ITEMID: 001-109029
LANGUAGEISOCODE: ENG
RESPONDENT: DEU
BRANCH: GRANDCHAMBER
DATE: 2012
DOCNAME: CASE OF VON HANNOVER v. GERMANY (No. 2)
IMPORTANCE: 1
CONCLUSION: No violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for private life)
JUDGES: Christos Rozakis;Françoise Tulkens;Ján Šikuta;Jean-Paul Costa;Josep Casadevall;Karel Jungwiert;Kristina Pardalos;Lech Garlicki;Luis López Guerra;Mark Villiger;Mihai Poalelungi;Mirjana Lazarova Trajkovska;Nicolas Bratza;Nona Tsotsoria;Peer Lorenzen;Rait Maruste;Renate Jaeger;Zdravka Kalaydjieva
TEXT: 10. The applicants, who are the elder daughter of the late Prince Rainier III of Monaco and her husband, were born in 1957 and 1954 respectively and live in Monaco.
11. Since the early 1990s the first applicant has been trying – often through the courts – to prevent the publication of photos about her private life in the press.
12. Two series of photos, published in 1993 and 1997 respectively in three German magazines and showing the first applicant with the actor Vincent Lindon or her husband, had been the subject of three sets of proceedings in the German courts and, in particular, leading judgments of the Federal Court of Justice of 19 December 1995 and of the Federal Constitutional Court of 15 December 1999 dismissing the first applicant’s claims.
13. Those proceedings were the subject of the Von Hannover v. Germany judgment of 24 June 2004 (no. 59320/00, ECHR 2004VI) in which the Court held that the court decisions had infringed the first applicant’s right to respect for her private life, a right guaranteed by Article 8 of the Convention.
14. Regarding the reasoning of the domestic courts, the Court made the following findings in particular:
“72. The Court finds it hard to agree with the domestic courts’ interpretation of section 23(1) of the Copyright (Arts Domain) Act, which consists in describing a person as such as a figure of contemporary society ‘par excellence’. Since that definition affords the person very limited protection of their private life or the right to control the use of their image, it could conceivably be appropriate for politicians exercising official functions. However, it cannot be justified for a ‘private’ individual, such as the applicant, in whom the interest of the general public and the press is based solely on her membership of a reigning family, whereas she herself does not exercise any official functions.
In any event the Court considers that, in these conditions, the Act has to be interpreted narrowly to ensure that the State complies with its positive obligation under the Convention to protect private life and the right to control the use of one’s image.
73. Lastly, the distinction drawn between figures of contemporary society ‘par excellence’ and ‘relatively’ public figures has to be clear and obvious so that, in a State governed by the rule of law, the individual has precise indications as to the behaviour he or she should adopt. Above all, they need to know exactly when and where they are in a protected sphere or, on the contrary, in a sphere in which they must expect interference from others, especially the tabloid press.
74. The Court therefore considers that the criteria on which the domestic courts based their decisions were not sufficient to protect the applicant’s private life effectively. As a figure of contemporary society ‘par excellence’ she cannot – in the name of freedom of the press and the public interest – rely on protection of her private life unless she is in a secluded place out of the public eye and, moreover, succeeds in proving it (which can be difficult). Where that is not the case, she has to accept that she might be photographed at almost any time, systematically, and that the photos are then very widely disseminated even if, as was the case here, the photos and accompanying articles relate exclusively to details of her private life.
75. In the Court’s view, the criterion of spatial isolation, although apposite in theory, is in reality too vague and difficult for the person concerned to determine in advance. In the present case, merely classifying the applicant as a figure of contemporary society ‘par excellence’ does not suffice to justify such an intrusion into her private life.”
15. Relying on the Court’s judgment in the first applicant’s case, the applicants subsequently brought several sets of proceedings in the civil courts seeking an injunction against any further publication of photos that had appeared in German magazines.
16. The first three photos were published by the publishing company Ehrlich & Sohn GmbH & Co. KG in the magazine Frau im Spiegel.
17. The first photo, which appeared in issue no. 9/02 of 20 February 2002, shows the applicants out for a walk during their skiing holiday in St Moritz. It is accompanied by an article with the heading: “Prince Rainier – not home alone” (“Fürst Rainier – Nicht allein zu Haus”). The article reads as follows.
“The first magnolia buds are flowering in the grounds of Monaco Palace – but Prince Rainier (78) appears to have no interest in the burgeoning spring. He goes for a walk outside with his daughter Stéphanie (37). She supports him as he walks along slowly. He is cold despite the sunshine. The old gentleman is weary. The Monegasques saw their prince for the last time three weeks ago at a circus festival. He had appeared bright and cheerful, walking along beside his daughter who was laughing. But since then he has not left the palace. Not even for the St Devota celebration held in honour of the national Patron Saint. The Principality is worried, as are Prince Rainier’s children. Prince Albert (who is currently taking part in the Olympic Games in Salt Lake City), Princess Caroline (on holiday in St Moritz with Prince Ernst August von Hannover) and Princess Stéphanie take it in turns to look after their father. He must not be left home alone when he is not well. Not without his children’s love.”
A photo of Prince Rainier with his daughter Princess Stéphanie and a photo of Prince Albert of Monaco taken during the Olympic Games in Salt Lake City appeared on the same page.
18. The second photo, which appeared in issue no. 9/03 of 20 February 2003, shows the applicants out for a walk in St Moritz. The caption says: “Ernst August von Hannover and his wife, Princess Caroline of Monaco, enjoy the sun and snow in St Moritz.” A small photo of Prince Albert and two photos of members of a European royal family appeared on the same page. The article accompanying the photos, bearing the heading “Royal fun in the snow”, is about how happy the persons photographed are to meet up in St Moritz.
19. The third photo, which appeared in issue no. 12/04 of 11 March 2004, shows the applicants in a chair lift in Zürs am Arlberg during their skiing holiday. On the same page there is a small photo of Prince Rainier, the first applicant and Prince Albert, taken during the national holiday on 19 November and bearing the heading “The princess’s last appearance”. Another photo, taking up half the page, shows the first applicant at the Rose Ball.
The three photos illustrate an article bearing the heading “Princess Caroline. The whole of Monaco awaits her”, of which the passages relevant to the present case read as follows.
“Tickets for the Rose Ball, which will be held on 20 March in Monaco, have been selling for weeks. And the guests will be coming only for her: Princess Caroline von Hannover (47). She has not attended any official engagements since the national holiday ... She was not at the circus festival or the St Devota celebration held in honour of the patron saint of Monaco. By tradition, the eldest daughter of Prince Rainier (80) opens the annual ball. She has inherited this role from her mother, who died in an accident, and this ball is Caroline’s favourite ... The prince, who is seriously ill, has just come out of hospital after a heart operation and is still too weak to attend the ball. The welcome speech which he will be making in honour of the guests will be retransmitted via television cameras and projected onto a big screen. Princess Caroline and her husband [Prince] Ernst August von Hannover will open the Rose Ball with a waltz.
They celebrated their fifth wedding anniversary together in January. And there was more cause for celebration in the von Hannover household: the prince turned 50 on 26 February. He celebrated his birthday with Caroline and some friends at the fashionable resort of St Moritz, glistening white in the snow. The couple were actually spending their holiday in Zürs am Arlberg, but for the birthday party they went down to the Palace Hotel in St Moritz for a few days.”
20. The publishing company WZV Westdeutsche Zeitschriftenverlag GmbH & Co. KG published in issue no. 9/02 of 20 February 2002 of the magazine Frau Aktuell the same photo (or a virtually identical one) as the one that had appeared the same day in the magazine Frau im Spiegel no. 9/02 (see paragraph 17 above). The article accompanying the photo in Frau Aktuell bears the heading: “That is genuine love. Princess Stéphanie. She is the only one looking after the sick prince.” The relevant passages of the article are worded as follows.
“Her love life may appear unbridled. One thing is certain, though: as far as her father is concerned, Princess Stéphanie knows where her heart lies. While the rest of the family are travelling around the world, she has run to be at the side of Prince Rainier (78), who appears to be seriously ailing. She is the only one who takes care of the sick monarch. Stéphanie’s sister, Caroline (45), has taken a few days’ holiday with her husband Ernst August (48) and their daughter Alexandra (2) at the fashionable St Moritz ski resort in Switzerland. Prince Albert, for his part, has been at the Olympic Games in Salt Lake City taking part in the four-man bobsleigh race. ‘For the fifth and last time,’ he said. From time to time he would disappear for a number of days. It is said that the prince has seen his heart-throb, Alicia Warlick (24), an American pole vaulter who is rumoured to become his future wife. [Prince Rainier], who hates being alone now, was very glad to see his younger daughter. Stéphanie has devoted a lot of time to him. She has been out on long walks with him and they have greatly confided in each other. ‘Rainier has relished the company of his younger daughter. When she is at his side he truly flourishes. During those moments he forgets that he is old and sick,’ say the Monegasques. ‘Stéphanie should come much more often.’”
On the same page there is the photo of Princess Stéphanie with her father that had appeared the same day in the magazine Frau im Spiegel no. 9/02 (see paragraph 17 above), a headshot of her and two other photos, one of Prince Albert alone and the other of the prince with Alicia Warlick.
21. On an unspecified date in 2004, the first applicant sought an injunction in the Hamburg Regional Court against any further publication of the three photos by the Ehrlich & Sohn publishing company.
22. In a judgment of 29 April 2005, the Regional Court granted the injunction on the ground that the first applicant had not consented to publication of the photos, which was a precondition under section 22 of the Copyright (Arts Domain) Act (hereafter “the Copyright Act” – see paragraph 70 below). The court stated, however, that even if consent were deemed unnecessary in the case of the first photo on the ground that it was an image from contemporary society (Bildnis aus dem Bereich der Zeitgeschichte) within the meaning of section 23(1)(1) of the same Act, publication of the photo was not justified. Under subsection 2 of that provision, publication of such an image was only lawful if it did not interfere with a legitimate interest of the person photographed. According to the court, the question as to whether there was such a legitimate interest had to be determined by balancing the interests of the person photographed against those of the public in being informed.
23. The Regional Court found that in the present case it was the first applicant’s right to the protection of her personality rights that prevailed. In reaching that conclusion the Regional Court referred extensively to the Court’s judgment in Von Hannover. It found that the first applicant’s relationship with her father, regardless of the fact that he was ill, did not contribute to a debate of general interest to society especially as the first applicant was connected to the prince of a State of minor importance in international politics merely through a family tie and did not exercise any official function.
24. The Regional Court stated that, whilst that reasoning was not entirely in keeping with the principles established by the Federal Constitutional Court, which did not recognise a legitimate interest unless the person photographed had retired to a secluded place away from the public eye, it was not bound by that precedent to the extent that it could not take into consideration the Court’s case-law on the subject.
25. The publishing company appealed against that judgment.
26. In a judgment of 31 January 2006, the Hamburg Court of Appeal set aside the judgment on the ground that the applicant’s right under Article 8 of the Convention had to yield to the fundamental rights of the press. It found that, whilst the articles were primarily of entertainment value, publication of the photos was nonetheless lawful in terms of the judgment of the Federal Constitutional Court of 15 December 1999 whose main legal reasoning (tragende Erwägungen) was binding on the Court of Appeal. It pointed out that public figures should certainly be protected from the risk of being photographed at any time and anywhere and seeing the photos subsequently published. However, in the Court of Appeal’s opinion, the legitimate interest of such figures, within the meaning of section 23(2) of the Copyright Act, should not result in the prohibition of any reporting on wellknown people outside their official appearances. In any event, the right to respect for private life did not require the banning of publication of photos taken in public places accessible to all and where the individual concerned was amongst many other people.
27. The first applicant appealed on points of law against that judgment.
28. In a judgment of 6 March 2007 (no. VI ZR 51/06), the Federal Court of Justice dismissed her appeal in respect of the first photo. With regard to the second and third photos, it upheld her appeal, quashed the judgment of the Court of Appeal and reinstated the injunction imposed by the Regional Court.
29. The Federal Court of Justice found that the opinion of the Court of Appeal did not correspond to the concept of graduated protection (abgestuftes Schutzkonzept) that had been developed in the case-law on the basis of sections 22 and 23 of the Copyright Act and which it had clarified in a number of recent decisions delivered following the Von Hannover judgment and in response to the reservations of principle which the Court had expressed in that judgment. According to that new concept of protection, section 23(1) of the Copyright Act, which provided for an exception to the rule according to which a photo could not be published without the prior consent of the person concerned, took account of the public’s interest in being informed and of the freedom of the press. Accordingly, when assessing whether or not the impugned publication portrayed an aspect of contemporary society within the meaning of section 23(1)(1) of the Copyright Act, a balancing exercise had to be undertaken between the rights under Articles 1 § 1 and 2 § 1 of the Basic Law and Article 8 of the Convention on the one hand, and those under Article 5 § 1, second sentence, of the Basic Law and Article 10 of the Convention on the other hand.
30. The Federal Court of Justice added that the Court’s criticism of the expression “figure of contemporary society par excellence” ultimately concerned the determination of the conditions in which the media could report on well-known people such as these. It considered that, irrespective of the issue whether the first applicant should be regarded as a figure of contemporary society par excellence, she was in any case a well-known person who particularly attracted public attention. In the court’s view, that fact, combined with the fact that she had not been in a secluded place out of the public eye when the photos had been taken, was nonetheless insufficient to deprive her of protection of her private sphere. That conclusion was not only appropriate in the light of the Court’s ruling but also reflected a proper understanding of the concept of protection thus developed.
31. Accordingly, the Federal Court of Justice found that the publication of images of persons who – on account of their importance in contemporary society – were in theory required, under section 23(1)(1) of the Copyright Act, to tolerate the publication of photos of themselves was nevertheless unlawful if the legitimate interests of the person concerned were infringed (section 23(2)). There could be no exception to the obligation to obtain the consent of the person in question unless the report in question concerned an important event of contemporary society. The expression “contemporary society” – and indeed the term “information value” – had to be interpreted in a broad sense and according to whether there was a public interest. It comprised any matter of general interest to society and included reports for entertainment purposes, which could also play a role in the formation of opinions, or even stimulate or influence these to a greater degree than purely factual information.
32. Whilst the freedom of the press and the prohibition of censorship required the press to be able to decide for itself which subjects it intended to report on and what it intended to publish, the press was not exempt from the duty to weigh its interest in publishing the information against the protection of the privacy of the person concerned. The greater the information value for the general public, the more the right to protection had to yield. Conversely, where the interest in informing the public decreased, the importance of protecting the person concerned carried correspondingly greater weight. The reader’s interest in being entertained generally carried less weight than that of protecting privacy, in which case the reader’s interest did not merit protection.
33. The Federal Court of Justice stated that, accordingly, even where persons who had hitherto been regarded as figures of contemporary society were concerned, consideration must be given to the question whether the report contributed to a factual debate (mit Sachgehalt) and whether the content went beyond a mere intention to satisfy public curiosity. In determining that question, there was nothing to prevent regard being had to how well the person concerned was known to the public.
34. The Federal Court of Justice stressed that that manner of balancing the various interests at stake corresponded to the requirements of the Court regarding effective protection of the private sphere and the requirements of the freedom of the press, and that it did not conflict with the binding force of the judgment of the Federal Constitutional Court of 15 December 1999. Admittedly, that court had limited the protection afforded to the private sphere against the publication of unwanted photos to cases of spatial seclusion. That did not, however, prevent the courts – when balancing the various interests – from having more regard to the value of the information for the public. Furthermore, the Federal Constitutional Court had [recently] endorsed the balancing exercise undertaken by the Federal Court of Justice according to those criteria in a judgment concerning the second applicant (decision of 13 June 2006, no. 1 BvR 565/06).
35. The Federal Court of Justice specified that as the determining criterion for the balancing exercise was the information value of the photo in question and as it had been published in the context of a written article, the content of the text accompanying the photo could not be ignored.
36. Applying the criteria thus established to the case submitted to it, the Federal Court of Justice, beginning with the second and third photos, observed that the second photo showed the applicants in a busy street in St Moritz during their skiing holiday. Whilst the press could, as a matter of principle, make its own decision regarding the content of its publications and the applicants had indeed been in a public place amongst other people, neither the article nor the photo related to an event of general interest or contemporary society. A celebrity’s holidays fell within the core area (Kernbereich) of his or her private sphere. The publication of the article and photo had been for entertainment purposes only and was not in any way relevant to matters of public interest, so could only be done with the first applicant’s consent.
37. The Federal Court of Justice noted that the third photo showed the applicants in a chair lift in Zürs during their skiing holiday. Whilst the Rose Ball shortly to be held in Monaco, which was the subject of the article accompanying the photo, could possibly be regarded as an event of contemporary society that was a matter of general interest to society, there was no link between the photo and that event. The purpose of the photo had been to supplement the part of the article about the second applicant’s birthday party in St Moritz and the applicants’ skiing holiday in Zürs. Thus the information centred exclusively on the first applicant’s private life and served merely entertainment purposes. Accordingly, the third photo could not be published without the first applicant’s consent either.
38. Regarding the first photo, the Federal Court of Justice observed that whilst it contained no information having any connection with an event of contemporary society or contributing to a debate of general interest, the same was not true of the accompanying text. Admittedly, the part about the first applicant’s skiing holiday did not concern an event of contemporary society or general interest, even interpreting those terms broadly. However, with regard to the prince’s health, the Federal Court of Justice found as follows:
“The information also concerned the ill-health of the reigning Prince of Monaco. His ill-health was thus an event of contemporary society on which the press was entitled to report. The journalistic quality and the conception of the article are not decisive because the principle of the freedom of the press does not allow the applicability of a fundamental right to depend upon the quality of the press coverage or how the article is drafted. This also applies to the comments in the article on the conduct of members of the family during the prince’s illness, and, moreover, the applicant has not complained about the article in that respect. The photo in question supports and illustrates the information being conveyed.”
39. The Federal Court of Justice concluded that, in those circumstances and having regard to the context of the report as a whole, the first applicant had no legitimate interest that could have opposed publication of the photo of the applicants out in the street. There had, in particular, been nothing about the photo itself that constituted a violation (eigenständiger Verletzungseffekt) and thus justified a different conclusion; nor was there anything to suggest that the photo had been taken surreptitiously or by using secret technical devices that rendered its publication unlawful.
40. In a judgment of 26 February 2008, the First Division (Senat) of the Federal Constitutional Court dismissed constitutional appeals lodged by the first applicant (no. 1 BvR 1626/07) and by the Ehrlich & Sohn GmbH & Co. KG publishing company (no. 1 BvR 1602/07) against the judgment of the Federal Court of Justice (no. VI ZR 51/06).
In the same judgment it allowed a constitutional appeal (no. 1 BvR 1606/07) lodged by the Klambt-Verlag GmbH & Co. publishing company against an injunction, imposed by the Federal Court of Justice (judgment of 6 March 2007, no. VI ZR 52/06), on any further publication of a photo that had appeared in 7 Tage magazine showing the applicants on holiday in an unspecified location and accompanying a written and photographic report on the possibility of renting a holiday villa owned by the von Hannover family in Kenya. Those proceedings are the subject of a separate application by the first applicant to the Court (no. 8772/10).
41. The Federal Constitutional Court observed, firstly, that the court decisions constituted an interference with the first applicant’s right to the protection of her personality rights guaranteed by Articles 1 § 1 and 2 § 1 of the Basic Law. There were limits on the protection afforded to that right and on the freedom of the press, however. The freedom of the press was subject to the restrictions laid down in sections 22 et seq. of the Copyright Act and Article 8 of the Convention, whilst the provisions of the Copyright Act and Article 10 of the Convention limited the right to the protection of personality rights. In the German legal order the Convention had the status of an ordinary federal law. At constitutional-law level, the rights and freedoms guaranteed by the Convention and the Court’s case-law served as guides to interpretation when determining the content and scope of a fundamental right.
42. The Federal Constitutional Court reiterated the case-law of the Court regarding Articles 8 and 10 of the Convention and its own case-law on the different fundamental rights at stake by referring to the principles established in its leading judgment of 15 December 1999 (Von Hannover, cited above, § 25). It added that in so far as an image did not itself make any contribution to the formation of public opinion, its information value had to be assessed in the context of the accompanying article. However, if that article was merely a pretext for publishing a photo of a well-known person, no contribution was made to the formation of public opinion and there were therefore no grounds for allowing the interest in publication to prevail over the protection of personality rights.
43. The Federal Constitutional Court went on to say that, in order to determine the weight to be attached to the protection of personality rights, regard had to be had not only to the circumstances in which the photo had been taken, for example whether it had been taken surreptitiously or as a result of persistent hounding by photographers, but also to the situation in which the person concerned had been photographed and how he or she was portrayed. The right to protection of personality rights thus carried more weight where the photo showed details of the person’s private life that were not normally the subject of public discussion. The same was true where the person concerned could legitimately expect, having regard to the circumstances, that no photo would be published because he or she was in a private place (räumliche Privatheit), such as in a specially protected location. The right to protection of personality rights could also prevail over the interest in publication in cases other than those of spatial isolation, notably where the person concerned was pictured enjoying a moment of relaxation or letting go, freed from the constraints of professional or everyday life.
44. The Federal Constitutional Court stated that importance had to be attached in that connection to the allocation of procedural obligations regarding the presentation of the facts and the burden of proof. It had to be ensured that neither the press nor the person being photographed was prevented from adducing proof of circumstances relevant for the balancing of the competing interests. Where the press intended to publish a photo without the consent of the person concerned, it could be required to substantiate the circumstances in which the photo had been taken in order to allow the courts to examine the question whether publication of the photo could be opposed on grounds of the legitimate expectations of the person photographed.
45. The Federal Constitutional Court observed that it was the task of the civil courts to apply and interpret the provisions of civil law in the light of the fundamental rights at stake while having regard to the Convention. It added that its own role was limited to examining whether the lower courts had had sufficient regard to the impact of fundamental rights when interpreting and applying the law and when balancing the competing rights. Such was also the scope of the scrutiny of the Constitutional Court regarding the question whether the courts had fulfilled their obligation to incorporate the Court’s relevant case-law into the national legal order (Teilrechtsordnung). The fact that the court’s balancing exercise of the various rights in multi-polar disputes – that is, disputes involving the interests of several different persons – and complex ones could also result in a different outcome was not sufficient reason for requiring the Federal Constitutional Court to correct a court decision. However, there would be a violation of the Constitution if the protective scope (Schutzbereich) or extent of a fundamental right had been wrongly determined and the balancing exercise were accordingly flawed, or if the requirements under constitutional law or the Convention had not been duly taken into account.
46. Applying those principles to the case submitted to it, the Federal Constitutional Court observed that the Federal Court of Justice and the criteria it had established were constitutionally unobjectionable. It considered in particular that nothing, from a constitutional-law perspective, had prevented the Federal Court of Justice from departing from its own established case-law in the field and developing a new concept of protection. The fact that it had not itself called into question, in its leading judgment of 15 December 1999, the former concept of protection established by the Federal Court of Justice merely meant that this had been in conformity with constitutional-law criteria. It did not mean, by extension, that a different concept could not meet those criteria. The Federal Court of Justice had not been prevented, in particular, from dispensing with the legal concept of “figure of contemporary society” and instead balancing the competing interests when examining the question whether a photo was an aspect of contemporary society and could accordingly be published without the consent of the person concerned (unless it interfered with a legitimate interest of the latter).
47. Applying the criteria thus established to the photos in question, starting with the second and third ones on which an injunction had been imposed by the courts and then challenged by the publishing company Ehrlich & Sohn (see paragraph 40 above), the Federal Constitutional Court noted that the Federal Court of Justice had had regard to the fact that the second photo showed the applicant in a public place which was neither isolated nor out of public view. It had attached decisive weight, however, to the fact that the article concerned only the applicant’s skiing holiday, that is, a situation falling within the core area of private life and concerning the applicant’s need for peace and quiet, and the consequent lack of public interest other than satisfying public curiosity. Contrary to the submissions of the publishing company, the readers’ interest in the applicant’s fashionable ski suit did not amount to a public interest. Moreover, that aspect had not been mentioned anywhere in the article.
48. In the opinion of the Federal Constitutional Court, the same conclusion had to be drawn with regard to the third photo whose publication had been challenged by the first applicant. There had been no public interest, beyond merely satisfying public curiosity, in the information contained in either the article commenting on the first applicant and her husband’s trip to St Moritz to celebrate the latter’s birthday or the photo showing them both in a chairlift. Whilst the article had also mentioned the Rose Ball – an event which, according to the Federal Court of Justice, could possibly be regarded as an aspect of contemporary society – no link had been made between that event and the photo.
49. With regard to the first photo, the Federal Constitutional Court found that the Federal Court of Justice had had valid grounds for considering that the reigning Prince of Monaco’s ill-health was a matter of general interest and that the press had accordingly been entitled to report on the manner in which the prince’s children reconciled their obligations of family solidarity with the legitimate needs of their private life, among which was the desire to go on holiday. The conclusion reached by the Federal Court of Justice, according to which the photo that had been published had a sufficiently close link with the event described in the article, was constitutionally unobjectionable.
50. The Federal Constitutional Court pointed out that the Federal Court of Justice had indicated that the protection of personality rights could prevail in cases where the photo in question had been taken in conditions that were particularly unfavourable for the person concerned, for example where it had been taken surreptitiously or following continual harassment by photographers. However, the publishing company had given details about how the photo had been taken and the first applicant had not complained before the lower civil courts or the Federal Court of Justice that those details were insufficient. In particular, she had not alleged that the photo had been taken in conditions that were unfavourable to her.
51. The Federal Constitutional Court also dismissed the first applicant’s allegation that the Federal Court of Justice had disregarded or taken insufficient account of the Court’s case-law. Pointing out that a complaint of that nature could be raised in constitutional proceedings if it was based on a fundamental right guaranteed by the Basic Law, it observed that the Federal Court of Justice had taken account of the judgments delivered in Von Hannover, cited above, and Karhuvaara and Iltalehti v. Finland (no. 53678/00, ECHR 2004X) and had not failed to comply with its obligation to satisfy the criteria established by the Convention. The Federal Constitutional Court had undertaken an analysis of the Court’s relevant case-law and observed that the Court’s decisive criterion when balancing the competing rights was the question whether the report in its entirety (article and photo) contributed to the free formation of public opinion. Furthermore, a distinction had to be drawn between political figures, public figures and ordinary individuals. Whilst the latter enjoyed the greatest protection of the three groups, political figures could expect only a small degree of protection from media reports about themselves.
52. According to the Court’s case-law (Gurguenidze v. Georgia, no. 71678/01, § 57, 17 October 2006, and Sciacca v. Italy, no. 50774/99, § 27, ECHR 2005-I), the first applicant was a public figure, which allowed the press – where there was an interest in informing the public – to publish photos, even of the person going about his or her daily business in public. Publication of that sort, which, moreover, attracted the protection of Article 10 of the Convention, could serve to exercise public scrutiny over the private conduct of persons who were influential in the economic, cultural or media sectors. The Federal Constitutional Court pointed out that the Court had previously criticised the approach taken by domestic courts which had applied over-restrictive criteria to the question whether the media were or were not reporting matters of public interest when they reported on circumstances relating to the private life of a person who was not part of political life (Tønsbergs Blad A.S. and Haukom v. Norway, no. 510/04, § 87, 1 March 2007). It was sufficient that the report concerned, at least to some degree, important matters relating to politics or another sphere (Karhuvaara and Iltalehti, cited above, § 45).
53. The Federal Constitutional Court concluded that the Federal Court of Justice had found in the present case that the report in question concerned important subjects in a democratic society. In its Von Hannover judgment, cited above, the Court had not categorically excluded the possibility that a report contributing to a debate about questions of interest to the public could be illustrated by photos showing a scene from the daily life of a political or public figure. Even though the Court had concluded in Von Hannover that the photos in question had not been of information valueand having regard to the Court’s case-law – that the photo in question was of information value was constitutionally unobjectionable.
54. On an unspecified date, the first applicant sought an injunction in the Hamburg Regional Court against any further publication of the photo that had appeared in the magazine Frau Aktuell, issue no. 9/02 of 20 February 2002.
55. In a judgement of 1 July 2005, the Regional Court granted the applicant’s request.
56. In a judgment of 13 December 2005, the Hamburg Court of Appeal allowed an appeal lodged by the publishing company and set aside the Regional Court’s judgment.
57. In a judgment of 6 March 2007 (no. VI ZR 14/06), the Federal Court of Justice dismissed an appeal by the first applicant on the same grounds as those set out in its judgment of the same date (no. VI ZR 51/06 – see paragraphs 28-39 above). It stated that the first applicant had not argued before it – and nor was there anything to suggest – that the photo had been taken surreptitiously or with equivalent secret technical devices such as to render its publication unlawful.
58. In a decision of 16 June 2008 (no. 1 BvR 1625/07), a three-judge panel of the Federal Constitutional Court declined, without giving reasons, to entertain a constitutional appeal lodged by the first applicant.
59. On 30 November 2004 the second applicant sought an injunction in the Hamburg Regional Court against any further publication by the Ehrlich & Sohn GmbH & Co. KG publishing company of the three photos that had appeared in the magazine Frau im Spiegel.
60. In a judgment of 1 July 2005, the Regional Court granted the injunction.
61. In a judgment of 31 January 2006, the Hamburg Court of Appeal allowed an appeal by the publishing company.
62. In a judgment of 6 March 2007 (no. VI ZR 50/06), the Federal Court of Justice dismissed an appeal on points of law by the second applicant in respect of the first photo. With regard to the second and third photos, it allowed the appeal, quashed the judgment of the Court of Appeal and reinstated the injunction imposed by the Regional Court. It based its conclusions on the same grounds as those set out in its judgment no. VI ZR 51/06 of the same day (see paragraphs 28-39 above). With regard to the second applicant’s high profile, it upheld the opinion of the Court of Appeal that he was well known to the public, in particular as the husband of the first applicant who was especially the subject of public attention.
63. In a decision of 16 June 2008 (no. 1 BvR 1624/07), a three-judge panel of the Federal Constitutional Court declined, without giving reasons, to entertain a constitutional appeal lodged by the second applicant.
64. On 29 November 2004 the second applicant sought an injunction in the Hamburg Regional Court against any further publication by the WZV Westdeutsche Zeitschriftenverlag GmbH & Co KG publishing company of the photo that had appeared in the magazine Frau Aktuell.
65. In a judgment of 24 June 2005, the Regional Court granted the injunction.
66. In a judgment of 13 December 2005, the Hamburg Court of Appeal allowed an appeal by the publishing company.
67. In a judgment of 6 March 2007 (no. VI ZR 13/06), the Federal Court of Justice dismissed an appeal on points of law lodged by the second applicant on the same grounds as those set out in its judgment of the same date (no. VI ZR 14/06 – see paragraph 57 above).
68. In a decision of 16 June 2008 (no. 1 BvR 1622/07), a three-judge panel of the Federal Constitutional Court declined, without giving reasons, to entertain a constitutional appeal lodged by the second applicant.
69. The relevant provisions of the Basic Law provide as follows.
“The dignity of human beings is inviolable. All public authorities have a duty to respect and protect it.”
“Everyone shall have the right to the free development of their personality provided that they do not interfere with the rights of others or violate the constitutional order or moral law [Sittengesetz].”
“1. Everyone shall have the right freely to express and disseminate his or her opinions in speech, writing and pictures and freely to obtain information from generally accessible sources. Freedom of the press and freedom of reporting via the radio, television and cinema shall be guaranteed. There shall be no censorship.
2. These rights shall be subject to the limitations laid down by the provisions of the general laws and to statutory provisions for the protection of young people and to the obligation to respect personal honour [Recht der persönlichen Ehre].”
70. Section 22(1) of the Copyright (Arts Domain) Act (Gesetz betreffend das Urheberrecht an Werken der bildenden Künste und der Photographie) provides that images can only be disseminated with the express consent of the person concerned. Section 23(1)(1) of the Act provides for exceptions to that rule, where the images portray an aspect of contemporary society (Bildnisse aus dem Bereich der Zeitgeschichte) on condition that publication does not interfere with a legitimate interest (berechtigtes Interesse) of the person concerned (section 23(2)).
71. The relevant passages of this Resolution, adopted by the Parliamentary Assembly of the Council of Europe on 26 June 1998, read as follows.
“1. The Assembly recalls the current affairs debate it held on the right to privacy during its September 1997 session, a few weeks after the accident which cost the Princess of Wales her life.
2. On that occasion, some people called for the protection of privacy, and in particular that of public figures, to be reinforced at the European level by means of a convention, while others believed that privacy was sufficiently protected by national legislation and the European Convention on Human Rights, and that freedom of expression should not be jeopardised.
3. In order to explore the matter further, the Committee on Legal Affairs and Human Rights organised a hearing in Paris on 16 December 1997 with the participation of public figures or their representatives and the media.
4. The right to privacy, guaranteed by Article 8 of the European Convention on Human Rights, has already been defined by the Assembly in the declaration on mass communication media and human rights, contained within Resolution 428 (1970), as ‘the right to live one’s own life with a minimum of interference’.
5. In view of the new communication technologies which make it possible to store and use personal data, the right to control one’s own data should be added to this definition.
6. The Assembly is aware that personal privacy is often invaded, even in countries with specific legislation to protect it, as people’s private lives have become a highly lucrative commodity for certain sectors of the media. The victims are essentially public figures, since details of their private lives serve as a stimulus to sales. At the same time, public figures must recognise that the position they occupy in society – in many cases by choice – automatically entails increased pressure on their privacy.
7. Public figures are persons holding public office and/or using public resources and, more broadly speaking, all those who play a role in public life, whether in politics, the economy, the arts, the social sphere, sport or in any other domain.
8. It is often in the name of a one-sided interpretation of the right to freedom of expression, which is guaranteed in Article 10 of the European Convention on Human Rights, that the media invade people’s privacy, claiming that their readers are entitled to know everything about public figures.
9. Certain facts relating to the private lives of public figures, particularly politicians, may indeed be of interest to citizens, and it may therefore be legitimate for readers, who are also voters, to be informed of those facts.
10. It is therefore necessary to find a way of balancing the exercise of two fundamental rights, both of which are guaranteed in the European Convention on Human Rights: the right to respect for one’s private life and the right to freedom of expression.
11. The Assembly reaffirms the importance of every person’s right to privacy, and of the right to freedom of expression, as fundamental to a democratic society. These rights are neither absolute nor in any hierarchical order, since they are of equal value.
12. However, the Assembly points out that the right to privacy afforded by Article 8 of the European Convention on Human Rights should not only protect an individual against interference by public authorities, but also against interference by private persons or institutions, including the mass media.
13. The Assembly believes that, since all member States have now ratified the European Convention on Human Rights, and since many systems of national legislation comprise provisions guaranteeing this protection, there is no need to propose that a new convention guaranteeing the right to privacy should be adopted.
...”
72. The Resolution of the Committee of Ministers (CM/ResDH(2007)124), including the Appendix (extracts), adopted on 31 October 2007 at the 1007th meeting of the Ministers’ Deputies, is worded as follows:
“The Committee of Ministers, under the terms of Article 46, paragraph 2, of the Convention for the Protection of Human Rights and Fundamental Freedoms, which provides that the Committee supervises the execution of final judgments of the European Court of Human Rights (hereinafter ‘the Convention’ and ‘the Court’);
Having regard to the judgments transmitted by the Court to the Committee once they had become final;
Recalling that the violation of the Convention found by the Court in this case concerns a breach of the right to respect for private life of the applicant, Princess Caroline von Hannover, the eldest daughter of Prince Rainier III of Monaco, on account of [the] German courts’ refusal of her requests to prohibit publication of a series of photographs of her (see details in Appendix);
Having invited the government of the respondent State to inform the Committee of the measures taken to comply with Germany’s obligation under Article 46, paragraph 1, of the Convention to abide by the judgment;
Having examined the information provided by the government in accordance with the Committee’s Rules for the application of Article 46, paragraph 2, of the Convention;
Having satisfied itself that, within the time-limit set, the respondent State paid the applicant the just satisfaction provided in the judgment (see details in Appendix);
Recalling that a finding of violations by the Court requires, over and above the payment of just satisfaction awarded in the judgment, the adoption by the respondent State, where appropriate, of
– individual measures to put an end to the violations and erase their consequences so as to achieve as far as possible restitutio in integrum; and
– general measures, preventing similar violations;
DECLARES, having examined the measures taken by the respondent State (see Appendix), that it has exercised its functions under Article 46, paragraph 2, of the Convention in this case and
DECIDES to close the examination of this case.
Appendix to Resolution CM/ResDH(2007)124
Information about the measures to comply with the judgment in the case of
...
I. Payment of just satisfaction and individual measures
...
b) Individual measures
Although it is possible under German law, the applicant did not take action to prevent further publication of the photographs in question after the European Court’s judgment, but took action against a similar photograph (see under “General Measures”, No. 4) below. According to information available to the Secretariat, the photographs at issue in the European Court’s judgment have not been reprinted by the German press.
II. General measures
– Publication and dissemination of the judgment of the European Court: The judgment has been widely published and discussed by the German legal community. As is the case with all judgments of the European Court against Germany it is publicly available via the website of the Federal Ministry of Justice (www.bmj.de, Themen: Menschenrechte, EGMR) which provides a direct link to the Court’s website for judgments in German (www.coe.int/T/D/Menschenrechtsgerichtshof/Dokumente_auf _Deutsch/). Furthermore, the judgment was disseminated by letter of the Government Agent to the courts and justice authorities concerned.
– Change of domestic case-law: When deciding upon similar cases, domestic courts have taken into account the judgment of the European Court, thus giving it direct effect in German law:
1) The partner of a famous singer successfully sued at the Berlin Court of Appeal (KG Urt. v. 29.10.2004, 9 W 128/04, Neue Juristische Wochenschrift, NJW, 2005, pp. 605-07).
2) The Convention’s principles as set out in the European Court’s judgments were also acknowledged, even though they were not directly relevant to the case, in a judgment of the Hamburg District Court forbidding commercial exploitation of the popularity of former Chancellor Schröder (AG Hamburg, Urt. v. 2.11.2004, 36A C 184/04, NJW-RR 2005, pp. 196-98).
3) On the basis of the judgment of the European Court, the German Federal Civil Court upheld a judgment allowing the publication of an article about fining the applicant’s husband for speeding on a French motorway. The Court stated that the public had a justified interest in this information as it constitutes an offence, making this behaviour the topic of a public discussion (BGH, Urt. v. 15.11.2005, VI ZR 286/04, available via www.bundesgerichtshof.de).
4) Concerning the applicant herself, in July 2005, the regional court of Hamburg (Landgericht), referring to the judgment of the European Court, decided in favour of the applicant, prohibiting the publication of a photograph showing her together with her husband in a St Moritz street during a skiing holiday. However, in December 2005, the second instance (Appeal Court of Hamburg, Oberlandesgericht) reversed this decision, basing its judgment rather on the case-law of the German Federal Constitutional Court (Bundesverfassungsgericht). Upon revision to the Federal Civil Court (Bundesgerichtshof) sought by the applicant, the Federal Civil Court on 6 March 2007 decided that the photograph in question may be published. In its reasoning the domestic court, balancing the different interests at stake, explicitly took into account the Convention’s requirements as set out in the European Court’s judgment (BGH, Urt. v. 6.3.2007, VI ZR 14/06 available via www.bundesgerichtshof.de).
...”
NON_VIOLATED_ARTICLES: 8
NON_VIOLATED_PARAGRAPHS: 8-1


ITEMID: 001-5344
LANGUAGEISOCODE: ENG
RESPONDENT: GRC
BRANCH: ADMISSIBILITY
DATE: 2000
DOCNAME: MOUSHOURI v. GREECE
IMPORTANCE: 4
CONCLUSION: Inadmissible
TEXT: The applicant is a Greek national, born in 1949 and living in Varkiza in Attika. She is represented before the Court by Mr M. Angelopoulos, a lawyer practising in Athens.
The facts of the case, as submitted by the parties, may be summarised as follows.
On 5 October 1990 the applicant filed a suit against the X Club before the single-member first instance civil court (monomeles protodikio) of Athens about unfair dismissal submitting, inter alia, that her compensation had not been calculated correctly.
The case was heard on 14 January 1991.
On 21 March 1991 the court found in favour of the applicant declaring her dismissal null and void and ordering the defendant to pay her 630,000 drachmas, by way of salary arrears, and part of her costs and expenses. The applicant served the decision on the X Club on 28 May 1991.
On 28 June 1991 the X Club appealed. The appeal was heard on 29 October 1991.
On 26 November 1991 the Court of Appeal (Efetio) of Athens upheld the appeal and considered that there was no unfair dismissal. According to the court, the applicant had changed duties before her dismissal; as a result, the X Club, when calculating her compensation, was not obliged to take into consideration a special allowance attaching to her previous duties.
On 9 April 1992 the applicant appealed in cassation. A hearing was fixed for 30 March 1993. On 22 February 1993 the applicant submitted additional grounds of appeal. On 11 March 1993 the judge rapporteur submitted his report. On 30 March 1993 the court decided to adjourn the examination of the appeal at the parties’ request. The appeal was heard on 22 February 1994. On 31 March 1994 the Court of Cassation (Arios Pagos) quashed the judgment of the Court of Appeal considering that the latter had ignored some evidentiary material. The case was sent back to the Court of Appeal for re-examination.
On 25 April 1994 the applicant asked the Court of Appeal to fix a hearing. The case was due to be heard on 7 June 1994 but the lawyers were on strike. On 20 June 1994 the applicant asked the court to fix a new hearing date. On 15 November 1994 the court adjourned the examination of the case. On 10 January 1995 the applicant’s case was heard by the Court of Appeal, composed of different judges from those that had issued the judgment of 26 November 1991. On 13 February 1995 the Court of Appeal found in favour of the X Club considering that the applicant had accepted that she had changed duties before her dismissal and that she was not entitled to the special allowance. Although the applicant was entitled to another allowance, the X Club had not acted in bad faith in failing to take the latter into consideration when calculating her compensation. As a result, although the applicant could claim additional compensation, her dismissal was not null and void.
On 26 April 1995 the applicant appealed in cassation for the second time. The Court of Cassation heard the appeal on 26 September 1995 and on 21 November 1995 it quashed again the judgment of the Court of Appeal on the ground that its reasoning was contradictory, vague and inadequate. The case was sent back to the Court of Appeal for re-examination.
On 12 December 1995 the applicant asked the Court of Appeal to fix a hearing. The Court of Appeal heard the appeal on 13 February 1996 and on 21 May 1996 it found again in favour of the X Club because the applicant, prior to her dismissal, had accepted that she should not be receiving any of the allowances in question.
On 12 September 1996 the applicant appealed in cassation for a third time. The Court of Cassation heard the appeal on 18 February 1997 and dismissed it on 24 June 1997. The text of the jugement was finalised on 2 July 1997. It was signed by the President on 22 August 1997. The X Club served the judgment on the applicant on 12 September 1997.


ITEMID: 001-4806
LANGUAGEISOCODE: ENG
RESPONDENT: FIN
BRANCH: ADMISSIBILITY
DATE: 1999
DOCNAME: LEHTINEN v. FINLAND
IMPORTANCE: 1
CONCLUSION: Inadmissible
JUDGES: Georg Ress
TEXT: The applicant is a Finnish national, born in 1950 and living in Järvenpää.
The facts of the case, as submitted by the parties, may be summarised as follows.
A.
On 7, 9 and 14 February 1995, the police of Vantaa searched the premises of the applicant’s limited liability company Järvenpään Yrityspalvelu Oy and his home. The warrant indicated that the search was to take place at the address of the aforementioned company, on the premises of “other companies” at the same address and at the applicant’s home address. The search also concerned the company’s computers. It aimed at collecting evidence relating to an aggravated fraud and a book-keeping offence suspected to have been committed by the applicant between 5 June 1991 and 25 May 1994. Certain material was seized, of which a record was drawn up. On 10 February 1995, part of the seized material was returned to the applicant.
On 12 February 1995, the applicant lodged a petition with the Parliamentary Ombudsman (eduskunnan oikeusasiamies, riksdagens ombudsman, hereinafter “the Ombudsman”) concerning the search on 7 and 9 February. He requested that the Ombudsman investigate whether the economic crime investigators of the Vantaa Police had acted in accordance with law and good practice. Furthermore, he requested that the Ombudsman take proper action in order that the police be held liable for the legal consequences. He stated that the police seized, for the purpose of copying, twelve files with personal documents, of which nine had been returned. He drew attention to the dates indicated in the search warrant. He stated that, although not mentioned in the search warrant, he had been informed orally that the suspicions concerned aiding and abetting economic crime involving Lehtikarin Kirjapaino, a company he had been advising as an accountant and tax adviser.
The applicant’s petition contained five subheadings regarding the search and seizure. Firstly, he complained that the investigators had misbehaved. Secondly, he submitted that the seized documents did not pertain to the crime under investigation. As an example, he gave a private letter to the secretary of a political party, dated 31 January 1995. Thirdly, he maintained that one of the police officers had read correspondence, sent by telefax, between himself and his lawyer, dated in December 1994 and in 1995. Furthermore, that officer had perused his calendar for 1995 and his notebook. Fourthly, he stated that the police had seized, by copying, a considerable amount of computerised information, which was not relevant to the crime under investigation. Lastly, he pointed out that the seized material was required for his daily business. He requested that the Ombudsman order the police to return all the seized material and to destroy all the copies thereof.
In February 1995, the Ombudsman asked the officers concerned, and their superiors, to give their comments on the petition. He received their answers by May 1995. According to the statement given by the National Police Department of the Ministry of the Interior, the goal of the search had been to find documents and bookkeeping material relating to an economic crime under investigation. The material did not contain any documents which could not be seized and used as evidence. One of the officers had read a telefax message between the applicant and his lawyer “in order to verify that it concerned only the trial pending” against the applicant at the time and not “the offence under investigation”. Moreover, the lawyer in question had not been assisting the applicant before the court during the then pending trial. The telefax had not been seized.
By March 1995, the rest of the seized material was returned to the applicant.
On 7 February 1996, the applicant supplemented his petition to the Ombudsman with a written statement given by an officer of the Central Criminal Police. On 6 February 1996, the officer had questioned the applicant as a witness in a case involving two companies other than the company mentioned in the search warrant. The officer confirmed that he had then presented to the applicant written material that the officers of the Vantaa Police had obtained, on 14 February 1995, during the search of the applicant’s office “relating to another pre-trial investigation”. The applicant submitted that the use of the seized material in connection with other investigations was not acceptable. He maintained, referring to the Niemietz v. Germany case (Niemetz v. Germany judgment of 16 December 1992, Series A no. 251-B), that the seizure amounted to a violation of his human rights. He further complained that since the search had been reported in local daily papers, his commissions had reduced, causing considerable financial losses to his business. He renewed his request concerning, firstly, a charge of an offence in office and, secondly, the destroying of the seized material.
The applicant was charged with aiding and abetting an offence of debtor’s dishonesty and a bookkeeping offence. The court proceedings started on 21 February 1996. He was acquitted on both counts.
On 4 April 1997, the Deputy Ombudsman, referring to the comments made by the officers concerned and their superiors, found no reason to suspect that the measures taken in connection with the search and seizure had been either unlawful or otherwise incorrect. Therefore, she found that the petition did not require any further steps on her part.
The applicant has not challenged the seizure before the court of first instance under chapter 4, section 13, of the Coercive Means of Criminal Investigation Act 1987 (pakkokeinolaki, tvångsmedelslagen 450/1987, hereinafter “the Coercive Means Act”, see relevant domestic law). He has also not instituted any proceedings concerning a claim for damages as he has stated that he is not yet able to estimate the amount of the possible damages.
B. Relevant domestic law and practice

Under chapter 4, section 1, of the Coercive Means Act, an object may be seized where there are reasons to presume that it may serve as evidence in criminal proceedings. According to chapter 4, section 9, a record shall be kept of the seizure. The purpose of the seizure and the measures taken shall be duly recorded and the seized objects listed therein. According to chapter 4, section 11, a seizure shall be rescinded as soon as it is no longer necessary. The seizure shall also be rescinded if no charges are brought for the offence leading to the seizure within four months of the date of the seizure of the object. Under chapter 5, section 1, a search may be carried out for the purpose of finding the object to be seized or investigating a circumstance relevant to the offence. It is necessary that there be reason to suspect that an offence has been committed for which the most severe penalty provided is imprisonment for more than six months.
Chapter 4, section 13, of the Coercive Means Act reads as follows:
(translation from Finnish)
“At the request of a person whom the case concerned, the court shall decide whether the seizure shall remain in force. A request that has been submitted to the court before its examination of the charges shall be considered within a week from its reception by the court. ... A court decision on seizure shall be subject to separate appeal.”
According to section 40 of the Pre-trial Investigation Act, the material accumulated during a pre-trial investigation shall be collected in a file, if this is considered necessary for further consideration of the case. The file shall include the interrogation records as well as documents and recording assumed to be of importance. It shall also indicate the measures taken during the investigation and any material not included in the file.

Under the 1919 Constitution (Suomen Hallitusmuoto, Regeringsform för Finland) anyone whose rights have been infringed and who has suffered damage as a result of an illegal act, or by the negligence of a civil servant, is entitled to prosecute the civil servant, or demand that he or she be prosecuted, and to claim damages (Article 93).
According to the 1889 Penal Code (rikoslaki, strafflag), a civil servant who, by intent or neglect or carelessness, acts or omits to act in breach of his or her professional duties as provided for in statute or regulation is liable to punishment, if the act or omission is not insignificant, having regard to the damage caused and other circumstances (chapter 40, section 10 and 11).
Under the 1974 Damage Compensation Act (vahingonkorvauslaki, skadeståndslag 412/1974) proceedings may be brought against the State in respect of damage resulting from fault or neglect by its employees in the performance of their duties (chapters 3 and 4).
According to rule 7 of the Instruction to the Ombudsman (Eduskunnan oikeusasiamiehen johtosääntö, Instruktion för riksdagens justitieombudsman 10.1.1920/2), if the Ombudsman receives a petition against a public official or authority concerning a matter falling within his area of competence, he or she is to carry out an investigation. If the Ombudsman suspects that the person or authority concerned has committed an unlawful act or default calling for his intervention, he or she must inform and hear that person or authority. The Ombudsman, however, has no power to quash or amend decisions made by administrative or judicial authorities. The most severe measure the Ombudsman can use is to bring criminal charges, or order criminal charges to be brought, before a court against any public servant within his jurisdiction for misconduct in office. This measure is used relatively seldom (three out of 2674 decisions in 1997, none out of 2361 decisions in 1998; see the Reports of the Parliamentary Ombudsman on his activities in 1997, p. 303, and in 1998, p. 310 (Eduskunnan oikeusasiamiehen kertomus toiminnastaan, Riksdagens justitieombudsmans berättelse över sin verksamhet)). Clearly illegal or improper conduct may lead to a reprimand by the Ombudsman (17 in 1997 and nine in 1998, see the above-cited Reports). The Ombudsman may also express critical views of the impropriety of the conduct of an authority or public servant, for future reference on a matter.


ITEMID: 001-111419
LANGUAGEISOCODE: ENG
RESPONDENT: GEO
BRANCH: CHAMBER
DATE: 2012
DOCNAME: CASE OF DADIANI AND MACHABELI v. GEORGIA
IMPORTANCE: 4
CONCLUSION: Violation of Article 6 - Right to a fair trial (Article 6 - Enforcement proceedings;Article 6-1 - Reasonable time)
JUDGES: Alvina Gyulumyan;Corneliu Bîrsan;Egbert Myjer;Ineta Ziemele;Josep Casadevall;Kristina Pardalos;Nona Tsotsoria
TEXT: 5. The applicants, Mrs Elene Dadiani and Mr David Machabeli, were born in 1923 and 1964 respectively and live in Tbilisi. The second applicant is the first applicant’s nephew. The first applicant’s mother was deprived of her land and other assets by the Soviet authorities in the 1920s.
6. In 2004 the applicants brought an action against the relevant local authority, seeking restitution of their ancestral lands. In support of their claim, the applicants submitted archives confirming their ancestor’s title to the claimed land and, as a legal basis, referred to general rules on the protection of property and inheritance contained in the Civil Code, the Constitution and the international human-rights treaties ratified by Georgia.
7. In a judgment of 31 January 2005, the Gurjaani District Court established the applicants’ joint ownership of land situated in the village of Bakurtsikhe. The land was officially identified as “plot no. 604”. The defendant local authorities did not lodge an appeal and the judgment became binding.
8. On 15 February 2005 the applicants’ lawyer obtained from the Gurjaani District Court the necessary enforcement writ, the relevant part of which read as follows:
“Elene Dadiani and David Machabeli are hereby recognised as ... the co-owners of plot no. 604 in the village of Bakurtsikhe.” ...
9. On 26 October 2005 the applicants, acting through their lawyer, submitted a copy of the enforcement writ together with the final judgment of 31 January 2005 to the Gurjaani Public Registry for enforcement. In a letter of 2 November 2005, the registrar replied that it was not possible to register the land in the applicants’ name, as their documentation was incomplete. The lawyer was found to be at fault for the fact that the final judgment neither indicated the size of plot no. 604 nor specified its category: agricultural or non-agricultural. The lawyer was further invited to submit a copy of his identity document, the authority form proving his right to represent the applicants, the original enforcement writ and the cadastral plan of the land in question.
10. The applicants maintained, relying on the billing information from the lawyers for the relevant period of time, that after receipt of the letter of 2 November 2005 the lawyers, acting on their behalf, had visited the Gurjaani Public Registry on several occasions and voiced their concerns regarding the failure to enforce the judgment. They claimed, inter alia, that they were not in a position to produce an amended final court decision. In reply, the Gurjaani Public Registry refused to register plot no. 604 for various reasons.
11. The judgment of 31 January 2005 still remains unenforced.
12. On 25 May 2005 the applicants lodged another action claiming, on the same legal basis, ownership of plot no. 646, adjacent to plot no. 604. The action was registered by the Gurjaani District Court on the same day.
13. According to the applicants, the examination of their second action has not started yet.
14. The relevant domestic law and practice as regards the restitution of property has been described in the case of Teimuraz Andronikashvili v. Georgia (no. 9297/08, 22 June 2010) and Klaus and Yuri Kiladze v. Georgia (no. 7975/06, §§ 23 and 25-26, 2 February 2010).
15. The National Public Registry Agency is a legal entity governed by public law established under the Ministry of Justice. One of its main functions is to register ownership title and other related rights over real property for the purpose of their recognition and verification. The Public Registry Agency is responsible, among other things, for the creation and maintenance of cadastral data on real property.
16. Under section 5 (b) of the Land Act, the registrar was entitled to request the submission of any document necessary for land registration purposes. The interested party had to comply with the registrar’s request immediately.
17. Article 1005 § 1 of the Civil Code provides that damage done to an individual by either negligence or deliberate misconduct of a public servant must be compensated by the State.
18. Under Article 381 of the Criminal Code, the non-execution of a judicial decision constitutes an offence:
“The non-execution of a binding judicial decision, or other judicial decision, or the obstruction of its execution by the State, government or local-government officials, or by the executives of a corporation or other organisations [shall be punished] ...”
19. Pursuant to Article 3 § 4 (g) of the General Administrative Code of Georgia, the Code does not apply to those activities of the executive that are related to the enforcement of final court judgments.
20. In accordance with Article 177 § 3 of the General Administrative Code, a complaint may be filed against any action of an administrative agency pursuant to the procedure prescribed for filing a complaint in respect of an administrative legal act.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-102235
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: CHAMBER
DATE: 2010
DOCNAME: CASE OF TAYMUSKHANOVY v. RUSSIA
IMPORTANCE: 3
CONCLUSION: Preliminary objection joined to merits and dismissed (non-exhaustion of domesic remedies);Violation of Art. 2 (substantive aspect);Violation of Art. 2 (procedural aspect);Violation of Art. 3 (substantive aspect);No violation of Art. 3 (substantive aspect);Violation of Art. 5-1;Violation of Art. 13+2;Pecuniary damage and non-pecuniary damage - award
JUDGES: Anatoly Kovler;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;George Nicolaou;Giorgio Malinverni;Sverre Erik Jebens
TEXT: 5. The first applicant was born in 1956. The second and third applicants were born in 2001 and 2003, respectively. They live in the village of Prigorodnoe, the Groznenskiy District, in the Chechen Republic.
6. The first applicant is the mother of Mr Ruslan Taymuskhanov, born in 1981. Ruslan Taymuskhanov is the father of the second and third applicants.
7. On the morning of 30 December 2002 the first applicant, Ruslan Taymuskhanov and Mr Z., a police officer, were driving home in a UAZ SUV vehicle. At some point they passed by the village of Starye Atagi, where the special task force units of the Chechen Republic and the Russian federal troops had been carrying out a special “sweeping” operation.
8. At the military checkpoint near Starye Atagi federal servicemen stopped the UAZ SUV car. Some of the servicemen were wearing masks and camouflage uniforms; they all spoke Russian. The servicemen ordered the first applicant, Ruslan Taymuskhanov and Mr Z. to get out of the car, searched them and tied Ruslan Taymuskhanov and Mr Z.'s arms behind their backs.
9. The servicemen put the first applicant, Ruslan Taymuskhanov and Mr Z. in a UAZ minivan. The first applicant noticed that its registration number contained the digits “655”. The minivan drove off in the direction of Grozny. It was followed by a Gazel vehicle. While the minivan was moving, one of the servicemen made a phone call. The first applicant overheard the words “woman, woman”. Shortly afterwards the servicemen pushed her out of the minivan.
10. The first applicant lost consciousness as a result of the fall. Some passers-by discovered her lying by the side of the road and took her home. Four or five hours later the first applicant recovered her senses.
11. At some point Mr Z. was thrown out of the UAZ minivan.
12. The first applicant has not seen her son since.
13. At about 11 a.m. on 30 December 2002 in the vicinity of the village of Starye Atagi unidentified armed persons wearing camouflage uniforms abducted Ruslan Taymuskhanov and took him away to an unknown destination.
14. At some point Mr D., Mr Z.'s uncle, suggested that the first applicant contact Mr G., the head of the special task force unit who had been in charge of the special “sweeping” operation of 30 December 2002 in Starye Atagi. Mr G. promised to release Ruslan Taymuskhanov, but then left for a business trip; at some point he died. Later Mr G.'s deputy denied that Ruslan Taymuskhanov had been arrested.
15. On 31 March 2003 the prosecutor's office of the Groznenskiy District (“the district prosecutor's office”) instituted an investigation in case no. 42061 into the kidnapping of Ruslan Taymuskhanov.
16. On 21 April 2003 the first applicant complained about her son's abduction to the prosecutor's office of the Chechen Republic and the military prosecutor's office of the United Group Alignment (“the UGA prosecutor's office”).
17. On 24 April 2003 the prosecutor's office of the Chechen Republic forwarded the first applicant's complaint to the district prosecutor's office.
18. On 30 April 2003 the UGA prosecutor's office forwarded the first applicant's complaint to the prosecutor's office of Grozny.
19. On 30 November 2003 the district prosecutor's office suspended the investigation in case no. 42061 for failure to identify those responsible.
20. On 5 March 2004 the district prosecutor's office issued a report stating the following. At about 11 a.m. on 30 December 2002 in the area of Starye Atagi unidentified masked persons in camouflage uniforms armed with machine guns had arrested Ruslan Taymuskhanov and taken him away to an unknown destination. The whereabouts of the missing person had not been established. On 31 March 2003 the district prosecutor's office had opened an investigation into the kidnapping in case no. 42061. Ruslan Taymuskhanov's wife had been granted victim status.
21. On 10 June 2005 the prosecutor's office of the Chechen Republic forwarded a letter from the first applicant to the district prosecutor's office and requested an update on progress in the investigation.
22. On 18 June 2005 the district prosecutor's office informed the first applicant that an investigation into Ruslan Taymuskhanov's kidnapping had been opened under the number 42061 and that measures were being taken to establish her son's whereabouts.
23. On 8 September 2005 the first applicant wrote to the district prosecutor's office describing the circumstances of her son's abduction and asking for the incident to be investigated.
24. On 15 September 2005 the Groznenskiy District Court, on the first applicant's request, declared Ruslan Taymuskhanov missing.
25. On 3 October 2005 the first applicant was informed that her son had not been held in any of the penitentiary facilities of the Rostov Region.
26. On 20 October 2005 the prosecutor's office of the Chechen Republic informed the first applicant that the investigation was pending with the district prosecutor's office.
27. On 24 October 2005 and 25 February 2006 the prosecutor's office of the Chechen Republic forwarded the first applicant's complaints to the district prosecutor's office.
28. On 3 March 2006 the district prosecutor's office informed the first applicant that the investigation in case no. 42061 into her son's kidnapping had been commenced on 31 March 2003 and had then been suspended on an unspecified date. However, measures were being taken to find Ruslan Taymuskhanov and his kidnappers.
29. On 10 July 2006 the first applicant requested the district prosecutor's office to grant her victim status, to provide her with copies of the decisions on the institution and suspension of the investigation, to allow her access to the case file and to keep her updated on any progress in the proceedings.
30. On 8 September 2006 the SRJI requested an update on case no. 42061 from the district prosecutor's office.
31. It is not clear whether the investigation in case no. 42061 has been completed to date.
32. On 21 March 2003 the district prosecutor's office received a complaint from the first applicant about the disappearance of her son.
33. Between 24 and 31 March 2003 requests were sent to the heads of law-enforcement units to establish whether any special operations had been carried out in Starye Atagi on 30 December 2002 and whether Ruslan Taymuskhanov had been arrested or involved in the activities of illegal armed groups.
34. On 31 March 2003 the district prosecutor's office instituted criminal proceedings in case no. 42061 under Article 126 § 2 of the Russian Criminal Code (aggravated kidnapping).
35. On 15 April 2003 the first applicant was granted victim status and questioned.
36. On 22 April 2003 the prosecutor's office of the Chechen Republic received a statement from the first applicant concerning her conversation with Mr G.
37. On 28 April 2003 the district prosecutor's office ordered the police to establish Mr Z.'s whereabouts and to identify the owners of the UAZ minivan and Gazel vehicle.
38. On 27 May 2003 the Ministry of the Interior of the Chechen Republic received instructions to carry out an internal inquiry into the kidnapping of Ruslan Taymuskhanov and the head of the Groznenskiy district department of the Federal Security Service (“FSB”) was ordered to establish the identities of the kidnappers and witnesses to the crime. The replies, received on unspecified dates, indicated that there was no information concerning the first applicant's son's whereabouts and that no witnesses had been found.
39. On 31 May 2003 the investigation in case no. 42061 was suspended for failure to identify those responsible.
40. On 29 August 2003 the district prosecutor's office quashed the decision of 31 May 2003 and resumed the investigation.
41. On 10 September 2003 the Ministry of the Interior of the Chechen Republic was ordered to establish the identity of Mr Z. and to carry out an internal inquiry into Mr Z.'s arrest.
42. The district prosecutor's office asked whether a UAZ minivan with registration number “566” had been owned by the Ministry of the Interior of the Chechen Republic. The reply received was negative.
43. On 20 and 21 September 2003 the district prosecutor's office requested the heads of the task force unit of the Ministry of the Interior of the Chechen Republic and of the Groznenskiy district department of the FSB to establish whether Ruslan Taymuskhanov had been arrested or involved in the activities of illegal armed groups. The replies received indicated that the first applicant's son had not been arrested and there was no information on his involvement in illegal armed groups.
44. On 22 September 2003 the first applicant was again questioned as a victim.
45. On 6 and 17 October 2003 the district prosecutor's office requested several law-enforcement agencies to submit information on the whereabouts of Ruslan Taymuskhanov and Mr Z. and to establish whether servicemen of the task force unit of the Ministry of the Interior of the Chechen Republic had been involved in the applicants' relative's kidnapping. It followed from the replies received that no such involvement had been established.
46. On 30 October 2003 the investigation in case no. 42061 was suspended for failure to identify those responsible.
47. On 1 October 2005 the district prosecutor's office quashed the decision of 30 October 2003 and resumed the investigation.
48. On 11 October 2005 Ms D., the wife of Ruslan Taymuskhanov and the mother of the second and third applicants, was granted victim status and questioned.
49. On 12 October 2005 Mr V.G., the head of the local authority of Starye Atagi, was questioned as a witness. He submitted that in December 2002, before New Year's Eve, a special operation had been carried out by the task force unit of the Chechen Republic in his village for some ten or twelve days. Several villagers had been arrested but none of them had disappeared. Mr V.G. vaguely recollected that two men had been kidnapped near Starye Atagi on 30 December 2002 but in his opinion servicemen of the task force unit had not been involved in the kidnapping.
50. Two police officers were questioned as witnesses in October 2005. They stated that a special operation had been carried out in Starye Atagi in December 2002 by the task force unit and that they had heard about Ruslan Taymuskhanov's kidnapping but had not known anything about it.
51. On 16 and 17 October 2005 the first applicant and Ms D. were questioned again. They did not provide any new information.
52. Between 3 and 17 October 2005 the district prosecutor's office sent requests to a number of law-enforcement agencies to provide information on whether Ruslan Taymuskhanov had been arrested, whether any special operations had been carried out in Starye Atagi at the material time and whether any unidentified dead bodies resembling Ruslan Taymuskhanov had been discovered, and to establish the whereabouts of Mr Z. and a certain Mr D. It followed from the replies received that no criminal proceedings had been instituted against Ruslan Taymuskhanov, that he had not been arrested by the task force unit or detained in a penitentiary institution; Mr Z. had been killed in autumn 2004; Mr D. lived in Moscow.
53. On 25 October 2005 Mr M., a police officer responsible for the applicants' home village of Prigorodnoe, was questioned as a witness and stated that Ruslan Taymuskhanov had been a member of an illegal armed group.
54. Five more people were questioned as witnesses in October 2005. They did not report any new information.
55. On 28 October 2005 the district prosecutor's office ordered the police to check if Ruslan Taymuskhanov had had any connections with illegal armed groups.
56. On 1 November 2005 the district prosecutor's office ordered the Groznenskiy district department of the FSB to check if Ruslan Taymuskhanov had had any contact with any of the leaders of illegal armed groups. It followed from the reply received that since 2002 Ruslan Taymuskhanov had been a member of an illegal armed group.
57. On 3 November 2005 the investigation was again suspended.
58. On 24 August 2006 the first applicant requested the district prosecutor's office to grant her victim status.
59. On 2 September 2006 the first applicant was informed that she had been granted victim status on 15 April 2003.
60. On 5 March 2009 the Groznenksiy inter-district investigating unit of the investigating department of the Investigating Committee of the Russian Prosecutor's Office for the Chechen Republic (“the investigating unit”) quashed the decision of 3 November 2005 and notified the first applicant accordingly.
61. On 11 March 2009 the investigating unit ordered the police to establish Mr D.'s place of residence and the circumstances surrounding the death of Mr Z., as well as to take steps to establish the whereabouts of Ruslan Taymuskhanov and find witnesses to his kidnapping.
62. On 11 March 2009 the investigating unit requested the traffic police to establish whether registration numbers “566” or “655” had belonged to law-enforcement agencies. According to the replies received, one vehicle with registration number “566” and three vehicles with registration numbers “655” belonged to various branches of the Ministry of the Interior of the Chechen Republic. The types of those vehicles were not specified.
63. On 11 March 2009 the investigating unit asked the Ministry of the Interior of the Chechen Republic if on 30 December 2002 they had had a UAZ minivan with registration numbers “566” or “655”. The reply was negative.
64. On 25 March 2009 the investigating unit requested information concerning the death of Mr Z. It turned out that his dead body had been found on 2 January 2005 and that an investigation into the murder was pending.
65. On 4 April 2009 the investigating unit suspended the investigation.
66. On 14 May 2009 the district prosecutor's office pointed out that the investigation in case no. 42061 had been flawed because the following investigative steps had not been taken: Mr D., who had allegedly negotiated Ruslan Taymuskhanov's release with the task force unit, had not been questioned, Mr Z.'s car had not been found and documents concerning his death had not been included in the case file.
67. On 20 May 2009 the investigation in case no. 42061 was resumed.
68. On 3 June 2009 Mr D. was questioned as a witness. He stated that on 1 January 2003 he had been told that his nephew, Mr Z., had been kidnapped. On 3 January 2003 he had found out that Mr Z. had been released. The first applicant had asked Mr D. to help find her son. Mr D. had talked to the head of the task force unit who had said that his subordinates had not arrested Ruslan Taymuskhanov.
69. Despite specific requests by the Court the Government did not disclose most of the materials from the investigation file in case no. 42061. They submitted copies of the decisions to open, suspend and re-open the investigation, records of witnesses' interviews and several replies by the authorities to the applicant and explained that they had provided the “main case-file materials”.
70. For a summary of the relevant domestic law see Akhmadova and Sadulayeva v. Russia (no. 40464/02, §§ 67-69, 10 May 2007).
VIOLATED_ARTICLES: 13
2
3
5
VIOLATED_PARAGRAPHS: 5-1
NON_VIOLATED_ARTICLES: 3


ITEMID: 001-58955
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: CHAMBER
DATE: 2000
DOCNAME: CASE OF GÖÇ v. TURKEY
IMPORTANCE: 3
CONCLUSION: Violation of Art. 6-1 with regard to non-communication of prosecutor's submissions;Not necessary to examine Art. 6-1 with regard to lack of oral hearing;Non-pecuniary damage - finding of violation sufficient;Costs and expenses partial award
JUDGES: Georg Ress
TEXT: 8. The facts of the case, as submitted by the parties, may be summarised as follows.
9. At the material time the applicant was employed as a clerk in the İzmir 2nd Court of Taxation. On 18 July 1995 the İzmir Civil Court of General Jurisdiction forwarded the name and workplace of the applicant to the İzmir Public Prosecutor’s Office, stating that the applicant was suspected of having stolen and falsified court documents relating to a decided divorce case.
10. On 25 July 1995 the Office of the Public Prosecutor referred the case to the Security Directorate.
11. At 5.10 p.m. on 26 July 1995 the applicant was taken into police custody and detained at the İzmir Security Department. He was accused of the above charges. The applicant gave a statement in which he denied that he had been involved in the incident relating to the court’s case file. The applicant claims that he was not permitted to contact his family or consult a lawyer. He alleges that he was insulted and beaten for two hours.
12. Two other suspects were also detained and statements were taken from them. A statement was also taken from Adilye Bilecen, a party to the divorce proceedings.
13. On 27 July 1995 an investigation record was drawn up for the applicant and the two other suspects. At 5.00 p.m. on the same day the applicant was released pursuant to the decision of the public prosecutor. The two other suspects were kept in custody.
14. In the evening of 27 July 1995, following his release, the applicant went to the İzmir State Hospital. He was subsequently granted four days’ sick leave by his employer. The medical report prepared at the hospital referred to the fact that the applicant was suffering from a common skin disease caused by the inflammation of the roots of his facial hair.
15. On 31 July 1995 the Office of the Public Prosecutor of Karşıyaka decided not to bring charges against the applicant (takipsizlik kararı) on the ground of lack of evidence. The decision was served on the applicant on 19 August 1995.
16. The public prosecutor took a statement from the applicant on 28 August 1995. In this statement the applicant stated that he had applied to the Ministry of Justice to have proceedings brought against the individual who had reported him to the authorities.
17. On 29 August 1995 the public prosecutor decided not to lay charges against the person named by the applicant.
18. On 5 September 1995 the applicant filed a complaint under Law No. 466 with the Karşıyaka Assize Court (Ağır Ceza Mahkemesi) against the Treasury requesting TRL 200,000,000 by way of compensation for his detention between “24 and 27 July 1995”. In the petition, the applicant’s lawyer stated, inter alia, that the applicant, while in detention, had been tortured and ill-treated by being beaten and insulted for two hours and deprived of his right to contact his family and a lawyer. As a result of his injuries, the applicant was required to take four days’ sick leave. He did not invoke any specific section of Law. no. 466.
19. On 14 September 1995 the three-judge Karşıyaka Assize Court commissioned one of its members (naip hakim) to investigate the case and draft a report. The judge designated for this purpose verified, inter alia, that the Office of the Public Prosecutor of İzmir had dropped the charges against the applicant. He also obtained information about the applicant’s personal, financial and social status. The judge found that the evidence obtained was sufficient to enable him to draft his report and decided in the exercise of his discretion under section 3 of Law No. 466 that it was unnecessary to hear the applicant. The public prosecutor was asked for his written observations on the applicant’s claim. On 7 December 1995 the public prosecutor, as required by Law no. 466, submitted his opinion to the Karşıyaka Assize Court. The public prosecutor noted that the applicant was taken into custody on 25 July 1995, and not on 24 July 1995 as claimed, and was released on 27 July 1995. The public prosecutor recommended that the applicant be given compensation for non-pecuniary damage in an amount to be assessed by the court. This opinion was not served on the applicant.
20. The judge stated in his report of 7 December 1995 to the Karşıyaka Assize Court, inter alia, that the applicant had been detained for two days from 25 July to 27 July 1995 and upon his release had obtained a medical report which indicated that he had been assaulted (“darp edildiği”). The judge recommended that the applicant be awarded compensation for non-pecuniary damage in respect of his detention, calculated on the basis of his personal, financial and social status.
21. On 7 December 1995 the Karşıyaka Assize Court found that the applicant was detained for two days and qualified for compensation. In its judgment, the court noted all the complaints in the petition submitted by the applicant’s lawyer. With reference to the applicant’s personal, financial and social status, the court awarded the applicant TRL 10,000,000 by way of compensation and TRL 1,500,000 in respect of legal fees.
22. The applicant’s lawyer and the Treasury both appealed against the award. The applicant’s lawyer contended on appeal that the amount of compensation was insufficient reparation for his wrongful arrest and detention. He did not challenge the dates of detention as determined by the court. On 17 October 1996 the Principal Public Prosecutor at the Court of Cassation submitted his opinion on the merits of both parties’ appeals. In his written submissions to the Court of Cassation the Principal Public Prosecutor stated that neither of the parties had grounds for appeal and advised that both their appeals be rejected. This opinion (tebliğname) was not submitted to the applicant.
23. On 7 November 1996 the 6th Chamber of the Court of Cassation for Criminal Law Matters (Yargıtay) upheld the judgment of 7 December 1995.
24. According to information submitted by the Government, the applicant never applied to obtain the compensation awarded to him by the Karşıyaka Assize Court.
25. Article 19 of the Constitution provides:
"Everyone has the right to liberty and security of person.
No one shall be deprived of his liberty save in the following cases and in accordance with the formalities and conditions prescribed by law:
...
The arrested or detained person must be brought before a judge within forty-eight hours at the latest or, in the case of offences committed by more than one person, within fifteen days...These time-limits may be extended during a state of emergency...
...
A person deprived of his liberty, for whatever reason, shall have the right to take proceedings before a judicial authority which shall give a speedy ruling on his case and order his immediate release if it finds that the deprivation of liberty was unlawful.
Compensation must be paid by the State, as the law shall provide, for damage sustained by persons who have been victims of treatment contrary to the above provisions."
26. Under section 128 of the Code of Criminal Procedure, an arrested person must be brought before a judge within twenty four hours or, where the offence has been committed by more than one person, within four days.
27. Section 1 of Law No. 466 on the payment of compensation to persons arrested or detained provides:
"Compensation shall be paid by the State in respect of all damage sustained by persons:
(1) who have been arrested, or detained under conditions or in circumstances incompatible with the Constitution or statute law;
(2) who have not been immediately informed of the reasons for their arrest or detention;
(3) who have not been brought before a judicial officer after being arrested or detained within the time-limit laid down by statute for that purpose;
(4) who have been deprived of their liberty without a court order after the statutory time-limit for being brought before a judicial officer has expired;
(5) whose close family have not been immediately informed of their arrest or detention;
(6) who, after being released or detained in accordance with the law, are not subsequently committed for trial..., or are acquitted or discharged after standing trial;
or
(7) who have been sentenced to a period of imprisonment shorter than the period spent in detention or ordered to pay a pecuniary penalty only."
28. According to section 2 of Law no. 466, a claimant must apply for compensation to the local assize court within three months, setting out the facts complained of and indicating the amount claimed.
According to section 3 of the same Law, the competent court appoints one of its members to examine the application. The judge appointed hears the claimant if necessary, studies the file and requests the public prosecutor to submit his written observations on the claim. The judge then reports back to the court, which decides on the application on the basis of the judge’s assessment and the written observations of the public prosecutor. It does not hold a hearing. The claimant has one week in which to lodge an appeal against the decision reached by the assize court.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1