigation stage.
Article 222(3) of the 1969 Code, in the version applicable after 4 August 1996, provided, in so far as relevant:
“The whole period of detention on remand until the date on which the court of first instance gives judgment may not exceed one year and six months in cases concerning offences. In cases concerning serious offences [offences for the commission of which a person was liable to a sentence of a statutory minimum of at least 3 years’ imprisonment] this period may not exceed two years.”
40. At the relevant time there was no specific provision governing detention on remand after the bill of indictment had been lodged with the competent court. Since 4 August 1996 the courts have been and are bound by the maximum statutory time-limits for which detention on remand can be imposed during the entire course of the proceedings. However, at the material time, there was no provision stating that the lodging of a bill of indictment automatically prolonged or replaced a previous detention order, or that this event itself resulted in detention – which had originally been prolonged by a court for a fixed period at the investigation stage – being continued either for an unlimited period or until a first-instance judgment was given. Nor was there any case-law to that effect. Nevertheless, according to domestic practice, once a bill of indictment had been lodged with the court competent to deal with the case, detention was assumed to be prolonged pending trial even in the absence of any further judicial decision.
41. It was only on 6 February 1997 that the Supreme Court, referring to the historical background of the amended criminal legislation, mentioned the practice of keeping an accused person in detention under the bill of indictment. It did so in a ruling on the interpretation of the Code of Criminal Procedure. That ruling related to the Code as amended with effect from 4 August 1996, where Article 222 (as amended) set out maximum time-limits for detention on remand not only at the investigation stage but at the whole pre-trial stage. In its Resolution no. I KZP 35/96 the Supreme Court replied – in the affirmative – to the question of whether, after the lodging of a bill of indictment with the competent court, that court was obliged to issue a decision prolonging the detention on remand which had, meanwhile, exceeded the period fixed (or prolonged) at the investigation stage. The relevant parts of the resolution read as follows:
“Under the provisions of the Code of Criminal Procedure which applied before [4 August 1996, when] the amendment of 29 June 1995 took effect, an obligation to determine the period of detention imposed by a prosecutor at the investigation stage was laid down in Article 211 § 2. However, it did not emerge explicitly from Article 222 §§ 1 and 2 (1) of the Code that, at the investigation stage, a prosecutor or the court competent to deal with the case had each time to determine the point until which detention should last. It was deemed to be obvious that, when prolonging detention at the investigation stage, both the prosecutor and the court competent to deal with the case had to determine the time until which detention was to last under a given decision. It was therefore assumed that the obligation to determine the period of detention arose if a decision on that matter was given before the expiry of the maximum statutory terms applicable at a given stage of the proceedings.
Comparing the old legislation with the present one leads [this Court] to the conclusion that the legislator, when amending the Code in June 1995, simply extended [the scope of] the rules applicable to continuing and prolonging detention on remand – which had previously applied only at the investigation stage – to the phase of court proceedings.
Before the amendment, the legislation was based on the idea that a suspect should not be detained indefinitely as long as his case was not being dealt with by an independent court. Now the starting-point is that a suspect (and an accused person) should not be detained indefinitely, as long as a first-instance judgment is not rendered.
Under the previous legislation there was no need to determine the period of detention after a bill of indictment had been lodged with the court because at this point proceedings reached the phase in which there was no statutory time-limit [on this measure]. For this reason, the court concerned had no interest in [knowing] until when detention had been prolonged under the last decision[;] detention could continue because ‘detention of limited duration’ had become ‘detention of unlimited duration’. There was therefore only a need to ascertain whether there were grounds for continuing detention under Article 213 of the Code.”
In its further Resolution no. I KZP 23/97 of 2 September 1997, the Supreme Court confirmed that:
“If the case in which detention on remand was ordered has been referred to a court with a bill of indictment and the period of detention previously fixed has expired, the court has a duty to consider whether detention needs to be continued and to give an appropriate decision on this matter.”
Referring to its ruling of 6 February 1997, it also stressed that:
“... the ratio legis of the amendments to the criminal legislation is based on the concept that a suspect (accused person) should in no case be detained indefinitely until the first-instance judgment is rendered in his case...
It should be noted that, from the point of view of procedural safeguards for an accused person, what is material is not how long his detention at the investigation stage has lasted and how long it has lasted at the stage of the court proceedings, but the total period of his detention and whether his detention and its length are subject to review. If there is such a review at the investigation stage (Article 222 §§ 1 and 2), there is no reason why there should not be one at the stage of the court proceedings...”
VIOLATED_ARTICLES: 5
VIOLATED_PARAGRAPHS: 5-1