ITEMID: 001-111410
LANGUAGEISOCODE: ENG
RESPONDENT: SVK
BRANCH: CHAMBER
DATE: 2012
DOCNAME: CASE OF KOKY AND OTHERS v. SLOVAKIA
IMPORTANCE: 3
CONCLUSION: Violation of Article 3 - Prohibition of torture (Article 3 - Effective investigation) (Procedural aspect);Pecuniary damage - claim dismissed (Article 41 - Pecuniary damage);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage)
JUDGES: David Thór Björgvinsson;Ján Šikuta;Lech Garlicki;Ledi Bianku;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä
TEXT: 7. The following incidents occurred on 28 February 2002. The detailed accounts of events by the parties and those involved are at variance at times. In this section, therefore, the incidents are described only briefly. Differing details, if any, are pointed out in the subsequent sections.
8. In the evening of 28 February 2002, at around 7.30 p.m., an argument started in a bar in the village of Gánovce-Filice, when a non-Romani waitress, I.S., refused to serve a drink to a person of Roma ethnic origin, M.K.
9. The argument developed with the tipping of a drink over M.K., in response to which he slapped or attempted to slap Ms I.S. in the face, accidentally knocking glasses over, which fell and broke.
10. Subsequently I.S. telephoned one of her three sons, P.S., who came to the bar soon afterwards. After he had left, another of her sons, M.S., who was the owner of the bar, came to the bar and remained there, assisting I.S. in serving customers, until closing time. Around that time, the girlfriend of P.S., E.N., also came to the bar and then accompanied I.S. home.
11. Later that evening, at around 9.45 p.m., a group of at least twelve people went into the Roma settlement in the village where the applicants lived. Some of them were wearing balaclavas and they were armed with baseball bats and iron bars.
12. Allegedly shouting racist language, they forcibly entered houses nos. 61, 67 and 69, damaging the interior and breaking the windows.
13. On entering house no. 67, the attackers physically assaulted applicant Mr Ján Koky. Some of the other applicants and another person, who were also present at the house during the attack, witnessed the attack but managed to avoid it by hiding (see paragraph 16 below).
14. Once the attackers understood that the police had been called, they made their escape. When they had gone approximately 200 metres from the settlement, they met applicants Mr Martin Kočko and Mr Rastislav Koky and physically assaulted them, causing them the injuries described below. Racist language is alleged to have been used during this part of the attack too.
15. House 61 was inhabited by applicant Ms Renáta Čonková and her partner, Z.K. They were both at home during the attack.
16. House 67 was inhabited by applicants Mr Ján Koky, Ms Žaneta Kokyová, Mr Rastislav Koky, Ms Renáta Kokyová, Ms Ružena Kokyová and Mr Ján Koky Jr and by a certain J.K.
Apart from applicant Rastislav Koky, they were all present at the house during the incident, and so were applicants Mr Milan Baláž and a certain H.B.
17. When the attack took place in his house, applicant Mr Ján Koky sustained no physical injuries.
18. House 69 was owned and inhabited by applicant Ms Justína Lacková.
19. The overall damage to the applicants’ property was estimated at the equivalent of at least 310 euros (EUR).
20. The parties are not united over the extent of the physical injuries sustained by Mr Martin Kočko and Mr Rastislav Koky (see paragraph 14 above).
21. The applicants claim that Mr Rastislav Koky suffered a skull fracture, a cut to the left side of the back of the head, a crushed left arm, a pressure injury to the left side of the back and bruises to the left knee, which required him to stay in hospital for ten to fourteen days.
22. As regards Mr Martin Kočko, the applicants claim that he had sustained a scraped elbow and a crushed arm, which required a recovery time of seven to ten days. In that respect the applicants relied on the decisions of 26 April and 22 May 2002 (see paragraphs 73 and 81 below).
23. In contrast, the Government submit that Mr Martin Kočko’s injuries necessitated no stay in hospital, while those of Mr Rastislav Koky only required him to stay in hospital for four days.
24. After I.S. had come home from her shift, an unknown person broke the window of her house by throwing a stone at it and also broke the windows of a car parked in her yard.
25. It is not entirely clear what relation this attack bore to the argument at the bar and the attack at the settlement, both in terms of time and of cause.
26. It appears that those present during the attack at I.S.’s house included I.S., P.S., E.N., her brother: M.N., and a certain M.L.
27. The police arrived at the Roma settlement about half an hour after the incident. That night and in the early hours of the following day, that is to say 1 March 2002, the police carried out inspections and interviews, as summarised below on the basis of official records.
28. Between 10.30 and 11 p.m. house no. 67 was inspected in connection with a suspected offence, which was referred to as “damage to family house”. Applicant Mr Ján Koky, who lived in the house, was present.
Broken windows were found in various parts of the house, and two biological traces were identified (bloodstains on a door and on a baseball bat) and sent for further analysis.
29. Between 0.15 and 1.00 a.m. house no. 61 was inspected in connection with a suspected offence, which was referred to as “damage to windows and door of a house”. Z.K., whose house it was, was present.
Damage to the latch and casing of the front door were identified, as well as broken panes in two of the windows. Inside the house, on the floor in the kitchen and a room where the windows had been broken, two stones of 8 and 20 cm diameter were found.
30. Between 1 a.m. and 1.30 a.m. the following day house no 69 was inspected in connection with a suspected offence, which was referred to as “damage to a window pane of a house”. Applicant Ms Justína Lacková, whose house it was, was present.
Broken panes in three windows were identified, and one biological trace was sampled for further analysis.
31. Applicant Mr Ján Koky, Z.K. and applicant Ms Justína Lacková were interviewed: the interviews started at 2.25 a.m., 3.45 a.m. and 4.30 a.m. respectively.
32. Mr Ján Koky submitted, inter alia, that earlier that evening a group of approximately five attackers had entered his house, no. 67. They had been armed with batons and had tried to hit him. He managed to fend them off and other occupants of his house had managed to hide, so the attackers had mainly been hitting the kitchen furnishings. Four of the attackers were wearing balaclavas to conceal their faces. The remaining one, whom he did not know, had no balaclava. They had not uttered a word.
33. Z.K. described how the attackers had broken windows in his house, no. 61, had forcibly entered and had made their escape after learning that the police were on their way. According to the transcript, the interview ended at 4.20 a.m. Z.K. then added that when they entered his house the attackers were shouting: “Gypsies, we’re going to strike you down today”.
34. Ms Justína Lacková submitted that she had been at home with her three minor children during the attack and that her husband had not been there. She had witnessed the turmoil outside her house through a window. Two of her house windows had subsequently been broken, probably with sticks, because no stones or other foreign objects had been found inside. In her submission, the attackers had pounded at her entrance door but had not succeeded in getting in. Ms Lacková assessed the damage to her house and submitted a claim for compensation to the proceedings. The interview was concluded at 5.15 a.m. and then reopened to pose a direct question to the applicant, in response to which she retorted that, on the part of the attackers, she had only heard indistinct shouting. The interview was finally concluded at 5.30 a.m.
35. On 1 March 2002 the Poprad District Police Investigator (“the DPI”) initiated a criminal investigation into the offences of causing bodily harm, violating the privacy of a home and criminal damage within the meaning of Articles 221 § 1, 238 §§ 1 and 3 and 257 § 1 of the Criminal Code (Law no. 140/1961 Coll., as applicable at that time) respectively.
36. It was suspected that a group of at least twelve individuals had unlawfully entered houses nos. 61, 67 and 69, and that they had damaged these houses, as well as house no. 69. It was also suspected that while at his house the attackers had tried to hit applicant Mr Ján Koky with baseball bats and that while making their escape from the scene of crime, they had assaulted applicants Mr Martin Kočko and Mr Rastislav Koky by hitting them with baseball bats and kicking them, thus causing them bodily injuries on account of which, according to a preliminary estimate, they would need recovery time and would be unfit for work for seven to ten days and ten to fourteen days respectively.
37. The injuries to the applicants Mr Martin Kočko and Mr Rastislav Koky were also assessed in an expert medical report procured by the DPI, in which their recovery time was assessed at four weeks and thirteen days respectively.
38. On 1 and 4 March 2002 respectively, an official note was made in the investigation file summarising the applicants’ submissions and a document was included in it outlining the investigation strategy.
39. On 5 March 2002 at 10.00 and 10.50 a.m. respectively, the DPI interviewed I.S. and P.S. They described their involvement in the incident at the pub and the subsequent attack which took place at I.S.’s house and on his car. I.S. submitted, inter alia, that she had closed the bar and had gone home at around 9.50 p.m. P.S. submitted that the closing time of the bar was 10 p.m. and that his mother had arrived home after that time.
40. On 7 March 2002 the DPI reported to the Ministry of the Interior on the status of the investigation. It was mentioned, inter alia, that the applicants’ legal representative had been obstructing the investigation, in that he had instructed the applicants not to accept summonses to interviews if handed to them in person, and not to take part in any interviews unless he was present. The qualification of the representative to appear on the applicants’ behalf in criminal proceedings in Slovakia was also called into question.
41. In the morning of 12 March 2002, the DPI interviewed applicant Mr Rastislav Koky, T.K. and M.K. and applicants Mr Ján Koky Jr. and Mr Martin Kočko. These interviews started at 8.20, 9.15, 9.45, 10.10 and 10.40 respectively.
42. Mr Rastislav Koky described the pub incident between I.S. and M.K. According to him, following the altercation I.S. had called P.S., who had arrived within five minutes, and who had warned Mr Koky that another son of I.S. would come round and there would be trouble. He also submitted that, later that evening, about thirty men had caught and beaten him, that he had subsequently had to be taken to hospital by ambulance, that he had been hospitalised for three to four days and that due to his injuries he was still unfit for work. In response to a direct question, Mr Rastislav Koky submitted that “during the attack, none of the attackers uttered a word”.
43. T.K. and M.K. submitted that on the evening of the incident they had seen I.S. with a group of forty to fifty men approaching the Roma settlement.
44. Mr Ján Koky Jr. described the pub incident, including the remark that P.S. had told him and others to go away because his brother would come and there would be trouble. Mr Ján Koky Jr. also submitted that, after he had seen his brother, applicant Mr Rastislav Koky, and his injuries, he had been convinced that P.S. was responsible. He had therefore gone to I.S.’s house, where he had had a verbal exchange with E.N. and M.N. However, he had gone away after the latter had produced a handgun and threatened to shoot him.
45. Mr Martin Kočko described the pub incident, the arrival of P.S. in the pub, the departure of about forty-five men and the assault on him by four individuals wearing balaclavas to conceal their faces and two without, accompanied with a cry “Negroes, gypsies, we’re going to kill you”. After receiving medical care in hospital, he had gone home and had not been hospitalised.
46. During the morning of 13 March 2002 the DPI interviewed applicants Mr Milan Baláž, Ms Žaneta Kokyová, Ružena Kokyová and Mr Ján Koky. They also interviewed H.B., the respective interviews having commenced at 8.50, 9.20, At 9.50, 10.25 and at 10.55.
47. Mr Milan Baláž submitted his account of the assault at house no. 67, where he had been present at the relevant time, visiting his girlfriend. In his submission, the assault had been accompanied by a shout of “Gypsies get out, we’re going to kill you!”
48. Ms Žaneta Kokyová, who lived in house no. 67, gave an account of the assault at their house and settlement, submitting that it had been accompanied by shouts of “Get out!”, “[religious expletive], gypsy whores, gypsy gang, get out, or else we are going to kill you all!” and “Gypsy whores, today you are dead, you are going to get a kicking today!”.
49. Ms Ružena Kokyová gave an account of the attack at her house, no. 67, submitting that it had been accompanied by a male voice shouting “Gypsies, black muzzles, today you are going to get killed, get out!”.
50. Mr Ján Koky gave an account of the attack at house no. 67, where he lived, submitting that it had been accompanied by shouts of “Gypsies, today you are going to be burned”.
51. H.B., who was in house no. 67 during the attack, gave an account of it and submitted that it had been accompanied by shouts of “Gypsies, black muzzles, get out!”
52. On 13 March 2002 the DPI initiated a criminal investigation into a further offence, namely that of violence against an individual or a group of individuals within the meaning of Article 196 §§ 1 and 2 of the Criminal Code.
53. The decision was based on the suspicion that, in the incident described above, several unidentified individuals had entered the Roma settlement shouting “Gypsies, come out or we will kill you”, while some of them had gone into houses 61 and 67 shouting “Gypsies, come out or we will kill you”.
54. The decision refers to the charges of 1 March 2002 and to subsequent statements from H.B., T.K., M.K. and applicants Mr Ján Koky, Mr Martin Kočko, Ms Žaneta Kokyová, Mr Milan Baláž, Mr Rastislav Koky, Ms Ružena Kokyová and Mr Ján Koky Jr.
55. The decision also refers to the assault on applicant Mr Martin Kočko being accompanied by shouts of “Negroes, gypsies, we will kill you!”.
56. The series of interviews started at 8 a.m. with P.J., continued at 8.35 a.m. with Ms E.N., and at 9.10 a.m. with the last son of I.S.: M.S.
57. P.J. said that he could see that I.S. was distressed when he arrived at the bar. E.N. described her arrival at the bar and what happened while she was there, that she went with I.S. to her house, and the subsequent incident there. The deposition of M.S. was fully in line with those of his family members.
58. In the morning of 20 March 2002 the DPI interviewed applicant Ms Renáta Čonková, J.K. and applicant Ms Renáta Kokyová, whose interviews began at 9.10, 9.45 and 10 a.m. respectively.
59. Ms Renáta Čonková gave an account of the attack at the house of applicant Ján Koky, which she had observed through the window of her own house. In her submission, the attack at the house of the applicant Ján Koky was accompanied by a shout of “Black whores, today we’re going to kill you!”. As to Ms Čonková’s own house, five windows had been broken by thrown stones which were found inside. The attackers had only got as far as a corridor in the house before they made their escape.
60. J.K. gave an account of the attack at house no. 67, in which she lived. In her submission, the attack was accompanied by a shout of “Gypsy whores, today you will kick the bucket”.
61. Ms Renáta Kokyová gave an account of the attack at house no 67, where she lived. In her submission, the attack was accompanied by a shout of “Gypsy whores, today we’re going to kill you”.
62. The morning of 27 March 2002 saw a long series of short interviews, starting at 8 with applicant Mr Ján Koky, at 8.10 with applicant Ms Ružena Kokyová, at 9 with H.B., at 9.30 with J,K,, at 9.35 with applicant Mr Rastislav Koky, at 9.40 with applicant Ms Renáta Kokyová, at 9.45 with applicant Mr Milan Baláž, at 9.50 with applicant Ms Žaneta Kokyová, at 9.55 with Z.K., at 10.05 with applicant Ms Renata Čonková, at 10.10 with applicant Ms Justína Lacková, and at 10.25 with applicant Mr Martin Kočko.
63. Mr Ján Koky, Z.K. and J.K. completed their respective depositions of 1 and 20 March 2002 in so far as the extent of the material damage they had sustained was concerned, and added a claim for compensation to the proceedings.
64. Ms Justína Lacková specified the damage she stated she had sustained and for which she was seeking compensation.
65. Ms Ružena Kokyová, HB, Ms Žaneta Kokyová, Mr Milan Baláž, Ms Renáta Kokyová and Ms Renáta Čonková completed their respective depositions of 13 and 20 March 2002 and declared that they had no compensation claim to join to the proceedings, as they themselves had not sustained any material damage. Ms Renáta Kokyová added that compensation for any damage sustained by their family would be claimed by her husband.
66. Mr Rastislav Koky and Mr Martin Kočko completed their respective depositions of 12 March 2002 in that they specified that, as a result of the injuries sustained in the attack, Mr Rastislav Koky had been incapable of work for fourteen days, from 28 February to 14 March 2002, and Mr Martin Kočko was still unable to work.
67. At 8 a.m. on 10 April 2002 the DPI started interviewing applicant Mr Ján Koky Jr, who completed his depositions of 1 March 2002 in so far as the extent of the material damage he had sustained was concerned, and added a claim for compensation to the proceedings.
68. Without providing any details the Government submitted that “[the authorities] had requested records of incoming and outgoing communication to and from mobile phones of [I.S.], [M.S.], [P.S.] and [E.N.]”.
69. On 10 April 2002 the DPI held an identity exercise, in the course of which the participants were to identify presumed perpetrators from photographs in albums. It produced the following results:
- applicant Mr Ján Koky identified one person, with a subjectively perceived probability of seventy to eighty percent, as one of the people who had been attacking him in his house;
- applicant Mr Martin Kočko recognised one individual, who had been present at the pub during the argument, but had not been among those who had beaten him. He also identified one individual who had been among those who had beaten him, of which he was sixty percent sure.
- applicant Ms Žaneta Kokyová identified one individual, with a subjectively perceived probability of fifteen to twenty percent, as an intruder in their house and an attacker of her father;
- applicant Mr Rastislav Koky recognised two individuals who had been present at the pub during the argument but had not been among those who had beaten him. He also identified one individual who had been present at the settlement during the attack but was not sure whether that individual had beaten him; and
- applicants Mr Milan Baláž, Ms Renáta Kokyová and Mr Ján Koky Jr. did not identify anyone.
70. In what may appear to be a follow-up to the identity exercise, on 19 April 2002, the DPI requested the Police Institute of Forensic Analysis to examine buccal mucus samples of three individuals, B.B., V.P. and E.K. and to compare biological material thus obtained with other biological evidence taken from the scene of crime.
71. On 26 April 2002 the DPI suspended the above-mentioned criminal investigations. The decision stated that the police had taken several investigative measures and had carried out a search with a view to establishing the identity of the perpetrators of the assault of 28 February 2002. Until then, however, no evidence could be established which would have made it possible to bring charges against a specific person.
72. The decision of 26 April 2002 also stated that it was established that the incident at the Roma settlement “had been preceded by an assault on a waitress, I.S., by a Roma, M.K., and subsequent damage to the property of the family of I.S. by a hitherto unidentified Roma and so the actions of the unidentified perpetrators [could] not be considered or qualified as a criminal offence with a racial motive, because it [had come] down only to an act of retribution”.
73. As to the injuries sustained by applicants Mr Rastislav Koky and Mr Martin Kočko, the decision refers to the decision of 1 March 2002 and its contents (see paragraph 36 above).
74. On 3 May 2002 applicants Mr Ján Koky and Mr Rastislav Koky lodged an interlocutory appeal (sťažnosť) against the decision to suspend the investigation. Referring to the facts of the case, they submitted that the assault had been racially motivated and that it had been organised by people who were close to the family of the waitress concerned. Citing, inter alia, Articles 5 and 13 of the Convention, they sought resumption of the investigation.
75. On the same day, namely 3 May 2002, the Poprad District Prosecutor (Okresná prokuratúra) (“the District Prosecutor”) issued a written instruction to the DPI specifying the measures to be taken and lines of inquiry to be pursued in order to establish the identity of the perpetrators and highlight the alleged racial motive.
76. Still on 3 May 2002, the DPI took a decision to resume the investigation. That decision contains a summary of the previous procedural developments, followed by a plain statement, without further elucidation, that “during further investigation it [had been] established that a racially motivated criminal offence [was] implicated and therefore it [was] necessary to take further investigative steps and resume the investigation ...”.
77. On 14 May 2002 the Police Forensic Analysis Institute filed a report with the DPI concluding that, having examined the biological material of B.B., V.P. and E.K. (see paragraph 70 above) and having compared it with the material taken from the crime scene, no link could be established.
78. In the morning of 20 May 2002, at 8.40, 8.50, 9 and 9.15 respectively, the DPI commenced interviewing M.S., P.S. and F.S., as well as M.N. They completed their respective submissions of 14 March, 19 March, 17 April and 3 May 2002 and agreed to provide buccal mucus samples for the purposes of DNA testing and comparison with the biological material taken from the crime scene.
79. On 21 May 2002 at 8 am the DPI commenced interviewing M.L., who gave an account of his arrival in the village and at the bar and also of his perception of the incident at the house of I.S. He stated that he had not been at the Roma settlement.
80. The following day the DPI again requested the Police Forensic Analysis Institute to analyse and compare biological material obtained from the three sons of I.S., M.N. and M.L. with the material taken from the scene of crime.
81. On 22 May 2002 the District Prosecutor declared the interlocutory appeal of applicants Mr Ján Koky and Mr Rastislav Koky of 3 May 2002 (see paragraph 74 above) inadmissible, replying on Articles 43, 124 § 1, 148 § 1 (b) and 173 § 4 of the CCP, and holding that as victims of the alleged offences the appellants had no standing to challenge the decision in question.
82. In its concluding part, which under the applicable procedural rules (see paragraph 125 below) contains information concerning available remedies, the decision provided that: “An interlocutory appeal against this decision is not permissible.”
83. However, in a letter of the same date, namely 22 May 2002, the District Prosecutor informed the applicants that she had reviewed the matter on her own authority, that on 3 May 2002 (see paragraph 75 above) she had quashed the decision, and that she had instructed the DPI to carry on the investigation so as to clarify the events without leaving any doubt as to the identity and motive of the alleged perpetrators.
84. At 8 a.m. on 23 May 2002 the DPI commenced interviewing E.K. During the morning of 4 June 2002 they interviewed R.S. (at 8.30), I.K. (8.45), J.H. (9.00) and M.K. (9.10). On 6, 7 and 18 June 2002 respectively the DPI interviewed J.K. (at 10 a.m.), P.P. (at 10 a.m.) and B.P. (before 9 a.m.).
85. They all had either already provided or agreed to provide buccal mucus samples for the purposes of DNA testing and comparison with the biological material taken from the scene of crime.
86. In addition, E.K. submitted that he had not been at the Roma settlement and that he had no explanation of how he could have been identified as someone involved in the attack.
87. R.S. acknowledged having been at the bar with B.P. and J.K. (see paragraphs 91 and 93 below) during the incident, which however he had not seen, and he had no information concerning the event investigated.
88. I.K. stated that he had no knowledge of the incident, of which he had learned from the media, and that he had not been at the Roma settlement.
89. J.H. had been away on a skiing trip from 28 February until 1 March 2002.
90. M.K. had been away on business in the week in question and had only returned on 1 March 2002.
91. J.K. had been at the bar during the incident, but had not witnessed it directly. He had not been at the Roma settlement and had no knowledge of who had been there.
92. P.P. acknowledged knowing M.S. However, he had not been at the Roma settlement, remembered nothing useful and had no explanation of why one of the victims had identified him as someone involved in the attack which took place in their house.
93. B.P. acknowledged having been at the bar with R.S. and J.K. (see paragraphs 87 above and 91 above), but he had not directly witnessed the incident. He had not been at the Roma settlement, nor did he have any knowledge of anyone who had been there.
94. On 18 June 2002 the Police Forensic Analysis Institute reported to the DPI that, having examined the biological samples taken from F.S., P.S., M.S., M.N. and M.L. (see paragraph 80 above) and having compared it with the material taken from the scene of crime, no link could be established.
95. On 26 June 2002 the DPI again suspended the investigation, relying on Article 173 § 1 (e) of the CCP, and referring to similar considerations to those in the decision of 26 April 2002. It summarised previous procedural developments and observed that, despite additional information taken from H.B., T.K., M.K. and applicants Mr Ján Koky, Mr Martin Kočko, Ms Žaneta Kokyová, Mr Milan Baláž, Mr Rastislav Koky, Ms Ružena Koky and Mr Ján Koky Jr., it had not been possible to establish any evidence allowing charges to be brought against any specific person. However, it was considered established that the attack at the Roma settlement had been preceded by the incident at the bar and had been followed by the attack at the house of the family of Ms I.S.
96. On 3 July 2002 applicants Mr Ján Koky and Mr Rastislav Koky lodged an interlocutory appeal against the decision of 26 June 2002, requesting that the criminal proceedings be resumed with a view to establishing the relevant facts of the case.
97. The appellants relied on Articles 5, 6, 8, 13 and 14 of the Convention, 1 of Protocol No. 1 and 15 and 21 of the Constitution and referred to the results of the identity exercise on 10 April 2002. In particular, they emphasised that, on that occasion, applicant Mr Martin Kočko had recognised one person; applicant Mr Rastislav Koky had recognised F.S. and submitted that the organisation of the attack had had a connection with the family of I.S.; and applicants Mr Ján Koky and Ms Žaneta Kokyová had recognised one person each.
98. On 11 July 2002 the applicants’ representative wrote to the Prosecutor General to inform him that they had lodged an interlocutory appeal against the decision of 26 June 2002 with the District Prosecutor and that they suspected that the investigation had been tampered with in order to downplay the racial motive for the assault. He requested that the applicants be informed of the Prosecutor General’s office’s actions in the matter.
99. The applicants have not received any answer to their letter of 11 July 2002, and it appears that it has not given rise to any specific action or decision. According to an official statement of the Office of the Prosecutor General the letter is not a part of their case file.
100. On 17 July 2002 the District Prosecutor declared the interlocutory appeal inadmissible on similar grounds to those in the decision of 22 May 2002, relying on Articles 43, 142 § 1 a 173 of the CCP.
101. The decision contains information as to the available remedies, to the effect that: “An interlocutory appeal against this decision is not permissible.”
102. Nevertheless, the District Prosecutor reviewed the decision on her own initiative and, by a letter of the same day, namely 17 July 2002, informed the appellants that the DPI had taken all the actions necessary to carry out a successful prosecution.
103. According to the letter, it was true that applicant Mr Rastislav Koky had recognised P.S., F.S. and M.N., but he had submitted either that they had not beaten him or that he was not sure whether they had beaten him. Applicant Mr Ján Koky had recognised F.S. and had submitted that it was the latter who had beaten him in his house. This submission however contradicted a previous submission by applicant Mr Ján Koky (see paragraph 32 above) to the effect that, of the five attackers in his house, four were wearing balaclavas and one, whom he did not know, was not. It was also observed that Ms Žaneta Kokyová had not recognised any of the attackers.
104. The letter further states that additional action had been taken with a view to identifying those responsible, such as a comparison of the traces found at the scene of the incident with buccal mucus samples from the suspects, but the available evidence did not permit the bringing of charges against any particular person.
105. Meanwhile, on 11 July 2002 and again on 19 August and 8 November 2002, the DPI interviewed seven other individuals. These interviews however produced no useful new information.
106. On an unspecified date, in response to a request of 20 August 2002, the Police Institute of Forensic Analysis reported to the DPI that, having examined buccal mucus samples from P.G., M.S. and M.A. and compared it with the biological material taken from the scene of crime, no link could be established.
107. On 13 January 2003, in response to a request, the DPI reported to the District Prosecutor that hitherto “no perpetrator had been identified and that tasks were continuously being carried out under an integrated investigation plan”.
108. No information has been made available in respect of any further investigative actions and their outcome.
109. On 17 September 2002 all ten applicants lodged a complaint with the Constitutional Court under Article 127 of the Constitution. Represented by a lawyer, they contended that the events of 28 February 2002 had not been sufficiently thoroughly and efficiently investigated to ensure that those responsible were identified and punished. In particular, they submitted that the authorities had failed to draw adequate conclusions from the oral evidence and from the information concerning the identity of the alleged perpetrators, as obtained from the identity exercise of 10 April 2002. In addition, the authorities should have taken and assessed further evidence, such as records of mobile telephone communications between those involved, but had not done so. The applicants also contended that the assault had not been motivated by revenge but was racially motivated, to which the authorities had failed to pay adequate attention.
110. In the text of their complaint the applicants made reference to Article 1 § 2 of the Constitution (Constitutional Law no. 460/1992 Coll., as amended), in conjunction with a principle of “general acceptance and observance of human rights and basic freedoms for everybody”, Articles 5 § 1 and 13 of the Convention and the Court’s judgment in the case of Aksoy v. Turkey (18 December 1996, Reports of Judgments and Decisions 1996VI).
111. In the standardised prescribed form containing a summary of their claim, the applicants applied for a ruling declaring a violation of their right to an effective remedy under Article 13 of the Convention and to judicial and other legal protection under Article 46 § 1 of the Constitution by actions of the DPI in the investigation referred to above.
112. On 23 October 2002 the Constitutional Court declared the complaint inadmissible on the ground that the applicants had failed to exhaust all remedies as required by section 53(1) of the Constitutional Court Act (Law no. 38/1993 Coll., as amended).
113. In particular, the Constitutional Court held that it had been open to the applicants to ask the Public Prosecution Service (“the PPS”), under Articles 167 and 174 § 2 (a) and (c) of the CCP, to instruct the DPI to proceed with the case. Had such a request been dismissed, the applicants could have used further remedies available to them under sections 31 et seq. of the PPS Act.
No appeal against the decision of the Constitutional Court was available.
114. Article 1 § 2 provides that:
“The Slovak Republic acknowledges and adheres to general rules of international law, international treaties by which it is bound, and its other international obligations.”
115. In so far as relevant, Article 15 stipulates that:
“1. Everyone has the right to life. [...]
2. No one shall be deprived of life.
...
3. No infringement of rights according to this Article shall occur if a person has been deprived of life in connection with an action not defined as unlawful under the law.”
116. Article 21 § 1 provides that:
“The home shall be inviolable. Entry without the consent of the person living there is not permitted.”
117. Article 46 § 1 of the Constitution reads as follows:
“Everyone may claim his or her right by procedures laid down by an act of parliament before an independent and impartial court of law or, in cases provided for by an act of parliament, before another organ of the Slovak Republic.”
118. Pursuant to Article 127:
“1. The Constitutional Court shall decide complaints by natural or legal persons alleging a violation of their fundamental rights or freedoms ... unless the protection of such rights and freedoms falls within the jurisdiction of a different court.
2. If the Constitutional Court finds a complaint justified, it shall deliver a decision stating that a person’s rights or freedoms as set out in paragraph 1 have been violated by a final decision, specific measure or other act, and shall quash such a decision, measure or act. If the violation that has been found is the result of a failure to act, the Constitutional Court may order [the authority] which has violated the rights or freedoms to take the necessary action. At the same time it may remit the case to the authority concerned for further proceedings, order that authority to refrain from violating the fundamental rights and freedoms ... or, where appropriate, order those who have violated the rights or freedoms set out in paragraph 1 to restore the situation to that existing prior to the violation.
3. In its decision on a complaint the Constitutional Court may grant appropriate financial compensation to a person whose rights under paragraph 1 have been violated.”
119. Article 31a reads as follows:
“Unless this Act provides otherwise or it is excluded by the nature of the matter, the proceedings before the Constitutional Court shall be subject to application mutatis mutandis of the provisions of the Code of Civil Procedure and the Code of Criminal Procedure.”
120. Under the relevant part of section 53(1) and (2):
“1. A[n] [individual] complaint is not admissible if the complainant has not exhausted legal remedies or other legal means, which a statute effectively provides to [the complainant] with a view to protecting [the complainant’s] fundamental rights or freedoms, and which the complainant is entitled to use under special statute [such as the Civil Procedure Code and the Administrative Procedure Code].
2. The Constitutional Court shall not declare a[n] [individual] complaint inadmissible even if the condition under paragraph 1 has not been fulfilled, if the complainant establishes that [the complainant] has not fulfilled this condition due to reasons worthy of particular consideration.”
121. The purpose of the CCP is defined in its Article 1 § 1 as follows:
“The purpose of the [CCP] is to regulate actions of the agencies involved in criminal proceedings with a view to establishing properly whether criminal offences have been committed and to punishing perpetrators lawfully and justly. The proceedings must work for reinforcement of compliance with the law, for prevention and obstruction of crime, [and] for the education of citizens in the spirit of consistent compliance with the law and rules of civic coexistence, as well as honest fulfilment of duties towards the State and the society.”
122. The fundamental principles of criminal proceedings are laid down in Article 2, the relevant parts of paragraphs 3 and 5 of which provide:
“3. The prosecutor is duty bound to prosecute all criminal offences of which [he or she] has been apprised; any exception is permissible only under statue or a promulgated international treaty.
5. The agencies involved in criminal proceedings shall proceed so that the facts of the matter are duly established, to the extent which is absolutely necessary for their decision. With equal care, they shall elucidate circumstances both against and in favour of the charged person and, in both respects, they shall take and examine evidence without awaiting the parties’ proposals....”
123. The role of victims of crimes in criminal proceedings is defined in section (Oddiel) five of chapter (Hlava) two in part (Časť) one. The relevant part of its Article 43 § 1 provides as follows:
“1. A victim is a person upon whom a criminal offence has inflicted health damage, property damage, non-pecuniary damage or other damage or it has violated or jeopardised [his or her] rights or freedoms protected by law. A victim has... the right to lodge [in the proceedings] [his or her] claim for damages; to propose that evidence be taken, examined and completed; to take part in the hearing,...; to comment on the evidence taken and examined...; and to make use of legal remedies to the extent defined by the CCP...
2. A victim who has a lawful claim against a person facing charges for compensation in respect of damage inflicted [on the victim] by a criminal offence, shall be entitled to propose that, in a judgment leading to conviction, the court should impose a duty on the accused to compensate for that damage. The proposal shall be made at the latest during the main court hearing before the presentation of evidence. The proposal has to be clear as to the ground and the amount of damages claimed.”
124. Section 3 of Chapter 3 in Part 1 contains rules concerning the making of and dealing with applications, the relevant part of its Article 59 § 1 providing that:
“An application shall be assessed according to its content, irrespective of whether it is incorrectly named.”
125. Section 2 of Chapter 6 in Part 1 lays down rules concerning decisions (uznesenie), paragraph 134, the relevant part of which is cited below, defining the attributes, structure and content of a decision:
“1. A decision must contain...
e) information about available remedies.”
126. Chapter 7 in Part 1 regulates interlocutory appeals against decisions, their admissibility being defined in Article 141, the relevant part of which provides:
“1. A remedy in respect of decisions consists of an interlocutory appeal.
2. An interlocutory appeal shall be available against any decision of an investigator or a police authority except for a decision on the opening of a criminal prosecution (Article 160). A decision by a court or by a prosecutor may be challenged by an interlocutory appeal only in those instances where the statute expressly so provides and if [a matter] is being decided on at first instance.”
127. Article 142 contains locus standi for such appeals, as follows:
“1. Unless provided for otherwise by a statute, an interlocutory appeal may be lodged by a person who is directly affected by the [impugned] decision or who has prompted the decision by a request which [the appellant] was entitled to make by law....”
128. Section 2 of Chapter 10 in Part 2 regulates investigations, Article 167 providing for the possibility of having an investigator’s actions reviewed, in the following terms:
“The person facing charges and the victim shall have the right at any time in the course of the investigation to demand that a prosecutor [ensure] that delays in the investigation or shortcomings on the part of the investigator be eliminated. The right to make such a demand shall not be restricted by any time-limit. This demand, which must be submitted to the prosecutor at once, must be dealt with by the prosecutor without delay. The outcome of the review must be notified to the person making the demand.”
129. Section 4 of Chapter 10 in Part 2 deals with decisions at the preliminary stage of the proceedings, the relevant part of Article 173 providing that:
“1. An investigator shall suspend criminal proceedings...
(e) if it has been impossible to identify evidence allowing for the prosecution of a particular person...
3. Prior to suspending criminal proceedings everything needs to be done which is necessary for securing a successful completion of a criminal prosecution. Should there no longer be any reason for the suspension, the criminal proceedings shall be resumed.”
130. Section 5 of Chapter 10 in Part 2 regulates the prosecutor’s supervision of adherence to lawfulness in pre-trial proceedings, the relevant part of Article 174 providing that:
“1. Supervision of lawfulness in pre-trial proceedings shall be carried out by the prosecutor.
2. While carrying out this supervision, the prosecutor shall have the power:
(a) to give binding instructions for the investigation of criminal offences...
(c) to take part in activities carried out by an investigator or a police authority or directly to take a particular action, to carry out the entire investigation and to take a decision on any matter whereby the provisions of [the CCP] normally applicable to an investigator shall apply to the prosecutor mutatis mutandis and, as a decision of an investigator, the decision by the prosecutor shall be challengeable by an interlocutory appeal.”
131. The Act entered into force on 1 May 2001, replacing previous legislation (Law no. 314/1996 Coll., as amended). The object of the Act is defined in its section 1, which reads as follows:
“1. This Act determines the status and jurisdiction of the Public Prosecution Service, the status and jurisdiction of the Prosecutor General, the status of other prosecutors, organisation and administration of the Public Prosecution Service.
2. The status of prosecutors; their rights and obligations; the establishment, modification and termination of [their] service relationship and the claims ensuing from it; the relationships of responsibility; disciplinary proceedings and selfgovernance of prosecutors shall be subject to a special statute.”
132. Petitions to the PPS are regulated by Part (Časť) four of the Act. Pursuant to the relevant part of its section 31:
“1. A prosecutor may examine the lawfulness of actions and decisions of bodies of public administration, prosecutors, investigators, police authorities and courts in so far as a statute so provides, including upon a petition, and is entitled to take measures to rectify established violations, provided [such measures] do not fall under a special statute within the exclusive jurisdiction of other bodies.
2. A petition is understood as a written or oral demand, proposal or other submission by an individual or a legal entity, which is aimed at a prosecutor taking a measure within [the prosecutor’s] jurisdiction, in particular lodging an application for proceedings to commence before a court, or submitting a remedy, joining existing proceedings, or taking other measures for rectification of a violation of the law, which fall within [the prosecutor’s] jurisdiction.”
133. The relevant part of section 33 provides that:
“1. A prosecutor is duty bound to process a petition within two months of its introduction...
2. A prosecutor shall notify a petitioner within the period specified in subsection 1 of the manner in which the petition has been resolved. [...]”
134. Section 34 deals with repeated petitions and further repeated petitions. Its relevant part reads as follows:
“1. A petitioner may demand a review of the lawfulness of how the petition has been resolved by means of a repeated petition, which shall be dealt with by a prosecutor at a higher level.
2. A further repeated petition shall be dealt with by a prosecutor at a higher level only if it contains new information. A further repeated petition is understood to be a third and any further consecutive petition, in which the petitioner expresses discontent with the manner in which [his or her] petitions in the same matter have been resolved.”
135. Under the relevant part of section 35:
“1. In dealing with a petition, a prosecutor is duty bound to examine all circumstances decisive for the assessment of whether there has been a violation of the law; whether the conditions are fulfilled for lodging an application for proceedings before a court to commence or for submitting a remedy; or whether [the prosecutor] may join existing proceedings before a court or take other measures which [the prosecutor] is entitled to take under [the Public Prosecution Service Act].”
2. The prosecutor assesses the petition according to its content...
3. If the prosecutor establishes that a petition is well founded, [he or she] shall take measures for rectification of the violation of law pursuant to [the Public Prosecution Service Act] or a special statute.”
136. In a decision of 13 December 2001 (in case no. III. ÚS 123/01) the Constitutional Court declared inadmissible a submission, in which an individual had complained that criminal proceedings against him had been too lengthy and that they, as well as a warrant for his arrest, had been unjustified.
In rejecting the claim, the Constitutional Court held that, in respect of the criminal proceedings as such, it was for the applicant first to seek redress from the investigator or the supervising prosecutor by the means available under the CCP and, as the case might be, also from a higher level of the PPS by means available under the PPS Act. As to the arrest warrant, it was for the applicant to assert his rights before the ordinary courts.
137. In a decision of 20 November 2002 (in case no. I. ÚS 143/02) the Constitutional Court declared inadmissible a complaint under Article 127 of the Constitution, in which an individual had contested the way the PPS had handled his complaint concerning interference with his correspondence by prison authorities.
In rejecting the complaint, the Constitutional Court held that, by virtue of the rule of exhaustion of remedies, it was for the complainant, prior to claiming protection from the Constitutional Court, first to seek it from a higher level of the PPS by means of a repeated petition under section 34(1) of the Public Prosecution Service Act.
138. In a decision of 2 July 2003 (in case no. III. ÚS 155/03) the Constitutional Court declared inadmissible a complaint under Article 127 of the Constitution in which an individual had contested a decision of the PPS quashing a previous decision of an investigator to restore to the applicant cash and objects retained in the context of criminal proceedings against him.
In rejecting the complaint, the Constitutional Court held that, by virtue of the rule of exhaustion of remedies, it was for the complainant, prior to claiming protection from the Constitutional Court, first to seek it from a higher level of the PPS by means of a petition under section 31 of the PPS Act, irrespective of the fact that the decision was not subject to appeal under the CCP.
139. In a decision of 28 April 2004 (in case no. III. ÚS 127/04) the Constitutional Court declared inadmissible a complaint under Article 127 of the Constitution, in which an individual had contested a decision by the PPS to reject an interlocutory appeal by the complainant against a decision of a lower level of the PPS to discontinue proceedings in the complainant’s criminal complaint concerning an alleged violation of the privacy of a home. In that case, the interlocutory appeal had been rejected because, being in the procedural position of a victim, the complainant had no standing to appeal.
In rejecting the complaint, the Constitutional Court held that, by virtue of the rule of exhaustion of remedies, it was for the complainant, prior to claiming protection from the Constitutional Court, first to seek a review of the decision at the highest level of the PPS, that is to say the Prosecutor General, under sections 31 to 36 of the PPS Act.
At the same time, the Constitutional Court observed that no grounds had been established for exempting the complainant from the obligation to use that remedy.
140. The principles stemming from the Constitutional Court’s decisions mentioned above were applied mutatis mutandis in the Constitutional Court’s subsequent decisions of 26 May 2004 (in case no. IV. ÚS 179/04) and 24 May 2007 (in case no. IV. ÚS 126/07).
141. Meanwhile, on 7 July 2006 (in case no. II. ÚS 223/06), the Constitutional Court declared inadmissible a complaint under Article 127 of the Constitution of 14 June 2006, in which a group of individuals had contested the outcome of the proceedings concerning their criminal complaint of an alleged abuse of official authority in connection with the termination of their service in the police.
The Constitutional Court observed that the complainants’ criminal complaint had been rejected on 21 July 2005 and that their interlocutory appeal to the PPS had been dismissed on 29 September 2005.
The Constitutional Court found that, as the constitutional complaint had been lodged on 14 July 2006, it had clearly been lodged outside the statutory two-month time-limit for lodging such a complaint.
The Constitutional Court held that the position had not been altered by the subsequent decisions at a higher level of the PPS to dismiss the complainants’ petition and repeated petition for reexamination of the lawfulness of the decision of 29 September 2005.
In reaching that conclusion, the Constitutional Court observed that the complainants’ petition and repeated petition had been aimed at having a complaint in the interest of law (sťažnosť pre porušenie zákona) lodged by the Prosecutor General on their behalf, which was however an extraordinary remedy, and a negative decision: accordingly it did not restart the running of the two-month time-limit.
142. The offence of violence against a group of citizens and against an individual is defined in Article 196, the relevant part of which reads as follows:
“1. He who threatens a group of citizens with killing, causing bodily harm or causing damage on a large scale (škoda veľkého rozsahu) shall be punished by imprisonment for up to one year.
2. He who perpetrates violence against a group of citizens or an individual or threatens them with death, causing bodily harm or causing damage on a large scale on account of political belief, nationality, race, affiliation to an ethnic group, religion or because they are without religion, shall be punished by imprisonment for up to two years.”
143. The offence of causing bodily harm is defined in Article 221, the relevant part of which provides that:
“1. He who intentionally causes bodily harm to another’s health shall be punished by imprisonment for up to two years or by a financial penalty.”
144. Article 238 defines the offence of violating the privacy of a home, its relevant part reading as follows:
“1. He who enters a house or a flat of another without authority to do so or remains there unauthorised shall be punished by imprisonment for up to two years or by a financial penalty...
3. The perpetrator who, in committing the act referred to in section 1, applies violence or a threat of immediate violence and commits such an act with a weapon or with at least two others shall be punished by imprisonment for between one year and five years.
145. The offence of criminal damage is defined in Article 257, the relevant part of which provides that:
“1. He who destroys, damages or makes unusable something belonging to someone else and thereby causes a non-negligible damage (škoda nie nepatrná) to someone else’s property shall be punished by imprisonment for up to one year or interdiction of an activity or a financial penalty or forfeiture of an item of property.”
146. The communication was considered by the Committee in an Opinion adopted at its meeting on 8 August 2000.
147. The case concerned difficulties that the petitioner and several other families, being of Roma ethnic origin, had been experiencing with settling down and establishing a home and, in particular, two municipal resolutions forbidding the families in question from settling in the villages concerned and threatening them with expulsion.
The petitioner unsuccessfully complained about the municipal resolutions before the Constitutional Court and a criminal investigation into the matter was suspended, by a decision of the PPS.
148. In defending the case, the State party concerned argued, inter alia, that the petitioner had the opportunity to contest the decision to suspend the investigation under the PPS Act of 1996 (see paragraph 131 above) and to assert her rights by way of an action for protection of her personal integrity under Articles 11 et seq. of the Civil Code (see paragraphs 4.4 and 4.6 of the Opinion).
149. The Committee, however, “did not share the State party’s view that domestic remedies had not been exhausted and considered that neither a new petition to the Constitutional Court nor a civil action would be
150. The communication was considered by the Committee in an Opinion adopted at its meeting on 9 August 2001.
151. The case concerned a Slovak national, who had been refused service in a restaurant and was told to leave on account of his Roma ethnic origin, and an alleged failure by the State party to sanction or remedy this treatment. Following investigation upon the petitioner’s criminal complaint in that respect, the police found that there was no evidence that any criminal offence had been committed. Upon the petitioner’s appeal to the PPS, the decision was upheld.
152. In defending the case, the State party concerned argued, inter alia, that the petitioner had the opportunity to seek a review of the lawfulness of the position taken by the public prosecution service at a higher level in that body under the PPS Act of 1996 (see paragraph 131 above) and of asserting his rights by way of an action for protection of his personal integrity under Articles 11 et seq. of the Civil Code (see paragraphs 4.1 and 4.2 of the Opinion).
153. In response, the Committee observed that Article 14 § 7 (a) of the International Convention on the Elimination of All Forms of Racial Discrimination provides that the Committee is not to consider any communication unless it has ascertained that all available domestic remedies have been exhausted and that it has held in its previous jurisprudence that a petitioner is only required to exhaust remedies that are effective in the circumstances of the particular case (see paragraph 6.2 of the Opinion).
154. Furthermore, the Committee noted that “the decision of the [PPS] was a final decision as far as the criminal procedure was concerned. The State party [had] failed to demonstrate that a petition for review, which would be a remedy against the legality of the decision, could in the present case [have] [led] to a new examination of the complaint”. Furthermore, the Committee found that “the facts of the claim were of such a nature that only criminal remedies could constitute an adequate avenue of redress. The objectives pursued through a criminal investigation could not be achieved by means of civil or administrative remedies of the kind proposed by the State party”. Therefore, the Committee found that “no other effective remedies were available to the petitioner” (see paragraph 6.3 of the Opinion).
155. The communication was considered by the Committee at its meeting on 2 May 1995. Among the views it adopted, in the relevant part of their paragraph 6.1, dealing with the requirement of exhaustion of domestic remedies, the Committee:
“considered that, even if these attempts to engage available domestic remedies may not have complied with procedural formalities prescribed by law, they left no doubt as to [the alleged victim’s] wish to have the allegations investigated. The Committee concluded that, in the circumstances, it was not barred from considering the communication.”
VIOLATED_ARTICLES: 3


ITEMID: 001-23141
LANGUAGEISOCODE: ENG
RESPONDENT: AZE
BRANCH: ADMISSIBILITY
DATE: 2003
DOCNAME: KAZIMOVA v. AZERBAIJAN
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Georg Ress
TEXT: The applicant, Gulnare Kazimova, is an Azerbaijani national, who was born in 1956 and currently lives in Baku. She is represented before the Court by Mr Bagirov, a lawyer practising in Baku. At the time she lodged the application, she was serving her term of imprisonment.
The facts of the case, as submitted by the applicant, may be summarised as follows.
On 3 May 2001 she was arrested by the police on suspicion of fraud. At the police station, she was searched and interrogated. She was allegedly forced to make false accusations against herself, as dictated by the police officers. Furthermore, she was asked to sign a document regarding her arrest. She refused to sign the document as, being a Russian speaker, she was unable to read and understand the text of the document properly. One of the police officers signed the document on her behalf.
On 11 May 2001 the local court issued an order for her detention on remand. Throughout the period of detention, the applicant was not provided with a lawyer of her choice and received communications solely in Azeri, a language of which she allegedly understands only 10%. She was also refused the assistance of an interpreter.
On 17 September 2001 the Assize Court sentenced the applicant to three years’ imprisonment. She was convicted of fraud under Articles 178.1 and 178.2 of the Criminal Code.
The applicant appealed against this decision to the Appeal Court. She claimed that the Assize Court’s decision failed to reflect the factual elements of the case; nor did it take into account the mitigating circumstances. Claiming that the decision was unfair, she asked the Appeal Court to reconsider the judgment.
On 15 November 2001 the Appeal Court upheld the Assize Court’s decision as regards the finding of a guilt, but reduced the applicant’s term of imprisonment to one year. The applicant did not agree with this outcome and lodged a cassation appeal before the Supreme Court. Claiming total innocence, she asked for acquittal.
On 30 April 2002 the Supreme Court dismissed the applicant’s request and upheld the Appeal Court’s decision. It held that the Appeal Court’s conclusions were in accordance with the law and that the decision was fair and justified. The Supreme Court found no legal grounds for changing the Appeal Court’s decision.
The applicant lodged an additional appeal asking reconsideration of her case by the Supreme Court’s Plenary. She insisted that she had not committed any crime and that she should be acquitted.
On 26 September 2002 the Chairman of the Supreme Court rejected the applicant’s request and refused to bring the case to the Plenary’s consideration. The Chairman stated that all decisions of the appeal and cassation courts were based on and taken in accordance with the law. There was no legal ground either to quash or confirm and, furthermore, no point in bringing the case before the Plenary.


ITEMID: 001-95575
LANGUAGEISOCODE: ENG
RESPONDENT: FIN
BRANCH: CHAMBER
DATE: 2009
DOCNAME: CASE OF LAPPALAINEN v. FINLAND
IMPORTANCE: 4
CONCLUSION: Violation of Article 6 - Right to a fair trial
JUDGES: David Thór Björgvinsson;Ján Šikuta;Lech Garlicki;Mihai Poalelungi;Nicolas Bratza;Päivi Hirvelä
TEXT: 4. The applicant was born in 1973 and lives in Outokumpu.
5. On 16 November 1999 the applicant instituted proceedings against K., a journalist, and Yhtyneet Kuvalehdet Oy, a publishing company, claiming non-pecuniary damages for suffering and distress due to an article published in 1998.
6. On 27 January 2000 the District Court (käräjäoikeus, tingsrätten) held an oral hearing. On 4 February 2000 it rejected the action, holding that publishing the name of a convicted person did not amount to an offence and that, therefore, no right to compensation existed under Chapter 5, section 6, of the Tort Liability Act (vahingonkorvauslaki, skadeståndslagen; Act no. 412/1974).
7. The applicant appealed. On 22 March 2001 he changed counsel.
8. On 12 December 2002 the Helsinki Court of Appeal (hovioikeus, hovrätten) held an oral hearing. On 31 March 2003 the court partly upheld the applicant's claim and ordered the journalist and the publishing company jointly to pay the applicant EUR 2,000 for suffering and distress. The court found that there had been no justification for publishing the name of a private person such as the applicant.
9. All the parties requested leave to appeal, which was granted on 3 September 2003.
10. In its judgment of 19 December 2005 (precedent no. KKO 2005:136) the Supreme Court (korkein oikeus, högsta domstolen) overturned the appellate court's judgment and rejected the action.
VIOLATED_ARTICLES: 6


ITEMID: 001-60173
LANGUAGEISOCODE: ENG
RESPONDENT: AUT
BRANCH: CHAMBER
DATE: 2002
DOCNAME: CASE OF KRONE VERLAG GmbH & Co. KG v. AUSTRIA
IMPORTANCE: 2
CONCLUSION: Violation of Art. 10;Pecuniary damage - financial award;Costs and expenses award - domestic proceedings;Costs and expenses award - Convention proceedings;Non-pecuniary damage - finding of violation sufficient
JUDGES: Nicolas Bratza
TEXT: 9. The applicant company is the publisher of a newspaper (Kronenzeitung) with its registered office in Vienna.
10. On 3, 4, 7, 8 and 15 March, as well as on 3 and 16 May and 29 June 1995, the applicant company published, in its Carinthian regional edition (Lokalausgabe), articles on the financial situation of a certain Mr Posch who, at that time, was employed as a teacher and, at the same time, was a member of the Austrian National Assembly (Nationalrat) and the European Parliament. The articles commented on these professional tasks and, in harsh terms, alleged that he received three salaries unlawfully as, according to Austrian law, he was not entitled to a teacher’s salary during his membership of the European Parliament. He was, inter alia, referred to as someone unjustly enriching himself. These articles were accompanied by photographs of Mr Posch.
11. On 18 August 1995 Mr Posch applied for an injunction under Section 78 of the Copyright Act (Urheberrechtsgesetz) to the Klagenfurt Regional Court against the applicant company. He requested that the applicant company be ordered to refrain from publishing his picture in connection with statements describing him as somebody who received his salaries unlawfully and who benefited from unlawful privileges. Furthermore, he requested an order for the publication of the judgment in the applicant company’s newspaper, indicating the grant of damages and the injunction (einstweilige Verfügung).
12. On 21 September 1995 the applicant company filed a statement of defence (Klagebeantwortung) in which it argued, inter alia, that the publication of the impugned articles had been justified under Article 10 of the Convention.
13. On 10 October 1995 the Klagenfurt Regional Court granted an interim injunction. It found the measure justified because the plaintiff’s interest in prohibiting the publication of his photograph outweighed the applicant company’s interest in the publication of the illustrated articles, in particular as the publication of the pictures per se had no special information value (Nachrichtenwert).
14. On 4 January 1996 the Klagenfurt Regional Court granted the permanent injunction prohibiting the applicant company from publishing the plaintiff’s picture in connection with the above mentioned or similar articles. It dismissed the remainder of the action. The court found that Section 78 of the Copyright Act prohibited publishing a person’s picture if the publication violated that person’s legitimate interests. When considering such interests, account had to be taken of whether the person concerned was known to the public, because the publication of the photographs of unknown persons made it possible to identify them later. The court found that Mr Posch’s face was not generally known, despite his membership of the National Assembly. Therefore, his legitimate interests had been infringed by creating the possibility of identifying him. The applicant company was of course entitled to report on the plaintiff’s activities and financial situation, but there was no legitimate interest in publishing his picture as it had, per se, no information value. Furthermore, it was irrelevant for this specific question whether the content of the articles was true or false.
15. On 8 February 1996 the applicant company appealed. It argued that the court had erred when it found that the plaintiff’s interests outweighed the applicant company’s interests, as the public in Carinthia, who had elected Mr Posch, were interested in his sources of revenue. Therefore the court should have also taken evidence – as had been offered by the applicant company – in order to prove the truth of the articles. Furthermore, the plaintiff was known to the public as he was Carinthian and had participated in several events during the election campaign there. Thus it was incorrect that Mr Posch’s face was unknown.
16. On 9 July 1996 the Graz Court of Appeal dismissed the appeal. It found that the publication of the pictures together with the articles had been unnecessary. In any case, the information value of the pictures could not outweigh Mr Posch’s interests. It also confirmed the legal opinion of the Regional Court that, for the purposes of Section 78 of the Copyright Act, it was irrelevant whether or not the publication contained true information.
17. On 15 October 1996 the Supreme Court declared inadmissible the applicant company’s extraordinary appeal on points of law (außerordentlicher Revisionsrekurs). It confirmed the findings of the Court of Appeal, observed that the publication of the plaintiff’s pictures had no additional information value, and therefore concluded that it had been unnecessary. On 4 November 1996 this decision was served upon counsel for the applicant company.
18. Section 78 of the Copyright Act, in so far as relevant, reads as follows:
“(1) Images of persons shall neither be exhibited publicly, nor in any way made accessible to the public, where injury would be caused to the legitimate interests of the persons concerned or, in the event that they have died without having authorised or ordered publication, those of a close relative.”
VIOLATED_ARTICLES: 10


ITEMID: 001-106785
LANGUAGEISOCODE: ENG
RESPONDENT: MLT
BRANCH: CHAMBER
DATE: 2011
DOCNAME: CASE OF GENOVESE v. MALTA
IMPORTANCE: 3
CONCLUSION: Violation of Art. 14+8
JUDGES: Geoffrey Valenzia;George Nicolaou;Lech Garlicki;Ledi Bianku;Nicolas Bratza;Päivi Hirvelä
TEXT: 7. The applicant was born in 1996 and lives in Hamilton.
8. The applicant was born in Scotland and his birth was registered there. He was born out of wedlock and is the son of a British mother and a Maltese father. The latter’s paternity has been determined both judicially and scientifically (see below). Mr G., the applicant’s father, of Maltese citizenship, has refused to acknowledge his son or to maintain a relationship with him.
9. On an unspecified date the applicant’s mother made a request for her son to be granted Maltese citizenship.
10. On 4 September 1996, the Malta High Commission informed the applicant’s mother that since she was not a Maltese citizen and the father of the applicant had not yet been declared to be a Maltese citizen on the applicant’s birth certificate, the applicant was not entitled to Maltese citizenship. She was informed that citizenship would be granted only if the Maltese father recognised his son on the applicant’s birth certificate.
11. Subsequently, the applicant’s mother instituted proceedings in Scotland for the Maltese man with whom she had had a relationship to be declared the applicant’s father on the applicant’s birth certificate. By a decree of an unspecified date the Scottish courts declared Mr G., a Maltese citizen, to be the applicant’s biological father. Consequently, the applicant’s birth certificate was amended to reflect the established paternity.
12. According to the Government, in the meantime the applicant’s mother was informed that even if Mr G. was judicially declared to be the applicant’s father the applicant would still not be eligible for citizenship in view of section 5(2)(b) and 17(1)(a) of the Maltese Citizenship Act, which stated that children born out of wedlock were only eligible for Maltese citizenship if their mother was Maltese.
13. Subsequently, the applicant’s mother again submitted an application under section 5(2)(b) of the Maltese Citizenship Act (see Relevant Domestic Law below) for her son to be granted Maltese citizenship.
14. On an unspecified date her application was rejected on the basis that Maltese citizenship could not be granted to an illegitimate child in cases where the illegitimate offspring was born to a non-Maltese mother and a Maltese father, in accordance with section 17(1)(a) of the Maltese Citizenship Act (see Relevant Domestic Law). Since the applicant was not born to a married couple, as a result of the application of Article 17(1)(a) any reference to the “father” in section 5(2)(b) had to be deemed to be a reference to the mother.
15. By a judgment of 27 February 2003 the Civil Court (First Hall) in Malta also declared Mr G. to be the applicant’s biological father and he was ordered to pay maintenance.
16. Pending the above judgment, in 2002, the applicant’s mother in her own name and on behalf of the applicant, as his curator ad litem, instituted constitutional redress proceedings, complaining that the said provision was discriminatory and contrary to both the Maltese Constitution and the Convention.
17. On 25 January 2006 the Civil Court, in its constitutional jurisdiction, found that the said provisions were in violation of the Maltese Constitution, because they discriminated against the applicant by depriving him of Maltese citizenship. It further abstained from taking a decision on the compatibility of the provisions with the Convention.
18. On 18 July 2006, on appeal, the Constitutional Court reversed the first-instance judgment in respect of the compatibility of the provisions with the Constitution. However, it sent the case back to the Civil Court for a determination on the compatibility of those provisions with the Convention.
19. On 4 November 2008 the Civil Court in its constitutional jurisdiction held that section 17(1)(a) of the Maltese Citizenship Act was null vis-á-vis
20. On 27 March 2009, on appeal, the Constitutional Court reversed the first-instance judgment. Noting the amendments in 2007 (see Relevant Domestic Law), it considered that its judgment had to be limited to the parameters of the application before it. It held that the right to citizenship was not a substantive Convention right. The grant or denial of citizenship would not facilitate or create obstacles to the applicant’s family life since his father categorically refused to have any contact with him. Moreover, since the Convention did not oblige a State to allow a non-national spouse to reside in its territory, it could not be said that the State was obliged to grant citizenship to a non-national.
21. The Maltese Citizenship Act, Chapter 188 of the Laws of Malta, in so far as relevant, reads as follows:
Section 5
“(2) A person born outside Malta on or after the appointed day (21 September 1964) shall be deemed to have become or shall become a citizen of Malta at the date of his or her birth:
(b) in the case of a person born on or after 1 August 1989, if at the date of such person’s birth, his or her father or mother is a citizen of Malta ...”
Section 17
“(1) In this Act - (a) any reference to the father of a person shall, in relation to a person born out of wedlock and not legitimated, be construed as a reference to the mother of that person; ...”
By means of Act X of 2007 the following subsections were added to section 5 of the Maltese Citizenship Act:
“(3) A person born outside Malta on or after the appointed day who proves he is a descendant in the direct line of an ascendant born in Malta of a parent likewise born in Malta shall be entitled, upon making an application as may be prescribed and upon taking the oath of allegiance, to be registered as a citizen of Malta:
Provided that when the said person is a minor, any such person who according to law has authority over that minor, may submit an application for the registration of the said minor as a citizen of Malta.
(4) Any ascendant as provided in subarticle (3) who dies before the 1st August 2007 and who would, but for his death, have been entitled to acquire Maltese citizenship under this article, shall be deemed to have acquired such citizenship for the purposes of subarticle (3).
(5) Where any of the parents of a person applying to be registered as a citizen of Malta by virtue of subarticle (3) was alive on 1st August 2007 (for the purposes of this article referred to as "the relevant parent") and the relevant parent is also a descendant in the direct line of an ascendant born in Malta of a parent likewise born in Malta, such person shall not be entitled to be registered as a citizen of Malta by virtue of subarticle (3) unless the relevant parent had at any time acquired Maltese citizenship under this article or under article 3; so however that any such relevant parent who dies before 1st August 2010 and who would have been entitled to acquire such citizenship under subarticle (3) or under subarticle (3) of article 3 shall be deemed to have acquired such citizenship for the purposes of that subarticle.
(6) Where any of the parents of a person applying to be registered as a citizen of Malta by virtue of subarticle (3) was born on or after 1st August 2007 (for the purposes of this article referred to as "the relevant parent") and the relevant parent is also a descendant in the direct line of an ascendant born in Malta of a parent likewise born in Malta, such person shall not be entitled to be registered as a citizen of Malta by virtue of subarticle (3) unless the relevant parent had at any time acquired Maltese citizenship under this article.
(7) The person applying to be registered as a citizen of Malta under subarticle (3) shall be entitled to be registered as a citizen of Malta if the relevant parent dies after the 31st July, 2010 and the relevant parent had applied for and would have been entitled to be granted Maltese citizenship under this article or under article 3.”
VIOLATED_ARTICLES: 14
8


ITEMID: 001-101040
LANGUAGEISOCODE: ENG
RESPONDENT: AZE
BRANCH: CHAMBER
DATE: 2010
DOCNAME: CASE OF SAFAROVA v. AZERBAIJAN
IMPORTANCE: 4
CONCLUSION: Violation of Art. 6-1;Violation of P1-1
JUDGES: Christos Rozakis;Dean Spielmann;George Nicolaou;Giorgio Malinverni;Khanlar Hajiyev;Sverre Erik Jebens
TEXT: 5. The applicant was born in 1960 and lives in Baku.
6. The applicant was the owner of non-residential premises with an area of 350 square metres situated in Baku (“the Premises”). The ownership certificate relative to the Premises was delivered to the applicant on 17 July 1998 and her ownership right was duly registered in official records.
7. Since 1993 the Premises had been occupied by Police Station no. 17 of the Narimanov District Police Department (“the Police Station”).
8. The applicant wrote numerous letters to the Ministry of Internal Affairs, the Ministry of Economic Development, the Baku City Executive Authority, the Ombudsman's Office, and other public authorities, complaining of unlawful occupation of the Premises by the Police Station. In 2002 and 2003, the applicant was informed by letters from the Ministry of Internal Affairs and the Baku City Executive Authority that the Police Station would vacate the Premises as soon as it was provided with other premises by the Ministry of Economic Development.
9. On 13 May 2003 the applicant lodged a lawsuit with the Narimanov District Court claiming that she was the lawful owner of the Premises and asking the court to order the eviction of the Police Station.
10. On 3 July 2003 the Narimanov District Court granted the applicant's request. The court held that the applicant was the lawful owner of the Premises on the basis of the ownership certificate of 17 July 1998 and that there was no legal basis for the installation of the Police Station there. Moreover, the court stated that the Ministry of Economic Development should provide the Police Station with other premises.
11. No appeals were filed against that judgment and, pursuant to domestic law, it became enforceable within one month after its delivery.
12. According to the case file, between 2003 and 2006 the Ministry of Economic Development offered the Police Station different premises. However the Head of the Police Station refused to move to those premises stating that they were not suitable for a police station.
13. On 10 November 2008 the Narimanov District Executive Authority allocated a plot of land for the construction of a building for the Police Station.
14. In 2009 the Ministry of Internal Affairs commenced an action against the applicant challenging the lawfulness of the applicant's ownership rights in respect of the Premises. On 8 April 2009 the Narimanov District Court rejected the Ministry's claim. The court found that the Ministry of Internal Affairs had no right to lodge a claim concerning the Premises, that the time-limits provided for challenging the applicant's ownership right in respect of the Premises had expired, and that the matter was res judicata as the applicant's ownership had been confirmed by the judgment of 3 July 2003.
15. On 15 April 2009 a criminal case was launched by the Ministry of Internal Affairs concerning the allegedly unlawful acquisition of the Premises by the applicant and her husband. On 17 April 2009 the Sabayil District Court authorised a search and seizure at the office of a company managed by the applicant's husband. The case file does not contain any other material concerning subsequent developments and the results of this investigation and of the criminal case.
16. Moreover, it appears from the case file that in April 2009 the State Committee for the Management of State Property lodged a civil action against the applicant alleging that her ownership had been unlawful. The case file does not contain any material on the results of this legal action.
17. As at the time of the Court's last communication with the applicant, the judgment of 3 July 2003 remained unenforced.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-85125
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: ADMISSIBILITY
DATE: 2008
DOCNAME: AKIN AND OTHERS v. TURKEY
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Antonella Mularoni;Françoise Tulkens;Ireneu Cabral Barreto;Mindia Ugrekhelidze;Vladimiro Zagrebelsky
TEXT: 1. The applicants, Ms Elif Akın, Ms Özlem Ünal, Ms Yeşim Tayfur, Ms Emel Koşkun, Ms Halime Akın, Mr Mehmet Ünsal Akın, Ms Gönül Akın and Mr Vural Akın, are Turkish nationals who were born in 1973, 1972, 1971, 1949, 1925, 1978, 1946 and 1951 respectively, and live in Turkey. They are represented before the Court by Mr B. Orta, a lawyer practising in Tekirdağ.
2. The facts of the case, as submitted by the parties, may be summarised as follows.
3. On 23 August 2000 the General Directorate of Roads and Highways expropriated four plots of land belonging to the applicants in the Seymen village of Çorlu, for a highway construction. The Directorate assessed the value of the land and paid the applicants 5,000,000 Turkish Liras (TRL) per square metre.
4. On 1 September 2000, i.e., within the 30-day prescription period, the applicants brought an action before the Çorlu Civil Court for increased compensation, requesting 12,000,000 TRL per square metre.
5. The court appointed a committee of experts, who conducted an on-site property inspection on 3 November 2000. They found that the land had been significantly undervalued and assessed it at 34,000,000 TRL per square metre.
6. Given the considerable discrepancy between this evaluation and that of the administration, the court appointed another committee of experts. This new committee conducted an examination on 15 December 2000 and valued the land at 22,000,000 TRL per square metre.
7. On 8 January 2001 the applicants filed a petition with the same court for “amendment” (ıslah) of their claim. They argued that they had been unaware of the real value of their property revealed by the expert reports. On that basis, they requested that their original claim be increased to 22,000,000 TRL per square metre, relying on the lower of the two expert assessments.
8. On 16 February 2001 the court denied the request. It held that the petition had been filed outside of the 30-day period stipulated for expropriation-related compensation cases.
9. Ruling on the merits, the court first examined the expert reports. It found that they were consistent with the evidence in the case file as well as the records of the mayor’s office. It further found that they had duly taken into account the factors affecting the value of the expropriated property.
10. Nonetheless, the court disregarded the experts’ valuations. It reasoned that both assessments exceeded the applicants’ claim, and thus, it sufficed to award the amount of compensation originally claimed. It also explained that it was unnecessary to require a third expert valuation with a view to reconciling the earlier two.
11. The applicants appealed. They relied on a Constitutional Court decision dated 20 July 1999. The decision had reviewed the constitutionality of the last sentence of Article 87 of the Code of Civil Procedure, which read as follows:
“Article 87: The plaintiff cannot increase his claim through amendment (ıslah).”
12. Declaring that sentence unconstitutional and a nullity, the Constitutional Court had reasoned:
“The [local] court requesting the review maintained that the impugned rule was contrary to Article 141 of the Constitution as it forces plaintiffs to initiate a new case and unduly burdens the judiciary.
...
By not allowing a claim to be increased through amendment, the impugned rule prevents cases from being resolved as promptly and cost-effectively as possible, and thereby violates Article 141 of the Constitution.
...
The rule that prevents plaintiffs from increasing their original claims through ‘amendment’ is contrary to the principle of the rule of law as it makes it unduly difficult to claim a right.
...
The impugned rule forces a plaintiff to reinitiate the case from the very beginning and as such, it restricts the freedom to seek a legal remedy.
...
As the rule prevents plaintiffs from receiving redress as promptly and costeffectively as possible, it significantly impedes the freedom to seek a legal remedy, which is irreconcilable with the requirements of a democratic society...”
13. On 20 September 2001 the Court of Cassation upheld the civil court’s judgment. It relied on a different reasoning. Instead of discussing whether or not the petition for “amendment” had been filed on time, it held that:
“By requesting 12,000,000 TRL per square metre, the plaintiffs have bound themselves. They are not allowed to increase that amount even through amendment.
The fact that the last sentence of Article 87 of the Code of Civil Procedure had been nullified by the Constitutional Court has no applicability in this particular context.”
14. On 22 October 2001 the decision was notified to the applicants.
15. Article 141 of the Turkish Constitution:
“Article 141: ... It is the duty of the judiciary to conclude trials as quickly as possible and at minimum expense.”
16. The relevant provisions of the Code of Civil Procedure:
“Article 83: Either of the parties may partly or entirely rectify a procedural act. Each party may use the right of rectification only once within a case.”
“Article 84: For cases subject to investigation, rectification may be made until the end of the investigation, for all other cases, it may be made until the end of the trial.”
17. Article 14 of the Expropriation Act:
“Right of action
Article 14: The owner ... of an expropriated property may, within thirty days from the notification [of an expropriation], file an action to ... challenge the amount of compensation assessed [by the authorities].”
18. In a case concerning the plaintiff’s inability to increase his claim through amendment (ıslah) (file no. 2004/28705, decision no. 2005/9379), the 5th Chamber of the Court of Cassation ruled, in its judgment dated 2 April 2002, that the plaintiff was bound by his original claim. In its opinion, the fact that the Constitutional Court annulled Article 87 of the Code on Civil Procedure did not give the plaintiff a new right as long as he did not bring a partial action (kısmi dava). Under Turkish law, a “partial action” was brought when the plaintiff made a partial claim and stated in his petition that he reserved his further rights, i.e. the right to increase his claim.
19. In a case concerning the plaintiff’s request for pecuniary and nonpecuniary compensation for having suffered bodily harm (file no. 2004/4200, decision no. 2004/227), the Grand Chamber of the Court of Cassation held, in its judgment 14 April 2004, that if the plaintiff did not reserve his further rights and bring a “partial action” he could not increase his claim by way of amendment (ıslah). It further stated that any plaintiff who did not reserve his further rights when bringing an action must be considered to have forfeited them and that this forfeiture could not be altered through amendment.
20. In a case concerning the plaintiff’s request to increase his claim through amendment (file no. 2004/28705, decision no. 2005/9379), the 9th Chamber of the Court of Cassation ruled in its judgment of 22 March 2005 that an amendment would only be possible should the plaintiff make such a request within the statutory time-limit. In this case, having found that the plaintiff’s request for increased compensation was time-barred, the court concluded that the amendment request must be dismissed.