ITEMID: 001-88022
LANGUAGEISOCODE: ENG
RESPONDENT: AUT
BRANCH: CHAMBER
DATE: 2008
DOCNAME: CASE OF RELIGIONSGEMEINSCHAFT DER ZEUGEN JEHOVAS AND OTHERS v. AUSTRIA
IMPORTANCE: 2
CONCLUSION: Violation of Art. 9;Violation of Art. 14+9;Violation of Art. 6;No violation of Art. 13;Non-pecuniary damage - award
JUDGES: Anatoly Kovler;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;Khanlar Hajiyev;Sverre Erik Jebens
TEXT: 7. The first applicant is a religious community established in Austria, and the second to fifth applicants were born in 1927, 1935, 1927 and 1930 respectively and live in Vienna.
8. On 25 September 1978 the second to fifth applicants and two other claimants requested the Federal Minister for Education and Arts (Bundesminister für Unterricht und Kunst) to recognise the first applicant as a religious society (Religionsgesellschaft) under the 1874 Recognition Act (Anerkennungsgesetz). Since the Minister did not respond, the applicants subsequently filed a complaint (Beschwerde) with the Ombudsman’s Office (Volksanwaltschaft) about the Minister’s inactivity.
9. On 5 February 1981 the Ombudsman’s Office issued a statement concerning the complaint. It considered that the Minister’s inactivity for almost two years constituted an undesirable state of affairs in public administration (Missstand im Bereich der öffentlichen Verwaltung) even though the authority was not formally obliged under the applicable law to take a decision since recognition of a religious society had to be taken in the form of a decree (Verordnung). However, since an agreement had been reached in a meeting between the applicants and the Ministry on 3 December 1980, no further steps were required by the Ombudsman’s Office. The contents of this agreement were not disclosed by the applicants.
10. On 22 June 1987 the second to fifth applicants requested the Federal Minister for Education, Arts and Sports (Bundesminister für Unterricht, Kunst und Sport) to recognise the first applicant as a religious society.
11. The Minister did not grant the request and, after several reminders, informed the applicants that under the 1874 Recognition Act they had no right to obtain a formal decision (Bescheid) on their request.
12. On 25 October 1991 the applicants lodged a direct application (Individualantrag) with the Constitutional Court (Verfassungsgerichtshof). They requested the court to repeal section 2 (1) of the 1874 Recognition Act, as in their view, this provision violated the right to freedom of religion and to freedom of association. They also argued that they were directly affected by this provision without it being necessary for a formal decision by an administrative authority to be taken (Article 140 § 1 in fine of the Federal Constitution (Bundes-Verfassungsgesetz)).
13. On 14 January 1992 the Federal Government (Bundesregierung) submitted their observations to the Constitutional Court. On 27 April 1992 the Constitutional Court asked the Federal Government to submit supplementary observations, which were filed on 2 June 1992. The Federal Government argued, inter alia, that the provisions at issue were in conformity with the Federal Constitution as it was possible for the applicants to found a religious association under the Associations Act (Vereinsgesetz).
14. On 25 June 1992 the Constitutional Court rejected the applicants’ complaint as inadmissible. Relying on Article 13 of the Convention, the court considered that they were not directly affected by the impugned provisions as, in the light of its judgment of 1988 (VfSlg [Judgments and Decisions of the Constitutional Court] 11.931/1988), they had a right to have their case determined by an administrative authority. However, they had not exhausted the legal remedies available to them since they had failed to lodge an application under Article 132 of the Federal Constitution with the Administrative Court (Verwaltungsgerichtshof) against the Minister’s failure to give a decision (Säumnisbeschwerde).
15. On 30 July 1992 the applicants lodged such an application with the Administrative Court. They asked the court to decide on their request for recognition of the first applicant as a religious society under the Recognition Act.
16. On 22 March 1993 the Administrative Court rejected the applicants’ request as inadmissible. Referring to its previous case-law on the matter, it found that under the 1874 Recognition Act, a positive decision had to be taken by the competent minister in the form of a decree (Verordnung), whereas under Article 132 of the Federal Constitution, the Administrative Court was only competent to deliver individual decisions (Bescheide) and not decrees in the place of an administrative authority.
17. On 12 October 1993 the applicants again lodged a direct application under Article 140 § 1 in fine of the Federal Constitution with the Constitutional Court, seeking to have sections 1 and 2 of the 1874 Recognition Act repealed. Relying on Article 13 of the Convention, they argued that they had no effective remedy against the authority which had arbitrarily refused to determine their case.
18. On 10 March 1994 the Constitutional Court dismissed the applicants’ complaint as inadmissible. It found that it had already decided the matter in its decision of 25 June 1992. As an obiter dictum the court indicated, however, that the second to fifth applicants might request the Constitutional Court to examine a complaint under Article 144 of the Federal Constitution against the Minister’s failure to decide on the request for recognition. Once the Constitutional Court refused this request, they could apply to the Constitutional Court under Article 138 of the Federal Constitution for determination of a case where two courts (namely the Administrative Court and the Constitutional Court) declined jurisdiction (negativer Kompetenzkonflikt).
19. On 9 May 1994 the second to fifth applicants lodged such a complaint, which the Constitutional Court on 21 June 1994 rejected as inadmissible for lack of jurisdiction. It held that there was no legal provision entitling it to decide on applications about an authority’s failure to give a decision.
20. On 16 November 1994 the applicants requested the Constitutional Court under Article 138 of the Federal Constitution to determine the conflict of jurisdiction between the Administrative Court and the Constitutional Court.
21. On 23 June 1995 the Constitutional Court held an oral hearing. On 4 October 1995 the court quashed the Administrative Court’s decision of 22 March 1993 and decided that the Administrative Court had jurisdiction to decide on the applicants’ complaint of 30 July 1992. The Constitutional Court found that under the 1874 Recognition Act a religious body had a subjective right to recognition as a religious society provided that the conditions laid down in that Act were met. The rule of law required that such a right be an enforceable one, in other words, that refusal to grant recognition should be subject to review by the Austrian courts and not left to the sole discretion of the administrative authorities. In order to guarantee such a review it was necessary for a negative decision refusing recognition to be taken in the form of a written decision (Bescheid). Under the Austrian legal order, only when taking such decisions were the competent authorities bound to deal with a request by a party, whereas no such obligation existed with regard to decrees (Verordnungen). A positive decision had to be taken in the form of a decree as it not only had effect vis-à-vis the parties but also vis-à-vis the general public.
22. On 18 December 1995 the Administrative Court ordered the Federal Minister for Education and Cultural Affairs (Bundesminister für Unterricht und kulturelle Angelegenheiten – “the Minister”) to submit the case file within two months and to communicate the arguments in favour of and against recognition.
23. On 13 February 1996 the Federal Minister submitted observations to the Administrative Court, arguing that under the hitherto existing law, a decision was not required and requesting a three-month extension of the time-limit for submission of the case file and detailed observations.
24. On 25 March 1996 the Administrative Court opened preliminary proceedings (Vorverfahren) and ordered the Minister to decide within three months on the applicants’ request for recognition. The Federal Minister failed to do so.
25. On 28 April 1997 the Administrative Court issued a binding decision (Erkenntnis) to the effect that the Minister had a duty to decide on the request for recognition within eight weeks and set out the principles which the Minister had to take into account when taking this decision. On 3 June 1997 the applicants submitted further observations and arguments in their favour to the Minister.
26. On 21 July 1997 the Minister dismissed the applicants’ request. It found that the Jehovah’s Witnesses could not be recognised as a religious society under the 1874 Recognition Act because of their unclear internal organisation and their negative attitude towards the State and its institutions. Reference was further made to their refusal to perform military service or any form of alternative service for conscientious objectors, to participate in local community life and elections and to undergo certain types of medical treatment such as blood transfusions.
27. On 3 September 1997 the applicants lodged a complaint against the Minister’s decision with the Constitutional Court.
28. On 11 September 1997 the Constitutional Court communicated the complaint to the Minister and requested him to submit, within eight weeks, the case file and any observations he wished to make. The Minister did not respond.
29. On 11 March 1998 the Constitutional Court quashed the Minister’s decision of 21 July 1997 and referred the case back to the Minister. It noted that the Minister had neither filed submissions nor submitted the case file, with the result that the decision had to be taken on the basis of the complainants’ submissions. The court noted that they had, inter alia, argued that the Minister had taken his decision without a proper investigation, basing it on documents of which the complainants had not been informed and on which they had not been given the opportunity to comment. Since the case file was not available to the Constitutional Court, this allegation could not have been refuted. The Constitutional Court therefore concluded that the Minister’s decision was arbitrary and violated the principle of equality (Gleichheitsgrundsatz).
30. Meanwhile, on 10 January 1998, the Act on the Legal Status of Registered Religious Communities (Bundesgesetz über die Rechtspersönlichkeit von religiösen Bekenntnisgemeinschaften, hereafter referred to as “the 1998 Religious Communities Act”) had entered into force. Thus, the Minister found that he had to deal with the applicants’ request for recognition under the 1874 Recognition Act as a request under section 11(2) of the 1998 Religious Communities Act. On 20 July 1998 the Minister decided that the first applicant had acquired legal personality as a registered religious community within the meaning of the Religious Communities Act as from 11 July 1998. That decision was served on the applicants on 29 July 1998.
31. On 22 July 1998 the applicants submitted another request to the Federal Minister for recognition of the first applicant as a religious society under the 1874 Recognition Act.
32. On 1 December 1998 the Federal Minister dismissed the request. It found that, pursuant to section 11(1) of the 1998 Religious Communities Act, a religious community could only be recognised as a religious society under the 1874 Recognition Act if it had already existed as a registered religious community for a minimum of ten years. The first applicant, however, did not meet this requirement at the time when the request for recognition was submitted on 22 July 1998.
33. On 21 January 1999 the applicants lodged a complaint against that decision with the Constitutional Court.
34. On 14 March 2001 the Constitutional Court dismissed the complaint. It found that the ten-year waiting period for registered religious communities as a precondition for a successful application for recognition under the 1874 Recognition Act was in conformity with the Federal Constitution and referred to its previous decision of 3 March 2001 (VfSlg. 16.102/2001) on that issue. The decision was served on the applicants’ lawyer on 29 March 2001.
35. Further to a request by the applicants, the case was referred to the Administrative Court in April 2001.
36. On 14 September 2004 the Administrative Court dismissed the applicants’ complaint, finding that it concerned in essence questions of the constitutionality and interpretation of section 11(1) of the 1998 Religious Communities Act, which, in the light of the Constitutional Court’s ruling of 14 March 2001, did not raise a problem in terms of the Federal Constitution. The Federal Minister had therefore correctly applied that provision. The decision was served on the applicants’ lawyer on 25 October 2004.
37. Under Article 14 of the Basic Law, everybody is granted freedom of conscience and belief. The enjoyment of civil and political rights is independent from religious belief; however, the manifestation of religious belief may not derogate from civic obligations.
38. Article 15 provides that recognised churches and religious communities have the right to manifest their faith collectively in public, to organise and administer their internal affairs independently, to remain in possession of acquired institutions, foundations and funds dedicated to cultural, educational and charitable purposes, however, they are, like all other societies, subordinated to the law.
39. Article 16 entitles the supporters of non-recognised religious communities to domestic manifestation of their faith unless it is unlawful or contra bones mores.
40. Article 63 § 1 states that Austria undertakes to ensure full and complete protection of life and liberty to all inhabitants of Austria without distinction on the basis of birth, nationality, race or religion.
41. Article 63 § 2 guarantees to all inhabitants of Austria the right to manifest publicly and privately their thought, religion and beliefs, unless these are incompatible with the protection of public order or morals.
42. Section 1 of the Act provides that all religious faiths which have not yet been recognised in the legal order may be recognised as a religious society if they fulfil the conditions set out in the Act, namely that their teaching, services and internal organisation, as well as the name they choose, do not contain anything unlawful or morally offensive and that the setting up and existence of at least one community of worship (Cultusgemeinde) satisfying the statutory criteria is ensured.
43. Section 2 provides that if the above conditions are met, recognition is granted by the Minister for Religious Affairs (Cultusminister). Recognition has the effect that a religious society obtains legal personality under public law (juristische Person öffentlichen Rechts) and enjoys all rights which are granted under the legal order to such societies. Sections 4 et seq. regulate the setting up of communities of worship, membership of them, delimitation of their territory, and their bodies and statutes. Sections 10 to 12 deal with the nomination of religious ministers (Seelsorger) of religious societies, the qualifications such persons must have and how their nomination must be communicated to the authorities. Section 15 provides that the public authorities responsible for religious matters have a duty to monitor whether religious societies comply with the provisions of the Act.
44. The legal personality of the Roman Catholic Church is, on the one hand, regarded as historically recognised, and, on the other hand, explicitly recognised in an international treaty, the Concordat between the Holy See and the Republic of Austria (Federal Law Gazette II, No. 2/1934 – Konkordat zwischen dem Heiligen Stuhle und der Republik Österreich, BGBl. II Nr. 2/1934).
45. The following are examples of special laws recognising religious societies:
(a) Act on the External Legal Status of the Israelite Religious Society, Official Gazette of the Austrian Empire, No. 57/1890 (Gesetz über die äußeren Rechtsverhältnisse der Israelitischen Religionsgesellschaft, RGBl. 57/1890);
(b) Act of 15 July 1912 on the recognition of followers of Islam [according to the Hanafi rite] as a religious society, Official Gazette of the Austrian Empire No. 159/1912 (Gesetz vom 15. Juli 1912, betreffend die Anerkennung der Anhänger des Islam [nach hanefitischen Ritus] als Religionsgesellschaft, RGBl. Nr. 159/1912);
(c) Federal Act on the External Legal Status of the Evangelical Church, Federal Law Gazette No. 182/1961 (Bundesgesetz vom 6. Juli 1961 über die äußeren Rechtsverhältnisse der Evangelischen Kirche, BGBl. Nr. 182/1961);
(d) Federal Act on the External Legal Status of the Greek Orthodox Church in Austria, Federal Law Gazette No. 229/1967 (Bundesgesetz über die äußeren Rechtsverhältnisse der Griechisch-Orientalischen Kirche in Österreich, BGBl. Nr. 182/1961);
(e) Federal Act on the External Legal Status of the Oriental Orthodox Churches in Austria, Federal Law Gazette No. 20/2003 (Bundesgesetz über äußere Rechtsverhältnisse der Orientalisch-Orthodoxen Kirchen in Österreich, BGBl. Nr. 20/2003).
46. Between 1877 and 1982 the competent ministers recognised a further six religious societies.
47. The Religious Communities Act entered into force on 10 January 1998. Pursuant to Section 2(3) of the Act, the Federal Minister for Education and Culture has to rule in a formal written decision (Bescheid) on the acquisition of legal personality by the religious community. In the same decision the Minister has to dissolve any association whose purpose was to disseminate the religious teachings of the religious community concerned (section 2(4)). The religious community has the right to call itself a “publicly-registered religious community”.
48. Section 4 specifies the necessary contents of the statutes of the religious community. Among other things, they must specify the community’s name, which must be clearly distinguishable from the name of any existing religious community or society. They must further set out the main principles of the religious community’s faith, the aims and duties deriving from it, the rights and duties of the community’s adherents, including the conditions for terminating membership (it is further specified that no fee for leaving the religious community may be charged), how its bodies are appointed, who represents the religious community externally and how the community’s financial resources are raised. Lastly, the statutes must contain provisions on the liquidation of the religious community, ensuring that the assets acquired are not used for ends contrary to religious purposes.
49. Under section 5, the Federal Minister must refuse to grant legal personality to a religious community if, in view of its teachings or practice, this is necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedom of others; this is in particular the case if its activities involve incitement to commit criminal offences, obstruction of the psychological development of adolescents or undermining of people’s mental integrity, or if the statutes do not comply with section 4.
50. Under section 7, the religious community must inform the Federal Minister for Education and Cultural Affairs of the name and address of the persons belonging to its official bodies and of any change of its statutes without delay. The Minister must refuse to accept the notification if the appointment of the official bodies contravened the statutes or if the change of the statutes would constitute a reason for refusal of registration under section 5.
51. Section 9 specifies the reasons for termination of a community’s legal personality. Legal personality ceases to exist if the religious community dissolves itself or if the acknowledgment of its legal personality is revoked. Reasons for revoking legal personality are set out in subsection (2): for example, if the reasons for granting legal personality no longer subsist or if for more than one year no bodies representing the religious community externally have been appointed.
52. The Act only regulates the granting of legal personality. Once legal personality has been granted to a religious community, it may pursue the activities referred to in its statutes. There are no specific laws in Austria regulating the acquisition of assets by religious societies or communities, the establishment of places of worship or assembly, or the publication of religious material. However, provisions which contain explicit references to religious societies are spread over various statutory instruments (see below).
53. Since the entry into force of the Religious Communities Act on 10 January 1998, non-recognised religious associations may be granted legal personality upon application. A previous application for recognition under the Recognition Act is to be dealt with as an application under the Religious Communities Act pursuant to section 11(2).
54. Section 11(1) of the Religious Communities Act establishes additional criteria for a successful application under the Recognition Act, such as the existence of the religious association for at least twenty years in Austria and for at least ten years as a registered religious community; a minimum number of two adherents per thousand members of the Austrian population (at the moment, this means about 16,000 persons); the use of income and other assets for religious purposes, including charity activities; a positive attitude towards society and the State; and no illegal interference as regards the community’s relationship with recognised or other religious societies.
55. In various Austrian laws specific reference is made to recognised religious societies. The following list, which is not exhaustive, sets out the main instances.
Under section 8 of the Federal School Supervision Act (Bundes-Schulaufsichtsgesetz), representatives of recognised religious societies may sit (without the right to vote) on regional education boards.
Under the Private Schools Act (Privatschulgesetz), recognised religious societies, like public territorial entities, are presumed to possess the necessary qualifications to operate private schools, whereas other persons have to prove that they are qualified.
Under section 24(3) of the Military Service Act, ordained priests, persons involved in spiritual welfare or in religious teaching after graduation from theological studies, members of a religious order who have made a solemn vow and students of theology who are preparing to assume a pastoral function and who belong to a recognised religious society are exempt from military service and, under section 13 of the Civilian Service Act, are also exempt from alternative civilian service.
Under sections 192 and 195 of the Civil Code (ABGB), ministers of recognised religious societies are exempt from the obligation to submit an application to be appointed as guardians, and under section 3 (4) of the 1990 Act on Juries of Assizes and Lay Judges (Geschworenen- und Schöffengesetz) they are exempt from acting as members of a jury of an assize court or as lay judges of a criminal court.
Section 18(1)(5) of the Income Tax Act provides that contributions to recognised religious societies are deductible from income tax up to an amount of 100 euros (EUR) per year.
Section 2 of the Land Tax Act (Grundsteuergesetz) provides that real property owned by recognised religious societies and used for religious purposes is exempt from real-estate tax.
Under section 8(3)(a) of the 1955 Inheritance and Gift Act (Erbschafts- und Schenkungsteuergesetz), which was still in force at the relevant time, donations to domestic institutions of recognised churches or religious societies were subject to a reduced tax rate of 2.5%.
VIOLATED_ARTICLES: 14
6
9
NON_VIOLATED_ARTICLES: 13


ITEMID: 001-90042
LANGUAGEISOCODE: ENG
RESPONDENT: CYP
BRANCH: CHAMBER
DATE: 2008
DOCNAME: CASE OF STAVROS MARANGOS v. CYPRUS
IMPORTANCE: 4
CONCLUSION: No violation of Article 6 - Right to a fair trial
JUDGES: Anatoly Kovler;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;Giorgio Malinverni;Sverre Erik Jebens;Takis Eliades
TEXT: 6. The applicant was born in 1959 and lives in Nicosia. He is currently employed on a temporary basis at the Statistical Service of the Republic of Cyprus.
7. On 3 July and 9 August 2000 he made two applications for appointment in different sections of the civil service. On 10 July 2001 and 11 September 2001 both of his applications were refused by the Civil Service Commission on the ground that he had not performed his military service or been legally exempted from it.
8. On 21 September 2001 the applicant lodged a judicial review application before the Supreme Court challenging the relevant decisions of the Civil Service Commission. He contended, inter alia, that he had refused to perform his military service with the Cypriot National Guard as he was a homosexual and that for the determination of his sexual orientation he would have been subjected to degrading treatment contrary to Article 3 and 8 of the Convention.
9. In its interim decision of 24 February 2003 the court rejected an application for amendment of the applicant’s pleadings. It noted that whether or not the applicant was entitled to be exempted from military service was not a contested issue in the pending proceedings and, as such, could not be examined. The issue under dispute in the proceedings before the court was the lawfulness of the decision by the Civil Service Commission dismissing the applicant’s application for lack of fulfilment of the requirement of completion of military service.
10. On 17 October 2003 the Supreme Court rejected the judicial review application and made an order for costs against the applicant. It justified the rejection by referring to the reasons set out in its previous interim decision and, in particular, that the applicant did not meet one of the basic requirements for appointment to the Civil Service.
11. On 28 November 2003, the applicant lodged an appeal before the Supreme Court against its first-instance judgment. The grounds of appeal had been drafted by the applicant’s representative. On 30 July 2004 the applicant filed his skeleton argument which had also been prepared by his representative. The appeal was set for a hearing on 9 October 2006.
12. Until that stage of the proceedings, the applicant was being represented by a lawyer of his choice, but due to his inability to settle outstanding legal fees he had to stop receiving legal assistance from his lawyer.
13. On 2 August 2004 he filed an application for legal aid claiming that the proceedings concerned the protection of his human rights and thus fell within the scope of proceedings for which the grant of legal aid was envisaged by the Legal Aid Law 165 (I) of 2002.
14. On 4 October 2004, his application for legal aid was rejected by the Supreme Court, acting in a panel of five judges, which referred to the relevant provisions of the Legal Aid Law and explained that legal aid could only be provided in criminal proceedings, civil proceedings that concern determination of a litigant’s human rights and proceedings lodged before the family courts. The proceedings introduced by the applicant, who sought judicial review under Article 146 of the Constitution of a decision refusing to appoint him in the civil service, did not constitute civil proceedings and, as such, his legal aid application had to be refused.
15. On 3 November 2006 the Supreme Court dismissed the applicant’s appeal. The court referred to the arguments developed by the applicant’s lawyer in the proceedings. It found that the issue of unconstitutionality had not been raised by the applicant’s lawyer in accordance with the requirements set out in the relevant procedural provisions and case-law given that it had only been set out in a vague and imprecise manner in the application seeking judicial review. The court further took into account the points raised by the applicant’s lawyer in his written address to the Court. It found that the vague suggestions made concerning unconstitutionality had no legal foundation and were irrelevant to the subject-matter of the judicial review application. No other ground for annulment of the relevant decision had been raised or shown.
16. Article 146 of the Constitution of the Republic of Cyprus provides as follows:
“1. The Supreme Constitutional Court shall have exclusive jurisdiction to adjudicate finally on a recourse made to it on a complaint that a decision, an act or omission of any organ, authority or person, exercising any executive or administrative authority is contrary to any of the provisions of this Constitution or of any law or is made in excess or in abuse of powers vested in such organ or authority or person.
2. Such a recourse may be made by a person whose any existing legitimate interest, which he has either as a person or by virtue of being a member of a Community, is adversely and directly affected by such decision or act or omission.
3. Such a recourse shall be made within seventy-five days of the date when the decision or act was published or, if not published and in the case of an omission, when it came to the knowledge of the person making the recourse.
4. Upon such a recourse the Court may, by its decision-
(a) confirm, either in whole or in part, such decision or act or omission; or
(b) declare, either in whole or in part, such decision or act to be null and void and of no effect whatsoever, or
(c) declare that such omission, either in whole or in part, ought not to have been made and that whatever has been omitted should have been performed.
5. Any decision given under paragraph 4 of this Article shall be binding on all courts and all organs or authorities in the Republic and shall be given effect to and acted upon by the organ or authority or person concerned.
6. Any person aggrieved by any decision or act declared to be void under paragraph 4 of this Article or by any omission declared there under that it ought not to have been made shall be entitled, if his claim is not met to his satisfaction by the organ, authority or person concerned, to institute legal proceedings in a court for the recovery of damages or for being granted other remedy and to recover just and equitable damages to be assessed by the court or to be granted such other just and equitable remedy as such court is empowered to grant.”
17. Law 165 (I) of 2002 on Legal Aid provides, in so far as relevant, as follows:
“3. Legal aid shall be granted free of charge in the proceedings provided for in sections 4, 5 and 6 below, to the extent and under the conditions laid down therein.
4.- (1) This section applies-
(a) In criminal proceedings before a court, against any person, for an offence that he may have committed in violation of any legislative provision, for which an imprisonment sentence exceeding one year is provided for and includes preliminary interrogation and every other stage of interrogation or other procedure taking place before the commencement of subsequent criminal proceedings that relate to it;
(b) Except for the criminal proceedings provided for in paragraph (b) of subsection (1) of section 5 below, in any other proceedings before a court exercising its criminal jurisdiction.
(2) For the purposes of the application of this section, the term “court” means the District Court, Assize Court, Military Court and includes the Supreme Court, when examining any issue raised in criminal proceedings, in exercising its first- or second-instance jurisdiction.
(3) In the proceedings provided for in subsection (1) above, legal aid will be granted free of charge, and will include advice, assistance and representation.
5. (1) For the purposes of the application of this section, the term “proceedings for determined violations of human rights” means any:
(a) Civil proceedings before a court, at any stage, lodged against the Republic for damages sustained by a person due to determined violations of human rights; or
(b) Criminal proceedings lodged by any person where the offence in examination concerns determined violations of human rights.
(2) Legal aid will be granted, free of charge, to proceedings concerning determined violations of human rights.
(3) Legal aid granted by virtue of this section:
(a) In the case of civil proceedings lodged in the Republic or criminal proceedings, will include advice, assistance and representation; and
(b) In civil proceedings lodged outside the Republic, will include only advice.
(4) The Ministerial Council may, by an order published in the Official Gazette of the Republic, amend the Table.
6. (1) For the purposes of this section, the term “proceedings before a family court” means:
(a) Proceedings raised in respect of family relations on the basis of provision of bilateral or multilateral treaties to which the Republic has acceded; or
(b) Proceedings concerning parental care, alimony, recognition of a child, adoption, proprietary relations of spouses and any other marital or family dispute.
(2) Free legal aid is provided for in proceedings before a family court, and includes advice, assistance and representation.”
NON_VIOLATED_ARTICLES: 6


ITEMID: 001-57866
LANGUAGEISOCODE: ENG
RESPONDENT: ESP
BRANCH: CHAMBER
DATE: 1994
DOCNAME: CASE OF CASADO COCA v. SPAIN
IMPORTANCE: 2
CONCLUSION: No violation of Art. 10
JUDGES: John Freeland;N. Valticos
TEXT: 6. Mr Pablo Casado Coca, a Spanish national, lives at Valldoreitx, near Barcelona, and practises as a lawyer (abogado) in Barcelona.
7. After setting up his practice in 1979, he regularly placed notices advertising it in the "miscellaneous advertisements" pages of several Barcelona newspapers and the Revista alemana de España ("German Journal of Spain"). He also wrote to various companies offering his services.
8. The Barcelona Bar Council (Junta de Govern del Col.legi d’Advocats) brought disciplinary proceedings against him four times on this account, and in 1981 and 1982 these led to the imposition of penalties, namely two reprimands and two warnings. The applicant lodged internal appeals against these penalties but did not apply to the competent courts.
9. From October 1982 notices giving details of the applicant’s legal practice were published in the newsletter of the Valldoreitx Residents’ and Property Owners’ Association. They took up approximately one-third of a page and gave the applicant’s name, with the title "lawyer" (letrado), and his office address and telephone number.
10. The Barcelona Bar Council brought further disciplinary proceedings against Mr Casado Coca on this account. On 6 April 1983 he again received a written warning for disregarding the ban on professional advertising (Article 31 of Royal Decree no. 2090/82 of 24 July 1982, laying down the Statute of the Bar - see paragraph 22 below).
11. On 3 June 1983, following an internal appeal by the applicant, the National Bar Council (Consejo general de la Abogacía) upheld the penalty imposed. Referring to Article 31 of the Statute of the Bar as amplified in the relevant rules of the Barcelona Bar Council (see paragraphs 22, 24 and 27 below), it held that, given their nature, the notices in question went beyond the defined limits. It also pointed out that the applicant had recently incurred other disciplinary penalties for the same reason, and these had to be taken into consideration when ruling on the appeal.
12. Mr Casado Coca then applied to the Barcelona Audiencia Territorial. He argued in particular that the purpose of his notice was to inform the public and that the warning infringed Article 20 of the Constitution, which guaranteed the right to freedom of expression. He also alleged that the principle that only a statute could define offences and lay down penalties had been contravened because the provisions which prohibited advertising by members of the Bar and attached disciplinary penalties were regulatory in nature.
The court dismissed his application on 11 May 1987, holding that the notice in question was a vehicle for advertising and not simply an announcement of information. It appeared beside similar announcements by a driving school and an old people’s home and went beyond the limits laid down in the Bar’s rules, which allowed notices only to announce the setting up of a practice or a change of address; this was not the applicant’s case.
13. On 23 September 1988 the Supreme Court dismissed an appeal on points of law by Mr Casado Coca and at the same time refused to refer the case to the Constitutional Court on grounds of unconstitutionality.
It rejected the ground of appeal based on disregard of the principle that only a statute could define offences and lay down penalties. It did so by reference to the case-law of the Constitutional Court, according to which Article 36 of the Constitution (see paragraph 18 below) makes it permissible for statute law to provide that the rules governing professional associations and the practice of the professions may be laid down by means of regulations. It held that Article 20 did not protect advertising as a fundamental right, because advertising was not a matter of expressing thoughts, ideas or opinions but of announcing the existence of a profit-making business activity.
Moreover, the ban on professional advertising by members of the Bar had legitimate aims, namely to uphold free competition and to protect clients’ interests. In such a case the right in question could be subject to restrictions.
14. The applicant then lodged an appeal (recurso de amparo) with the Constitutional Court. He again maintained that it was contrary to the principle of statutory definition of offences and prescription of penalties enshrined in the Constitution to lay down administrative penalties by means of a decree, and that since the notice set out genuine information, i.e. his name, address and telephone number, the penalty imposed contravened Article 20 of the Constitution.
15. On 17 April 1989 the Constitutional Court declared the appeal inadmissible.
It held that the penalty complained of did not infringe the fundamental right to communicate genuine information. The aim of the advertising was connected with the "carrying on of a commercial, industrial, craft or professional activity"; it consisted in "directly or indirectly promoting the conclusion of contracts relating to movable or immovable property, services, rights or obligations", whereas the purpose of the fundamental right defined in Article 20 para. 1 (d) was to enable citizens to "form their beliefs by weighing different or even diametrically opposed opinions and thus taking part in the discussion of public affairs". The ban on advertising professional services did not infringe the fundamental right in question.
16. Article 20 of the Constitution guarantees the right to freedom of expression:
"1. The following rights shall be recognised and protected:
(a) the right freely to express and disseminate thoughts, ideas and opinions by word of mouth, in writing or by any other means of reproduction;
...
(d) the right to receive and communicate true information by any means of dissemination. The right to invoke the conscience clause and that of professional confidentiality shall be governed by statute.
2. The exercise of these rights may not be restricted by any prior censorship.
...
4. These freedoms shall be limited by respect for the rights secured in this Part, by the provisions of the implementing Acts and in particular by the right to honour and to a private life and the right to control use of one’s likeness and to the protection of youth and children."
17. Article 25 enshrines the principle that only a statute can define offences and lay down penalties:
"1. No one may be convicted or punished for any act or omission which at the time it was committed did not constitute, under the legislation in force at that time, a criminal offence, whether serious or petty, or an administrative offence.
..."
18. Article 36 deals with professional associations:
"The special features of the legal status of professional associations and the practice of professions requiring a university degree shall be laid down by statute. The internal structure and functioning of associations must be democratic."
According to the case-law of the Constitutional Court, this Article does not preclude a statutory provision that rules governing professional associations and the practice of the professions are to be laid down in administrative regulations (judgments of 20 February and 24 September 1984).
19. The Constitution states that any previous provisions contrary to it are repealed.
20. Law no. 2/1974, which was published in the Spanish Official Gazette of 15 February 1974, governs the functioning and organisation of professional associations. Section 1 provides:
"Professional associations are public-law corporations, protected by law and recognised by the State, enjoying legal personality and having full capacity to act in pursuit of their objectives."
21. Section 5 (i) makes the professional associations responsible for regulating their members’ professional activities, for ensuring that professional ethics and dignity are upheld and that the rights of private individuals are respected, and for exercising disciplinary powers in professional and internal matters. To these ends, the relevant national councils adopt statutes, which are approved by the Government. These statutes lay down the rights and duties of the members of each profession and the disciplinary rules applicable to them.
22. Royal Decree 2090/82 laying down the Statute of the Spanish Bar (Estatuto general de la Abogacía Española) was published in the Spanish Official Gazette on 2 September 1982.
"Members of the Bar are not allowed to
(a) announce or circulate information about their services directly or through advertising media, ... or express opinions free of charge in professional journals or other publications or media without permission from the Bar Council;
..."
Articles 107-112 govern the disciplinary powers of Bar councils. An appeal against penalties lies to the National Bar Council (Article 96 para. 1) and subsequently to the competent courts (Article 99).
23. At sessions held on 5-6 March, 21-22 May and 25 June 1993 the Assembly of the Chairmen of the Spanish Bars adopted the draft of a new national Statute, which has been submitted to the Government for approval. Article 31 of the draft Statute provides:
"1. Members of the Bar may advertise their services and practices in accordance with the legislation in force, this Statute and other rules and decisions of the Bar.
2. Direct or indirect advertising of individual members of the Bar and their services and participation by the former in legal advice programmes in the media shall be subject to certain conditions. Members of the Bar must
(a) comply with the special provisions applicable to practice at the Bar as well as with the current legislation on advertising;
(b) show regard for truth, rigour and exactness without detracting from other members’ advertisements by imitating them or inviting confusion with them, without lapsing into self-praise and comparisons with or denigration of their colleagues and without citing their own professional successes, their clientele or the financial terms on which they provide services; and
(c) request the relevant Bar council’s prior authorisation for the proposed advertisement, specifying its content and the way in which it will be published.
The Bar council may grant authorisation, make it subject to certain amendments or refuse it. In all cases, it shall give a reasoned decision that can be challenged in accordance with the procedure laid down in Articles 130 et seq. of this Statute and shall be communicated to the member of the Bar making the request within not more than thirty days of that request, failing which the council shall be deemed to have given its tacit consent.
3. Notwithstanding the above, members of the Bar may, without seeking prior authorisation,
(a) use a letterhead stating their name, profession and university degrees, or those of their partners, and the name, telephone number and other particulars of their chambers, in the form customarily used by members of the Bar;
(b) affix to the outside of the building in which they have their chambers or their private residence and to the door of their chambers or nearby, a sign or plate announcing their practice, of the size and kind usual in the area of the Bar;
(c) have their status as a member of the Bar included in telephone, fax, telex and other directories;
(d) announce by letter or in the press any changes of address, telephone number or other particulars of their chambers, likewise in the form customarily used by members of the Bar to which they belong; and
(e) take part in conferences and symposia, mentioning their membership of the Bar, publish articles in the specialist and non-specialist press and make statements on radio or television.
4. Members of the Bar who continuously or occasionally provide services to individuals or companies must require them to refrain from any advertising that does not comply with the provisions of this Statute.
5. The Bar council shall rule on allegedly doubtful or unforeseen cases and violations of provisions governing advertising or any misuse of rights derived from the rules in this Statute. It may expressly prohibit practices it deems contrary to the spirit of this Statute and punish any breaches of such prohibitions."
24. At the time when the penalty was imposed on the applicant, the 1947 Statute of the Barcelona Bar (Estatutos del Colegio de Abogados de Barcelona) was still in force. Article 18 quite simply prohibited members of the Bar from advertising, in the following terms:
"Members of the Bar are forbidden to publish notices relating to the practice of their profession as a means of advertising or propaganda."
25. Being of the view that the ban on advertising was an important rule of professional conduct, the Barcelona Bar Council adopted a decision on 24 February 1981 on "Members of the Bar and advertising" (Acord sobre "Els advocats i la publicitat"), which provided, inter alia:
"1. General principle
It is forbidden for members of the Bar to undertake any direct or indirect personal advertising intended to attract clients.
...
2. Authorised notices
Members of the Bar may publish small notices in local daily newspapers in order to announce the setting up of their practices or changes in membership or of address, telephone number or telex number.
The size and content of notices must be approved in advance by the Bar Council. They may not appear more than three times during a maximum period of two months.
...
6. Professional directories
Members of the Bar may publish their names, addresses, telephone numbers and telex numbers, with a brief indication of the type of professional services offered, in professional directories, provided that all members of the Bar have the same access to these.
..."
26. A new Statute of the Barcelona Bar (Estatuts del Il.lustre Col.legi d’Advocats de Barcelona) was published in the Catalonia Official Gazette of 5 June 1985.
Article 19 provides:
"1. It is forbidden for members of the Bar to undertake any personal advertising intended to secure clients, whether directly or indirectly.
2. It is also forbidden for members of the Bar to consent either expressly or tacitly to any form of advertising offered to them.
3. The foregoing prohibition shall cover both advertising by word of mouth and written or graphic advertising in any form and of any kind. It shall also apply to advertising by means of radio or television broadcasts.
...
5. The Bar Council may adopt rules to deal in greater detail with the matters covered in this Article."
Failure to comply with the provisions of the Statute constitutes serious or minor misconduct, depending on the circumstances, and may lead to penalties being imposed (Articles 94 to 96 of the Statute).
27. On 5 February 1985 the Bar Council amended the rules laid down in its 1981 decision (see paragraph 25 above) by forbidding members of the Bar to send press releases involving personal advertising to the media.
28. On 4 July 1991 the Council of the Catalonia Bars (Consell dels Col.legis d’Advocats de Catalunya) adopted new rules on advertising. These superseded the earlier rules included in the statutes and decisions of the Catalonia Bars (Rule 6).
The preamble states:
"Advertising by members of the Bar is traditionally considered to be more or less incompatible with professional ethics. However, it is obvious that advertising, provided it does not go beyond certain limits, does not offend the vital principles of the profession’s code of ethics, namely probity and independence. Today information is one of the foundations of democratic countries and a right for users of a service.
..."
Rules 2 and 3 make a distinction in this field:
"Rule 2
Authorised advertising
Members of the Bar may
...
(b) publish documents, circulars or articles on legal subjects, even in publications not specialising in law, bearing their signature and indicating the author’s status as a member of the Bar;
(c) express their personal opinions in the media on subjects of public interest or on cases in which they are involved professionally, taking care at all times to maintain professional secrecy;
(d) publish brochures giving details of their practices, the members of the Bar who work there and the types of case handled. This publicity material must be approved in advance by the Bar Council. They may also publish information circulars on legal topics. The brochures and circulars referred to in this paragraph may be distributed only to clients and not to third parties;
... "
"Rule 3
Unauthorised advertising
Members of the Bar may not advertise otherwise than as allowed under the terms of the preceding Rule. In particular, they may not
(a) advertise their services by making known their professional successes, giving the names of their clients or comparing themselves with other members of the Bar or by allowing others so to act without objecting;
(b) send brochures, circulars or other documents or offer their services to persons other than clients;
...
(e) advertise in the press or on radio or television except as allowed under Rule 2."
NON_VIOLATED_ARTICLES: 10


ITEMID: 001-80941
LANGUAGEISOCODE: ENG
RESPONDENT: POL
BRANCH: ADMISSIBILITY
DATE: 2007
DOCNAME: SZKUP v. POLAND
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Nicolas Bratza
TEXT: The applicant, Mrs Alicja Szkup, is a Polish national, who lives in Łowicz. The respondent Government were represented by their Agent, Mr J. Wołąsiewicz of the Ministry of Foreign Affairs.
The facts of the case, as submitted by the parties, may be summarised as follows.
The applicant’s parents owned a property which was inherited by their children and a granddaughter in different shares. Apparently, the heirs could not agree on the common administration of the co-owned property. On 24 April 1989, the applicant instituted proceedings for the division of the estate and dissolution of the co-ownership. In her pleadings of 23 November 1989 the applicant also argued that she had acquired 1/2 of the property by prescription.
The hearing was held on 23 May 1990. As the applicant was absent and her attorney failed to submit relevant documents, the court decided to stay the proceedings. On 19 October 1990 the applicant requested the court to resume the proceedings.
On 4 April 1991, upon the applicant’s motion, the court made an interim order prohibiting the co-owners from selling their respective shares in the property pending the outcome of the proceedings.
On 31 December 1991, by a partial decision, the court dismissed the applicant’s motion whereby she claimed to have acquired 1/2 of the property by prescription. Upon the applicant’s appeal, the Skierniewice Regional Court quashed the decision and remitted the matter to the trial court for reconsideration. Having re-examined the applicant’s motion, on 3 November 1994, the Łowicz District Court issued a new partial decision. Upon the applicant’s and J.S.’s appeal, on 7 April 1995 the Skierniewice Regional Court again quashed the firstinstance decision and remitted the matter for reconsideration. Additionally, the court found ex officio that the last stage of the proceedings had to be in any event invalidated, as one of the participants had passed away and his successors were not represented.
In the meantime, on 14 November 1995 J.S. requested the court to quash the interim order of 4 April 1991 prohibiting the parties from selling their shares in the property. The applicant opposed the request and, on 12 January 1996, the request was dismissed and the original interim order was upheld.
Having examined the applicant’s motion for the third time, the Łowicz District Court rendered a partial decision on 10 February 1997. The applicant appealed on 7 March 1997. On 24 February 1998, the Skierniewice Regional Court quashed the impugned decision and remitted the matter to the first-instance court.
Having examined the applicant’s motion for the fourth time, on 7 June 1999 the Łowicz District Court issued a partial decision whereby it again dismissed the applicant’s motion. On 6 August 1999 the applicant filed an appeal.
On 21 May 2001 the Łódź Regional Court dismissed the applicant’s appeal. On 2 August 2001 the applicant filed a cassation appeal. On 3 August 2001 the Łódź Regional Court rejected the appeal as the applicant had failed to pay court fees. The applicant further requested the reinstatement of the time limit for filing a cassation appeal. This request was dismissed by the Łódź Regional Court and the applicant’s further appeal was rejected by the Supreme Court on 9 May 2002. At the hearing of 28 April 2003 the trial court heard the parties’ final submissions.
On 12 May 2003 two decisions were given: one quashing the interim order of 4 April 1999 and the other dismissing the applicant’s claim for the dissolution of the co-ownership.
On 23 June 2003 the applicant appealed against the former decision.
On 25 June 2003 the court ordered her to indicate the value of the land. She complied with the order on 7 July 2003.
On 30 June 2003 the applicant appealed against the decision dismissing her action.
By a decision of 30 April 2004 the court set aside the decision of 12 May 2003 quashing the interim order of 4 April 1999.
By a decision of 4 June 2004 the court upheld the decision of 12 May 2003 on the merits of the case.
On 6 August 2004 the applicant lodged a cassation appeal against this decision with the Supreme Court. By a decision of 8 February 2005 the Supreme Court refused to entertain the cassation appeal.
On 17 September 2004 the Law of 17 June 2004 on complaints about a breach of the right to a trial within a reasonable time (Ustawa o skardze na naruszenie prawa strony do rozpoznania sprawy w postępowaniu sądowym bez nieuzasadnionej zwłoki) (“the 2004 Act”) entered into force. It lays down various legal means designed to counteract and/or redress the undue length of judicial proceedings.
Section 18 of the 2004 Act lays down the following transitional rules in relation to applications already pending before the Court:
“1. Within six months after the date of entry into force of this law persons who, before that date, had lodged a complaint with the European Court of Human Rights ... complaining of a breach of the right to a trial within a reasonable time guaranteed by Article 6 (1) of the Convention for the Protection of Human Rights and Fundamental Freedoms ..., may lodge a complaint about the unreasonable length of the proceedings on the basis of the provisions of this law if their complaint to the Court had been lodged in the course of the impugned proceedings and if the Court has not adopted a decision concerning the admissibility of their case.
2. A complaint lodged under subsection 1 shall indicate the date on which the application was lodged with the Court.
3. The relevant court shall immediately inform the Minister of Foreign Affairs of any complaints lodged under subsection 1.”
For a more detailed presentation of the relevant domestic law see Ratajczyk v. Poland (dec.), no. 11215/02, ECHR 2005; Charzyński v. Poland (dec.), no. 15212/03, ECHR 2005.


ITEMID: 001-59481
LANGUAGEISOCODE: ENG
RESPONDENT: FIN
BRANCH: CHAMBER
DATE: 2001
DOCNAME: CASE OF K.P. v. FINLAND
IMPORTANCE: 3
CONCLUSION: Violation of Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award
JUDGES: Georg Ress
TEXT: 8. In February 1991 the applicant suffered a whiplash injury to her neck as a result of a traffic accident. Her insurance company P. paid her a disability allowance until the end of August 1991. In October 1991 the insurance company refused her a further allowance, considering her continuing disability to be caused by other physical illnesses from which she had been suffering prior to the accident. The Board for Accident Compensation (tapaturmalautakunta, olycksfallsnämnden) rejected her appeal. Her further appeal to the Insurance Court (vakuutusoikeus, försäkringsdomstolen) was rejected in November 1992 and the Supreme Court (korkein oikeus, högsta domstolen) refused her leave to appeal in March 1993.
9. Subsequently the applicant again applied to her insurance company for a disability allowance, now relying on a medical report of December 1993 concluding that she remained unable to work. This request was rejected in March 1994, the insurance company essentially having found that her medical condition had remained unchanged since the Insurance Court’s decision of November 1992. The applicant’s appeal was rejected by the Board for Accident Compensation in October 1994 after it had requested an opinion from the insurance company. This opinion was not communicated to the applicant but the company’s views were reproduced in the decision.
10. The applicant’s further appeal was rejected by the Insurance Court on 20 October 1995 after it had obtained a fresh opinion from the insurance company. This opinion, concluding in a proposal that the appeal be rejected, was not communicated to the applicant. Nor was it reproduced or summarised in the Insurance Court’s decision.
11. In 1992 the applicant’s insurance company I. rejected her request for a disability pension, having found that she was not disabled within the meaning of the legislation on employment-based pensions. Her appeal to the Pension Board (eläkelautakunta, pensionsnämnden) was rejected. Her further appeal to the Insurance Court was rejected in 1993.
12. The insurance company rejected the applicant’s renewed pension request in March 1994, referring to its previous decision and finding that the new evidence adduced did not warrant any change in the insurance company’s position. Her appeal to the Pension Board was rejected in June 1994 after it had obtained an opinion from the insurance company. This opinion proposing that the appeal be rejected was not communicated to the applicant, nor was it reproduced or summarised in the Pension Board’s decision.
13. The applicant appealed further to the Insurance Court which also requested an opinion from the insurance company. This opinion, again proposing that the appeal be rejected, was not communicated to the applicant. Nor was it reproduced or summarised in the Insurance Court’s decision of 14 September 1995 by which her appeal was rejected. The Insurance Court considered, in light of the evidence adduced, that the applicant’s ability to work was not so reduced as to render her eligible for an employment-based disability pension.
14. The applicant’s request for a national disability pension was rejected by the Social Security Institution (kansaneläkelaitos, folkpensionsanstalten) in March 1992. It found that, although she was still suffering from symptoms caused by her neck injury, her headaches and other symptoms as well as her depression, they were not causing her such inconvenience as to render her incapable of continuing her work as a laboratory assistant when no longer eligible for a daily allowance under the national health insurance scheme. Her appeal to the Appellate Board for Social Insurance (tarkastuslautakunta, prövningsnämnden; “the Appellate Board”) was rejected in August 1992 and her further appeal to the Insurance Court was rejected in May 1993.
15. The applicant’s renewed request for a national disability pension was rejected by the Social Security Institution on 18 April 1994. It found that she was still suffering from neck and shoulder pain, stiffness, aches, depression and insomnia. Her ability to function physically was nonetheless satisfactory. Given her overall state of health, she was able to continue working as a laboratory assistant or performing similar tasks. Accordingly, she could not be regarded as disabled within the meaning of the National Pension Act (kansaneläkelaki, folkpensionslagen 347/1956).
16. The applicant’s appeal to the Appellate Board was rejected on 15 December 1994 after it had requested an opinion from the Social Security Institution. This opinion was not communicated to the applicant nor was it reproduced or summarised in the Appellate Board’s decision. The Appellate Board considered, in light of all medical and other evidence, that the applicant was not to be regarded as disabled within the meaning of the National Pension Act.
17. The applicant appealed further to the Insurance Court, adducing further medical reports. The Insurance Court obtained an opinion from the Social Security Institution which was dated 27 March 1995 and concluded in a proposal that the appeal should be rejected. This opinion was not communicated to the applicant, nor was it reproduced or summarised in the Insurance Court’s decision of 18 September 1995 by which her appeal was rejected. The Insurance Court referred to the reasons invoked in the Appellate Board’s decision and found that the fresh evidence submitted did not call for any change in the assessment of the applicant’s ability to work.
18. At the relevant time the Insurance Court applied mainly the principles derived from the rules of procedure of the courts of appeal. Insofar as relevant, the Code of Judicial Procedure provided as follows. According to Chapter 25, sections 17 to 20, the opposing party was to be heard in proceedings before appellate courts. According to Chapter 25, section 19, subsection 1, a copy of the observations of the opposing party was to be forwarded to the appellant on request. According to Chapter 26, section 6, the court of appeal was to request written observations from the parties when it obtained evidence on its own initiative and such evidence could affect the decision in the case, unless such hearing of the parties was manifestly unnecessary.
19. From 1 April 1999 onwards the Insurance Court has been applying the Act on Administrative Judicial Procedure (hallintolainkäyttölaki, förvaltningsprocesslagen 586/1996) except with regard to extraordinary proceedings, in respect of which special rules apply (section 9 of the Act on the Insurance Court, as amended by Act no. 278/1999).
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-95240
LANGUAGEISOCODE: ENG
RESPONDENT: DEU
BRANCH: ADMISSIBILITY
DATE: 2009
DOCNAME: DZELILI v. GERMANY
IMPORTANCE: 3
CONCLUSION: Inadmissible
JUDGES: Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Peer Lorenzen;Rait Maruste;Renate Jaeger
TEXT: The applicant, Mr Dzevdet Dzelili, is a national of the Former Yugoslav Republic of Macedonia, who was born in 1971 and lives in Hamburg. He was represented before the Court by Mr. R. Ritter, a lawyer practising in Hamburg.
A prior application by the applicant (no. 65745/01) concerned the length of the same proceedings which are at issue here and was disposed of by judgment of 10 November 2005.
The facts of the present case, as submitted by the applicant, may be summarised as follows.
On 13 May 1994 two masked and armed man entered the house of L. in Norderstedt, a town close to Hamburg. When L., who owned a roofing business, and his wife returned home, they were threatened and beaten by the men, and forced to open their safe from which the two men stole money, stocks and jewellery worth around 1,600,000 German marks (DEM).
On 6 July 1996 the applicant was arrested in Wilhelmshaven. On 7 July 1996 the Wilhelmshaven District Court issued a warrant of arrest against the applicant on the ground that there was a strong suspicion that he had committed five offences of robbery, inter alia the robbery of L., and one count of robbery in connection with attempted murder.
On 4 November 1996 the Oldenburg Public Prosecutor’s Office charged the applicant with attempted murder, aggravated robbery causing physical injury, and an offence under the Federal Weapons Act.
On 18 February 1997 the Oldenburg Regional Court accepted the indictment without modifications and decided to open the main proceedings against the applicant and two other accused.
On 9 December 1996 a police informant (Vertrauensperson) was questioned by police officer M. in connection with the Norderstedt robbery.
The informant reported that in May 1994, around ten days after the robbery, he/she had heard in the “milieu” for the first time that an elderly couple in Norderstedt had been robbed. According to his/her information the robbery had been committed by an “Emin” and a “Zvonko”. Allegedly they had first broken in and entered the house of the elderly couple. Then, the man had appeared and was overpowered. Shortly afterwards the wife had entered the house and was overpowered as well. The couple was tied up and forced to reveal the hiding place of the safe from which around DEM 1,600,000 or 1,800,000 were taken. A certain “Djoni” who had given the tip for the robbery in Norderstedt had received some of the goods. As far as the informant remembered, each of the three had got around DEM 600,000. “Djoni” and “Emin” had opened a bistro in Wilhemshaven with this money. “Zvonko” had allegedly wasted much of the money. The informant further stated that he/she had also been told that shortly after the robbery the daughter of the robbed couple had appeared. The day of the robbery had been her birthday. Details of the robbery were not known to the informant. He/she had heard though that the men had stubbed out burning cigarettes on the bodies of their victims.
The informant had further reported that “Emin” and “Zvonko” were first names and that “Emin” was from Macedonia and “Zvonko” from Croatia. The last name of “Zvonko” was not known to the informant, “Emin’s” last name was Dellili, according to the informant. When he/she had been shown photos in 1995 by his/her supervisor he/she had recognised both men. During questioning in December 1996 the informant was again confronted with the same pictures and again recognised the two men.
The informant’s supervisor, who was also questioned by police officer M. on 9 December 1996 and who also remained anonymous, stated that he knew the identity of the informant and had worked with the person for years. In August 1994 the informant had told him about the robbery in Norderstedt in May. The supervisor further observed that what the informant had said when questioned by M. was essentially the same as the informant had told him in 1994.
The first trial started on 14 March 1997. However, the proceedings had to be abandoned later on because two lay judges fell ill; the trial was then reopened on 2 June 1998.
The applicant, who was represented by counsel during the trial, denied the charges and alleged that he had been in Tetovo, Former Yugoslav Republic of Macedonia, at the time of the robbery of L.
During the first trial, on 14 April 1997, the defence challenged the calling of police officer M. as a witness, arguing that they did not know the identity of the informant and whether the guarantee of confidentiality was according to the law. If the informant’s statements were introduced into the trial by way of hearing police officer M. as a hearsay witness the defence could not test the informant’s credibility.
On 15 May 1997 the Ministry for the Interior of Lower Saxony made a declaration refusing to reveal the informant’s identity (Sperrerklärung). The Ministry argued, inter alia, that the informant had been guaranteed confidentiality and that it was necessary to keep his/her identity secret in order to protect his/her life and limb, especially in view of the brutality of the crimes the accused were charged with.
On 13 and 24 June 1997 the Ministry of the Interior of Lower Saxony, relying on the reasons given in the declaration of 15 May 1997, submitted two more declarations refusing to reveal the identity of further informants and the informant’s supervisor.
During the second trial the Regional Court heard, inter alia, police officer M. as a witness regarding the statements made by the informant and the informant’s supervisor (see above, 2. Pre-trial investigations), two former cellmates of the applicant who claimed that the applicant had confessed to involvement in the robbery in Norderstedt to them, and also heard five counter-witnesses put forward by the defence.
On 16 March 2000 the applicant and his counsel lodged a request to take evidence by legal inspection through one of the judges of the court (richterliche Inaugenscheinnahme) to make sure that the informant existed. The applicant reasoned that the proceedings so far, as well as the exclusion of questions of the defence with a view to verifying the reliability of the informant, had led to the impression that this person was an invention of the police in order to cover up the identity of the real informant. Since questions regarding the knowledge of the informant had so far been refused, this exclusion violated the principle of fair trial. The applicant further requested:
“Questioning of the informant directly by video
+ multiple written questioning
+ person is an invention of the police!”
By decision of 14 June 2000 the Regional Court dismissed the applicant’s request as inadmissible. It argued that a legal inspection was inadmissible. Direct questioning of the informant would be in conflict with the Ministry of Interior’s refusal to reveal the informant’s identity. Irrespective of whether an optical and/or acoustic screening was admissible under German law, such questioning would run counter to the applicant’s request because the existence of the informant would not thereby be disclosed. The court further reasoned that the informant had already been questioned; the result had been introduced by hearing police officer M. as a witness. Regarding the allegation that the informant was “an invention of the police” the Regional Court found that this was a conclusion of the applicant, who moreover had not given evidence for it.
On 20 March 2001 the Oldenburg Regional Court pronounced its judgment. It found the applicant guilty of the robbery of L. and his wife in Norderstedt, convicted him of serious robbery and serious bodily harm and acquitted him of attempted murder (regarding a different robbery) and imposed a sentence of eight years’ imprisonment. The applicant’s co-accused were, inter alia, found guilty of attempted murder.
In its long and detailed decision the Regional Court based its conviction that the applicant had participated in the robbery on the statement of the informant, introduced through the testimony of police officer M. and corroborated by further evidence, as well as on the statements of the two former cellmates of the applicant.
The Regional Court noted that the first lead concerning the applicant’s involvement in the Norderstedt robbery had come from confidential information received by the police, verification of which had reinforced the suspicion towards the applicant and his co-accused.
Witness E., a police officer from the Norderstedt police department, reported in this context that in August 1994 an informant had provided another police officer, whose identity was confidential, with a lead regarding the robbery of a roofer and the involvement of two Yugoslavs named “Emin” and “Zvonko” as well as someone named “Jonni” who had provided the tip for the crime. Witness E. had neither met the informant nor knew his name.
Witness M., the police officer who had questioned the informant, testified that in November 1994 there had been a lead that the mentioned “Jonni” had opened a restaurant on the North Sea or Baltic coast. Further investigations had led to the Mozart Pub in Wilhelmshaven (a town on the North Sea) owned by a Djoni Kullaj. Then, in February 1996, an informant had revealed that an “Emin” was staying with a Yugoslav in Wilhelmshaven and had had a child with her, born in 1996. According to this information “Emin” was an Albanian and was considered to be the perpetrator of several robberies in Wilhelmshaven and Hamburg together with a “Zwonko Virant”. Approximately two years ago these two had, according to this information, robbed a couple who owned a roofing business close to Hamburg. A survey of all registered Yugoslav women in Wilhelmshaven had led to a woman who had named a Dzevdet Dzelili as the father of her child born in February 1996. The police had subsequently photographed persons entering and leaving the apartment of the woman and shown these photographs to the informant, who had recognised both men he/she had mentioned, “Zvonko” and “Emin”, in these pictures. The persons where later identified as Zvonko Cevisovic and Dzevdet Dzelili alias Alen Dosen.
The Regional Court observed in the reasoning of its judgment that the above outlined confidential information as well as the information received from the informant, as recalled during the trial by witness M. as interviewing officer, had proven to be correct in its essential points. Most of the information regarding the circumstances of the offence had been confirmed by the victims, Mr. and Mrs. L., who had been heard as witnesses at the trial. Only two parts of the informant’s statement had proven to be incorrect, namely the purported mistreatment of the victims with burning cigarettes and that the day of the offence had been the birthday of the victims’ daughter. However, the day of the offence was the birthday of the victims’ grandson and the victims’ daughter had indeed arrived shortly after the robbery together with her husband and the grandson. The Regional Court therefore found the statement regarding the daughter’s birthday to be a simple mistake, not only an accidental parallel. Furthermore, the informant’s statement regarding the takeover of a restaurant in Wilhelmshaven, namely the Mozart Pub, and the applicant’s involvement in this business together with the named “Djoni” or “Jonni” as well as the statement as to the stolen goods, had been confirmed by depositions of several witnesses. In this respect the Regional Court also noted that the DEM 1,600,000 to 1,800,000 stolen in the Norderstedt robbery provided an answer to the question as to how the applicant in June 1994 could afford to invest DEM 200,000 in a restaurant, a fact that had been established by witness testimony.
The Regional Court further based its conviction on the testimony of two former cellmates, according to whom the applicant had confessed to involvement in the robbery at issue. Given that one of the witnesses had not repeated his pre-trial statement to that effect in court but rather stated that he was not able to recall details, the police officer who had questioned him was heard as a hearsay witness. While the court expressed doubts as to the reliability (Glaubwürdigkeit) of the two witnesses in general, it was convinced that with regard to the applicant’s confession the statements were credible (glaubhaft), in particular because they were consistent with one another and contained personal details which could only have been passed on by the applicant himself and not, as alleged by the defence, been taken from the reasoning of the arrest warrant.
Upon request of the defence the court had also heard five prison inmates as witnesses who knew the two former cellmates of the applicant and, with one exception, stated that these two had intentionally made false statements regarding an alleged confession to obtain advantages for their own trials.
As to the applicant’s alleged alibi, the Regional Court heard witnesses and came to the conclusion that it did not preclude the applicant’s involvement in the crime because it was not continuous. Further witnesses from the Former Yugoslav Republic of Macedonia named by the applicant were summoned but informed the court that they would not appear.
On 22 March 2001 the applicant lodged an appeal on points of law against the Oldenburg Regional Court’s judgment.
The applicant alleged a violation of the Regional Court’s duty to clarify the relevant facts (Aufklärungspflicht) as well as a violation of the applicant’s right to question witnesses (Fragerecht). The applicant submitted that the Regional Court should have requested a review of the Ministry of the Interior’s declaration refusing to reveal the informant’s identity of 15 May 1997 in view of, inter alia, the time elapsed and the possibility of questioning by video link with acoustic and optical shielding. Also, in view of the applicant’s request of 16 March 2000, which should have been taken as a suggestion to take evidence (Beweisanregung), the Regional Court should have considered other possibilities of enabling the defence to question the informant. Because it was the Regional Court’s duty to counterbalance the handicaps resulting from maintaining the anonymity of the informant the Regional Court should furthermore not have dismissed the request for “multiple written questioning”. The applicant also submitted that the Regional Court had based his conviction to a decisive extent on the statements of an anonymous witness he had not been able to question, without documenting that it had treated these statements with adequate care.
On 11 September 2003 the Federal Court of Justice, following an oral hearing, confirmed the judgment of the Oldenburg Regional Court regarding the verdict (Schuldspruch). In respect of the sentence (Strafausspruch) the judgment was quashed and the case remitted to the Oldenburg Regional Court for renewed sentencing.
The Federal Court of Justice noted that the Regional Court had not had any reason to re-examine the Ministry’s declaration refusing to reveal the informant’s identity. In particular the newly created possibility of questioning the informant by video link according to Article 247 a of the Code of Criminal Procedure did not give rise to a request for reconsideration by the court; it could not dispel security concerns since anonymity would not be preserved. Acoustic and optical shielding during questioning by video link had at that time not been deemed admissible under domestic law. Furthermore, acoustic and optical shielding would not have been sufficient in the instant case, because the questions of the defence would have been targeted at the source of the informant’s knowledge and his/her relationship to the accused and would have thereby endangered the informant’s anonymity. According to Article 68 of the Code of Criminal Procedure such questions, while limited to the “necessary”, cannot be completely excluded. Therefore, the Regional Court could not and did not have to expect the Ministry of the Interior to consent to such a procedure.
Regarding an alleged violation of the applicant’s right to question witnesses according to 6 § 3 (d) of the Convention the Federal Court of Justice dismissed the appeal on points of law as inadmissible because the applicant had only requested “multiple written questioning” of the informant during the trial but had not submitted the intended questions with his request of 16 March 2000. Hence, it was impossible for the Federal Court of Justice to examine whether the Regional Court had in fact violated the applicant’s right to question a witness. Because the request of 16 March 2000 was unsubstantiated the Regional Court did not have to grant it.
The Federal Court of Justice further noted that the Regional Court had, as required by its case-law regarding the so called “corrective of the cautious assessment of evidence” (Korrektiv der vorsichtigen Beweiswürdigung), taken a cautious approach when assessing the statement of the anonymous witness, which was also corroborated by other evidence. Moreover, the statements of the applicant’s former cellmates constituted evidence entirely independent from the informant’s statement.
On 1 December 2003 the applicant lodged a constitutional complaint with the Federal Constitutional Court.
Before the Federal Constitutional Court the applicant argued that his right under Article 6 § 3 (d) of the Convention to question or have questioned witnesses of the prosecution had been violated. He submitted in particular that his conviction had been based to a decisive extent on the statements of the anonymous witness, who had not been heard in open court and who he or his counsel had had no opportunity to question.
In view of the case-law of the Court and the then novel possibility in national law to question witnesses by video link, the applicant argued that the Regional Court would have at least had to put the question of a video link, possibly with acoustic and optical shielding, to the Ministry of the Interior and ask whether it still upheld its declaration of 15 May 1997. While acoustic and optical shielding was at the time of the judgment of the Regional Court not approved by the Federal Court of Justice, the applicant submitted that its relevant decision dated from before the change in the law regarding questioning by video link. Since acoustic and optical shielding therefore no longer conflicted with domestic procedural law it should have been considered by the Regional Court.
With regard to the judgment of the Federal Court of Justice the applicant complained that it had not examined his submissions concerning possible questioning by video link under his right to question witnesses but only with regard to the Regional Court’s duty to clarify the relevant facts. He further submitted that the Federal Court of Justice was incorrect in requiring him to disclose specific questions he wanted to put to the informant.
On 17 September 2004 the Federal Constitutional Court refused to admit the applicant’s constitutional complaint for examination. It found that in view of the Court’s case-law, in particular van Mechelen and Others v. The Netherlands, the applicant’s right to a fair trial had not been violated.
In view of the inclination towards violence of the group of perpetrators and the resulting threat to the informant the Federal Constitutional Court found it acceptable that the lower courts had not requested the Ministry of the Interior to reconsider its almost four-year-old declaration refusing to reveal the informant’s identity, since a revocation of the declaration could not be expected. For these reasons the lower courts could also predict that the Ministry of the Interior would not consent to questioning by shielded video link.
Regarding the alleged violation of the applicant’s right to question witnesses the Constitutional Court found the submission of the applicant to be insufficiently substantiated. Since the Federal Court of Justice had in this respect dismissed the appeal on points of law as inadmissible the constitutional complaint had to meet special demands regarding its substantiation. In contrast, the applicant’s arguments against the decision of the Federal Court of Justice were based solely on sub-constitutional law and hence his constitutional complaint was inadequately reasoned in the eyes of the Constitutional Court.
Article 68. [Examination as to Witness’ Identity and Personal Details]
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(3) If there is reason to fear that revealing the identity or the place of residence or whereabouts of the witness would endanger the witness’ or another person’s life, limb or liberty, the witness may be permitted not to give personal details or to give details only in respect of an earlier identity. However, if so asked at the main hearing, he shall be required to state in what capacity the facts he is indicating became known to him. ...
(4) Where necessary, questions relating to circumstances justifying the witness’ credibility in the case at hand, particularly concerning his relationship with the accused or the aggrieved party, shall be submitted to him.
Article 244. [Taking of Evidence]
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(2) In order to establish the truth, the court shall, ex officio, extend the taking of evidence to all facts and means of proof relevant to the decision.
(3) An application to take evidence shall be rejected if the taking of such evidence is inadmissible. In all other cases, an application to take evidence may be rejected only if the taking of such evidence is superfluous because the matter is common knowledge, if the fact to be proved is irrelevant to the decision or has already been proved, if the evidence is wholly inappropriate or unobtainable, if an application is made to prolong the proceedings, or if an important allegation which is intended to offer proof in exoneration of the defendant can be treated as if the alleged fact were true.
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Article 247a. [Witness Examination in Another Place]
If there is an imminent risk of serious detriment to the well-being of the witness were he to be examined in the presence of those attending the main hearing and if that risk cannot be averted in some other way, namely by removing the defendant and excluding the public, the court may order that the witness remain in another place during the examination; ... The decision shall be incontestable. A simultaneous video transmission of the testimony shall be provided in the courtroom. The testimony shall be recorded if there are grounds to fear that it will not be possible to examine the witness at a future main hearing and if the recording is necessary to establish the truth. ...
For a request for evidence to be taken to be admissible it must necessarily identify a particular matter to be proven (Beweistatsache), the aim of the application (Beweisziel) and the evidence (Beweismittel). If an application is not sufficiently substantiated in this regard it can still be a suggestion to take evidence (Beweisanregung) or a request for evidence determination (Beweisermittlungsantrag) which the court must then consider under its duty to clarify the relevant facts.