ITEMID: 001-57736
LANGUAGEISOCODE: ENG
RESPONDENT: DEU
BRANCH: CHAMBER
DATE: 1992
DOCNAME: CASE OF CROISSANT v. GERMANY
IMPORTANCE: 3
CONCLUSION: No violation of Art. 6-1;No violation of Art. 6-3-c
TEXT: 6. Mr Klaus Croissant, a German national, is a lawyer who practises in Berlin. At the material time, he was facing criminal proceedings in the Stuttgart Regional Court (Landgericht) in connection with his activities as the lawyer of various members of the "Red Army Faction" (RAF).
7. Initially he was represented by two lawyers of his choice: Mr Baier, practising in Mannheim, and Mr Kempf, having his office in Frankfurt. Subsequently, on 2 August 1976, they were designated, at his request, to represent him as court-appointed defence counsel. The applicant had, moreover, chosen three further lawyers to assist in his defence, two of whom were French, but they did not participate in the criminal proceedings in question here.
8. On 11 January 1978, on an application by the prosecuting authority, the President of the Regional Court designated as third court-appointed defence counsel, Mr Hauser, a lawyer practising in Stuttgart.
9. Mr Croissant raised objections both to the appointment of a third defence counsel itself and to the choice of the person concerned. He objected in particular that Mr Hauser was a member of the Social Democratic Party (SPD), while he was fundamentally opposed to that party. He requested either that the decision appointing Mr Hauser be annulled or that the latter be replaced by Mr Künzel, who also had his office in Stuttgart.
Mr Hauser for his part asked to be relieved of his duties in the case.
The Regional Court dismissed both applications on 1 March 1978.
On the first point it considered that it had been necessary to appoint a third defence counsel to ensure that the trial would take its course according to the principles laid down in the Code of Criminal Procedure and, in any event, that the accused was adequately represented throughout the trial, having regard to its possible length and to the size and complexity of the case.
As to the other objection, it agreed that when selecting a lawyer to be appointed as defence counsel the court should, as a rule, endeavour to choose a lawyer in whom the defendant places confidence. This rule was formulated for cases where the defendant has no defence counsel and the court must appoint one. However, at Mr Croissant’s request, the court had appointed two defence counsel who enjoyed his full confidence. Nevertheless, when selecting the third court-appointed defence counsel, the court had not only taken into consideration which lawyer would offer the best guarantees for a proper and effective defence, having regard to the subject-matter of the trial, the factual and legal complexity of the case and the personality of the defendant. It had also tried to choose one in whom the defendant would probably be able to place confidence.
Taking into account all the circumstances which were relevant for assessing whether Mr Hauser was a suitable person to defend Mr Croissant, the court held that the fact that Mr Hauser was a member of the SPD did not justify revoking his appointment: in so far as the defendant might wish the defence to make a sharp attack on the politics of this party, the other court-appointed counsel offered all the guarantees. Mr Hauser too had expressed the opinion that he was in a position to appear for the defendant in spite of their political differences.
Finally, Mr Künzel was defending one of Mr Croissant’s former employees in other proceedings and the possibility of a conflict of interests could not be ruled out.
10. On 6 March 1978 the Stuttgart Court of Appeal (Oberlandesgericht) upheld this decision. It recalled that, according to the case-law of the Federal Constitutional Court (Bundesverfassungsgericht), an appointment to act as defence counsel could and should only be revoked when its purpose - that is, to ensure that the accused will be adequately defended and the proceedings properly conducted - is seriously endangered. On similar grounds as the first-instance court, it held that Mr Croissant had not established that this requirement was met in respect of Mr Hauser’s appointment.
As to the appointment of a third defence counsel, the court found nothing to criticise. To appoint a further defence counsel having his office within the Regional Court’s jurisdiction had been objectively justified by reason of the length of the proceedings, which could not be predicted accurately, and the size and complexity of the case.
As to Mr Hauser’s request to be discharged from the case, the court found that unjustified too. Neither Mr Croissant nor Mr Hauser maintained, nor was there anything to show, that the relations between them were so strained or they had quarrelled in such a way as to make a proper defence impossible.
11. Subsequently, Mr Croissant tried to secure the additional assistance of Mr Künzel, by choosing him as defence counsel, but to no avail. Under Article 137 para. 1 of the Code of Criminal Procedure, an accused may not be represented by more than three such lawyers (see paragraph 20 below) and he had already retained three counsel of his own choice (see paragraph 7 above).
At the trial, which lasted seventy-three days, the applicant was represented by the three court-appointed defence counsel.
12. On 16 February 1979 the Stuttgart Regional Court convicted the applicant of supporting a criminal organisation and sentenced him to two years and six months’ imprisonment; he was also barred from practising his profession for a period of four years and ordered to pay the costs and expenses, including those which he had been compelled to incur himself.
On 14 November 1979 the Federal Court of Justice (Bundesgerichtshof) dismissed Mr Croissant’s appeal on points of law.
13. On 27 December 1979 the costs office (Gerichtskasse) of the Regional Court set the costs and expenses at DM 239,439.30, including DM 209,683.20 for the fees and disbursements of the three court-appointed defence counsel. In an additional bill (Kostenrechnung) of 15 April 1981 it fixed the final amount at DM 253,246.16, DM 218,863.17 of which represented the lawyers’ fees and disbursements. The amount payable in respect of Mr Hauser was DM 63,012.79.
14. The applicant lodged an objection (Erinnerung) against this assessment, which he considered to be incompatible with Article 6 para. 3 (c) (art. 6-3-c) of the Convention. He argued that once free legal assistance had been granted no payment could subsequently be demanded, so that he was under no obligation to pay the court-appointed lawyers and in particular Mr Hauser, who had been imposed on him.
On 20 November 1986 the Regional Court dismissed the objection; it referred to the opinion which prevailed in German case-law and literature on the subject, which opinion had been endorsed by the Commission in a decision of 6 May 1982 (application no. 9365/81, Decisions and Reports 28, p. 229).
15. Mr Croissant lodged an appeal (Beschwerde) in the Stuttgart Court of Appeal, based on the same grounds. He stressed their particular relevance to Mr Hauser, who had been appointed against Mr Croissant’s will.
On 30 April 1987 the appeal was allowed in respect of two minor items (DM 113,70 in total), but was dismissed as to the main issue. The Court of Appeal held that the designation of a third court-appointed defence counsel had corresponded to a pressing need - ensuring an adequate defence -, on account of the scope and complexity of the case and in view of the probable duration of the trial. If the court, when making the appointment, had also purported to secure that the trial would take its legal course, it had rightly done so since that was a legitimate interest to be taken into account as well. As to the applicant’s arguments based on Article 6 para. 3 (c) (art. 6-3-c) of the Convention, the court endorsed the reasons given by the Regional Court. It added that the financial means of the defendant are immaterial for deciding whether or not the court should appoint a defence counsel. The question whether a convicted person is able to pay only arises after the criminal proceedings have ended.
16. On 23 June 1987 the Federal Constitutional Court, sitting as a panel of three judges, refused to entertain Mr Croissant’s constitutional appeal (Verfassungsbeschwerde), taking the view that it had no prospect of success. In the light of the Commission’s case-law, the court considered that it did not follow from Article 6 para. 3 (c) (art. 6-3-c) of the Convention that legal assistance was definitively provided free. It held that a convicted person’s obligation to pay costs and expenses derived from the fact that proceedings had been brought as a result of his own conduct. The principle of the "social state" (Sozialstaatsprinzip) and the right to a fair trial no doubt guaranteed that, where necessary, legal assistance be accorded to an indigent accused, but they did not require him to be definitively dispensed from paying the fees incurred. The law on legal costs and expenses made available other possibilities (arrangements for payment or stay of execution) to take effective account of the financial difficulties of the convicted person. Finally, the Court of Appeal’s conclusion regarding the necessity of appointing Mr Hauser as the third lawyer (see paragraph 15 above) was coherent and in any event had not been arbitrary.
17. In 1985 the applicant had already requested an extension of the time-limit for payment (Stundung), but this was refused by the President of the Stuttgart District Court (Amtsgericht) on 8 February 1988. After a first appeal (Beschwerde) had failed, his further appeal (weitere Beschwerde) was allowed on 18 August 1989, when the Stuttgart Court of Appeal quashed the earlier decisions and remitted the matter to the District Court. It considered that a decision to grant such an extension was primarily intended to facilitate the rehabilitation of a debtor who had already served his sentence. It was accordingly necessary to take account of the appellant’s argument that a rejection of his request would force him to make a declaration of assets (Offenbarungseid) and would hamper his efforts to resume practising as a lawyer. It was also necessary to bear in mind that the applicant had agreed to the inspection of his documents and accounts by a member of the Berlin Bar, in order to assess his income, and that the Federal Ministry of Justice had proposed to ask him to make a confidential statement under oath before a notary instead of a declaration of assets. Even though granting the extension would mean in reality that a large part of the debt would remain unpaid indefinitely, that did not justify a refusal; in any event it was unlikely that the total amount could ever be recovered. It was therefore necessary to reconsider the question and to determine whether it was possible to authorise smaller payments by instalments.
18. As a result, the President of the District Court granted several extensions of the time-limit, on the most recent occasion until March 1992. However, in October 1989, on his own initiative, Mr Croissant started to pay DM 50 per month, on the condition that this sum not be used to pay the court-appointed lawyers.
19. In 1985, 1987 and 1988 he had unsuccessfully sought to have the debt cancelled. A fourth such request, filed on 1 October 1990, led to an order made by the President of the Court of Appeal on 10 July 1991. Whilst dismissing the remainder of the application, he reserved, pending the ruling of the European Court of Human Rights, his decision on the payment of the fees and expenses of the court-appointed lawyers.
20. The following provisions of the Code of Criminal Procedure concerning assistance by defence counsel are relevant in the present case.
"(1) The accused (Beschuldigter) may be assisted by a lawyer at any stage of the proceedings. He may not be represented by more than three lawyers of his own choice.
(2) ..."
"(1) The assistance of a defence counsel is necessary where:
1. the trial at first instance is conducted in the Court of Appeal or the Regional Court;
..."
"(1) In the cases provided for in Article 140 (1) and (2), a defence counsel shall be appointed for an accused who has been officially charged before the court (Angeschuldigter) and is not yet represented by counsel, as soon as the accused is invited ... to make a statement on the indictment.
(2) Where the necessity of a defence counsel only becomes apparent at a later stage, one shall be appointed immediately.
(3) ...
(4) ..."
According to the case-law of the Federal Court of Justice and the Federal Constitutional Court, Article 141 (1) does not preclude a court from appointing, when it holds this to be necessary in the interests of justice, one or more defence counsel for an accused who is already represented by one or more counsel of his own choice.
"(1) In so far as possible, the President of the court shall designate the lawyer to be appointed from among the lawyers admitted to plead in a court within the same jurisdiction. The accused shall be offered the opportunity of indicating a lawyer of his choice within a prescribed time-limit. Unless there are important reasons for not doing so, the President shall appoint the lawyer indicated by the accused.
(2) ..."
Under Articles 48 and 49 of the German Regulations on Lawyers (Bundesrechtsanwaltsordnung), a lawyer designated as court- appointed defence counsel is obliged to assume the defence, but may request that the appointment be revoked when there are weighty grounds for doing so.
"1. The defendant shall bear the costs in so far as they ensue from proceedings brought on account of an offence for which he has been convicted ..."
21. The Land of Baden-Württemberg Law of 30 March 1971 on court costs provides as follows:
"(1) The payment of legal costs and other debts provided for in Article 1 (1), nos. 5 to 9, of the Regulation on the recovery of costs ... of 11 March 1937 ... may be deferred where their immediate payment would cause exceptional hardship to the person liable to pay and if such a deferment does not jeopardise the debt ...
(2) The debts referred to in paragraph 1 may be partly or wholly remitted :
1. if this seems appropriate in the pursuit of aims serving the public good; 2. where payment entails exceptional hardship for the person liable to pay; 3. where this is equitable on other specific grounds.
The same applies in regard to the reimbursement or crediting of sums already paid.
(3) The competent Minister shall take the decision provided for in paragraphs 1 and 2. In certain categories of cases he may delegate this power, in whole or in part, to subordinate authorities."
NON_VIOLATED_ARTICLES: 6
NON_VIOLATED_PARAGRAPHS: 6-1
6-3
NON_VIOLATED_BULLETPOINTS: 6-3-c


ITEMID: 001-72881
LANGUAGEISOCODE: ENG
RESPONDENT: POL
BRANCH: CHAMBER
DATE: 2006
DOCNAME: CASE OF KUBICZ v. POLAND
IMPORTANCE: 4
CONCLUSION: Violation of Art. 5-3;Remainder inadmissible;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award
JUDGES: Nicolas Bratza
TEXT: 4. The applicant was born in 1959 and lives in Chrzanów, Poland. He is represented before the Court by Mr T. Marek, a lawyer practising in Oświęcim, Poland.
5. On 16 March 2001 the Chrzanów District Court (Sąd Rejonowy) ordered that the applicant be detained on remand in view of the reasonable suspicion that he had committed armed robbery. The court considered that the applicant’s detention was justified in view of the gravity of the charges against him. There was also a risk that he could go into hiding.
6. On 21 May 2001 the applicant asked for release from detention. The Chrzanów District Prosecutor (Prokurator Rejonowy) refused on 29 May 2001. He considered that there was a reasonable suspicion that the applicant had committed the offence in question and a risk that he might obstruct the proper conduct of the proceedings. He found also that there were no grounds on which to release the applicant, as defined in Article 259 of the Code of Criminal Procedure. Furthermore, he underlined the gravity of the charges brought against him.
7. On 30 May 2001 the applicant was indicted on 3 counts of armed robbery committed together with 2 accomplices before the Katowice Regional Court (Sąd Okręgowy).
8. On 11 July 2001 the Katowice Regional Court ordered that the applicant be held in custody until 30 October 2001. The court repeated the reasons previously given for his detention.
9. On 23 July 2001 the Katowice Regional Court referred the case to the Cracow Regional Court, considering that that court had jurisdiction over the matter. The Cracow Regional Court disagreed and, on 24 September 2001, referred the case to the Cracow Court of Appeal (Sąd Apelacyjny) for a ruling determining which court was to deal with it. On 17 October 2001 the Court of Appeal ordered that the case be tried before the Katowice Regional Court.
10. The applicant’s detention was further extended on 25 October and 10 December 2001, despite the applicant’s requests for release.
11. The first hearing was to be held on 19 April 2002 but the trial was adjourned for procedural reasons.
12. During the proceedings the applicant’s detention was prolonged on several occasions. The last decision was taken on 11 October 2002, when the Katowice Regional Court ordered that he be held in custody until 15 March 2003.
13. The applicant made many unsuccessful applications for release and appealed, likewise unsuccessfully, against the decisions prolonging his detention. He maintained that his detention was excessive and that other measures, such as bail or police supervision could secure the proper conduct of the trial. All decisions dismissing his applications repeated the same grounds for the applicant’s detention: the reasonable suspicion against him and the severity of the anticipated sentence and the fear that he might tamper with evidence.
14. On 10 March 2003 the Katowice Regional Court convicted the applicant as charged and sentenced him to 3 years’ imprisonment.
15. The Katowice Court of Appeal upheld the first-instance judgment on 6 November 2003.
16. 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.
17. The applicant did not lodge a complaint under the 2004 Act.
18. The Code of Criminal Procedure of 1997, which entered into force on 1 September 1998, defines detention on remand as one of the so-called “preventive measures” (środki zapobiegawcze). The other measures are bail (poręczenie majątkowe), police supervision (dozór policji), guarantee by a responsible person (poręczenie osoby godnej zaufania), guarantee by a social entity (poręczenie społeczne), temporary ban on engaging in a given activity (zawieszenie oskarżonego w określonej działalności) and prohibition to leave the country (zakaz opuszczania kraju).
19. Article 249 § 1 sets out the general grounds for imposition of the preventive measures. That provision reads:
“Preventive measures may be imposed in order to ensure the proper conduct of proceedings and, exceptionally, also in order to prevent an accused’s committing another, serious offence; they may be imposed only if evidence gathered shows a significant probability that an accused has committed an offence.”
20. Article 258 lists grounds for detention on remand. It provides, in so far as relevant:
“1. Detention on remand may be imposed if:
(1) there is a reasonable risk that an accused will abscond or go into hiding, in particular when his identity cannot be established or when he has no permanent abode [in Poland];
(2) there is a justified fear that an accused will attempt to induce [witnesses or co-defendants] to give false testimony or to obstruct the proper course of proceedings by any other unlawful means;
2. If an accused has been charged with a serious offence or an offence for the commission of which he may be liable to a statutory maximum sentence of at least 8 years’ imprisonment, or if a court of first instance has sentenced him to at least 3 years’ imprisonment, the need to continue detention to ensure the proper conduct of proceedings may be based on the likelihood that a severe penalty will be imposed.”
21. The Code sets out the margin of discretion as to the continuation of a specific preventive measure. Article 257 reads, in so far as relevant:
“1. Detention on remand shall not be imposed if another preventive measure is sufficient.”
22. Article 259, in its relevant part, reads:
“1. If there are no special reasons to the contrary, detention on remand shall be lifted, in particular if depriving an accused of his liberty would:
(1) seriously jeopardise his life or health; or
(2) entail excessively harsh consequences for the accused or his family.”
23. The 1997 Code not only sets out maximum statutory time-limits for detention on remand but also, in Article 252 § 2, lays down that the relevant court – within those time-limits – must in each detention decision determine the exact time for which detention shall continue.
24. Article 263 sets out time-limits for detention. In the version applicable up to 20 July 2000 it provided:
“1. Imposing detention in the course of an investigation, the court shall determine its term for a period not exceeding 3 months.
3. The whole period of detention on remand until the date on which the first conviction at first instance is imposed may not exceed 2 years.
4. The court of appeal within whose jurisdiction the offence in question has been committed may, on application made by the court before which the case is pending or, at the investigation stage, on application made by the Prosecutor General, prolong detention on remand for a further fixed period exceeding the periods referred to in paragraphs 2 and 3, when it is necessary in connection with a stay of the proceedings, a prolonged psychiatric observation of the accused, a prolonged preparation of an expert report, when evidence needs to be obtained in a particularly complex case or from abroad, when the accused has deliberately prolonged the proceedings, as well as on account of other significant obstacles that could not be overcome.”
25. The 2004 Act lays down various legal means designed to counteract and/or redress the undue length of judicial proceedings.
Section 2 of the 2004 Act reads, in so far as relevant:
26. Section 5 reads, in so far as relevant:
“1. A complaint about the unreasonable length of proceedings shall be lodged while the proceedings are pending. ...”
27. Section 12 provides for measures that may be applied by the court dealing with the complaint. It reads, in so far as relevant:
“1. The court shall dismiss a complaint which is unjustified.
2. If the court considers that the complaint is justified, it shall find that there was an unreasonable delay in the impugned proceedings.
3. At the request of the complainant, the court may instruct the court examining the merits of the case to take certain measures within a fixed time-limit. Such instructions shall not concern the factual and legal assessment of the case.
4. If the complaint is justified the court may, at the request of the complainant, grant ... just satisfaction in an amount not exceeding PLN 10,000 to be paid by the State Treasury. If such just satisfaction is granted it shall be paid out of the budget of the court which conducted the delayed proceedings.”
28. Section 18 lays down transitional rules in relation to the applications already pending before the Court. It reads, in so far as relevant:
“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.
...”
29. On 18 January 2005 Supreme Court (Sąd Najwyższy) adopted a resolution (no. III SPP 113/04) in which it ruled that while the 2004 Act produced legal effects as from the date of its date of entry into force (17 September 2004), its provisions applied retroactively to all proceedings in which delays had occurred before that date and had not yet been remedied.
VIOLATED_ARTICLES: 5
VIOLATED_PARAGRAPHS: 5-3


ITEMID: 001-94202
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: CHAMBER
DATE: 2009
DOCNAME: CASE OF CHRISTODOULIDOU v. TURKEY
IMPORTANCE: 4
CONCLUSION: Violation of Article 1 of Protocol No. 1 - Protection of property;Violation of Article 3 - Prohibition of torture (Substantive aspect);No violation of Article 11 - Freedom of assembly and association
JUDGES: David Thór Björgvinsson;Giovanni Bonello;Ján Šikuta;Ledi Bianku;Nicolas Bratza;Päivi Hirvelä
TEXT: 7. The applicant was born in 1927 and lives in Nicosia.
8. The applicant claimed that until 1974 she had been permanently residing in a house she owned at 33, 28th October Street, Kyrenia (northern Cyprus). She also owned a garden at Kazafani and three fields with trees at Karmi (in the locality known as “Horteri Chomatovounos”), all in the District of Kyrenia.
9. According to the applicant, her house had a surface-area of 190 square metres, with three large drawing rooms, a spacious dining room and kitchen, four bedrooms, two bathrooms, a storeroom and verandas. It was surrounded by a 753 sq. m garden and furnished mainly with period antiques and luxury items.
10. In support of her claim to ownership, the applicant produced copies of the relevant certificates of ownership of Turkish-occupied immovable properties issued by the Republic of Cyprus. According to these documents, the applicant's properties were registered as follows:
(a) Kyrenia/Pano Kyrenia, plot no. 45, sheet/plan 12/21.1.12, registration no. C1703, house with garden;
(b) Kyrenia/Kazafani, plot no. 95/1/1, sheet/plan 12/22W2, garden/orchard; area: 2,351 sq. m;
(c) Kyrenia/Karmi, plot no. 222, sheet/plan 12/27E2, field; area: 3,138 sq. m;
(d) Kyrenia/Karmi, plot no. 282, sheet/plan 12/27E2, field; area: 1,650 sq. m;
(e) Kyrenia/Karmi, plot no. 291/1, sheet/plan 12/27E2, field; area: 2,264 sq. m.
11. Since the 1974 Turkish intervention, the applicant has been deprived of her properties, which were located in the area under the occupation and control of the Turkish military authorities, who prevented her from having access to and using her properties.
12. On 19 July 1989, the applicant joined an anti-Turkish demonstration in the Ayios Kassianos area in Nicosia in which the applicants in the Chrysostomos and Papachrysostomou v. Turkey and Loizidou v. Turkey cases (see below) also took part.
13. According to an affidavit sworn by the applicant at Nicosia District Court on 10 April 2000, the demonstration of 19 July 1989 was peaceful and was held on the fifteenth anniversary of the Turkish intervention in Cyprus, in support of the missing persons and to protest against human- rights violations. The applicant and other women had planned to gather in the grounds of the Ayios Kassianos School and to stage a sit-in in protest against the occupation of the northern part of the island. They also asked the Bishop of Kitium to conduct a service in the St. George's Chapel, which was located near the school.
14. When the applicant arrived, the school grounds were filled with a group of mostly young women, who were singing. The applicant stood near a water tank. She noticed the presence of UN soldiers and Turkish policemen armed with batons.
15. The UN officers invited the demonstrators to leave the premises. However, within a matter of seconds, the Turkish policemen had rushed towards them. Some of the women were grabbed by their clothes and hit with guns and batons. The applicant herself was hit and pushed. She received what she described as a “terrible blow in the right leg beneath the tibia”. She realised she had been hit with a sharp object, namely a bayonet wielded by a Turkish soldier. Her leg started to bleed profusely and she felt herself drifting into unconsciousness. She shouted: “Help, help, please, I am losing my leg”. Some demonstrators put her on a stretcher and she was taken by ambulance to Nicosia General Hospital.
16. At the hospital, her wound was stitched internally and externally. She was told to take ten days' absolute rest. For the next six months, the applicant suffered considerable pain in her leg. She could not walk or even put weight on the leg and was forced to use crutches. She experienced pain with changes in the weather. She continued to have problems climbing stairs and the scar on her leg remained visible.
17. As many years had passed since the demonstration, three of the witnesses who saw the wound being inflicted (two friends and the editor of a local newspaper) had already died. However, an affidavit sworn by a witness, Mrs Olga Nicolaidou, corroborated her version of events.
18. In support of her claim of ill-treatment, the applicant produced a medical certificate issued on 27 March 2000 by Doctor Stelios Georgiou, a specialist orthopaedic surgeon practising in Nicosia, which reads as follows:
“The [applicant] was injured on 19.7.1989 by Turks following an attack on women near Ayios Kassianos in Nicosia in the Ayios Kassianos Primary School. The findings of the examination were:
Injury to the right lower limb of the upper third of the tibia with an open wound about 9cm long. The wound was caused with a sharp object.
Treatment of the patient and its course:
1. Surgical cleaning of the wound;
2. Stitching up of the wound;
3. Pharmaceutical treatment;
4. Regular dressing of the wound;
5. Complete rest in bed for ten days with leg supported by pillows;
6. The stitches removed ten days later;
7. The patient [should walk] with crutches for 1 month;
Present condition:
1. Evident ugly scar, about 9cm in the upper third of the tibia, transversal;
2. Loss of feeling in the area of the wound.”
19. The Government alleged that the applicant had participated in a violent demonstration with the aim of inflaming anti-Turkish sentiment. The demonstrators, supported by the Greek-Cypriot administration, were demanding that the “Green Line” in Nicosia should be dismantled. Some carried Greek flags, clubs, knives and wire-cutters. They were acting in a provocative manner and shouting abuse. The demonstrators were warned in Greek and English that unless they dispersed they would be arrested in accordance with the laws of the “TRNC”. The applicant was arrested by the Turkish-Cypriot police after crossing the UN buffer zone and entering the area under Turkish-Cypriot control. The Turkish-Cypriot police intervened in the face of the manifest inability of the Greek-Cypriot authorities and the UN Force in Cyprus to contain the incursion and its possible consequences.
20. No force was used against demonstrators who did not intrude into the “TRNC” border area and, in the case of demonstrators who were arrested for violating the border, no more force was used than was reasonably necessary in the circumstances in order to arrest and detain the persons concerned. No one was ill-treated. It was possible that some of the demonstrators had hurt themselves in the confusion or in attempting to scale barbed wire or other fencing. Had the Turkish police, or anyone else, assaulted or beaten any of the demonstrators, the UN Secretary General would no doubt have referred to this in his report to the Security Council.
21. In his report of 7 December 1989 on the UN operations in Cyprus, the UN Secretary General stated, inter alia:
“A serious situation, however, arose in July as a result of a demonstration by Greek Cypriots in Nicosia. The details are as follows:
(a) In the evening of 19 July, some 1,000 Greek Cypriot demonstrators, mostly women, forced their way into the UN buffer zone in the Ayios Kassianos area of Nicosia. The demonstrators broke through a wire barrier maintained by UNFICYP and destroyed an UNFICYP observation post. They then broke through the line formed by UNFICYP soldiers and entered a former school complex where UNFICYP reinforcements regrouped to prevent them from proceeding further. A short while later, Turkish-Cypriot police and security forces elements forced their way into the area and apprehended 111 persons, 101 of them women;
(b) The Ayios Kassianos school complex is situated in the UN buffer zone. However, the Turkish forces claim it to be on their side of the cease-fire line. Under working arrangements with UNFICYP, the Turkish-Cypriot security forces have patrolled the school grounds for several years within specific restrictions. This patrolling ceased altogether as part of the unmanning agreement implemented last May;
(c) In the afternoon of 21 July, some 300 Greek Cypriots gathered at the main entrance to the UN protected area in Nicosia, in which the UN headquarters is located, to protest the continuing detention by the Turkish-Cypriot authorities of those apprehended at Ayios Kassianos. The demonstrators, whose number fluctuated between 200 and 2,000, blocked all UN traffic through this entrance until 30 July, when the Turkish-Cypriot authorities released the last two detainees;
(d) The events described above created considerable tension in the island and intensive efforts were made, both at the UN headquarters and at Nicosia, to contain and resolve the situation. On 21 July, I expressed my concern at the events that have taken place and stressed that it was vital that all parties keep in mind the purpose of the UN buffer zone as well as their responsibility to ensure that that area was not violated. I also urged the Turkish-Cypriot authorities to release without delay all those who had been detained. On 24 July, the President of the Security Council announced that he had conveyed to the representatives of all the parties, on behalf of the members of the Council, the Council's deep concern at the tense situation created by the incidents of 19 July. He also stressed the need strictly to respect the UN buffer zone and appealed for the immediate release of all persons still detained. He asked all concerned to show maximum restraint and to take urgent steps that would bring about a relaxation of tension and contribute to the creation of an atmosphere favourable to the negotiations.”
22. Section 70 of the Cypriot Criminal Code reads as follows:
“Where five or more persons assemble with intent to commit an offence, or, being assembled with intent to carry out some common purpose, conduct themselves in such a manner as to cause persons in the neighbourhood to fear that the persons so assembled will commit a breach of the peace, or will by such assembly needlessly and without any reasonable occasion provoke other persons to commit a breach of the peace they are an unlawful assembly.
It is immaterial that the original assembly was lawful if, being assembled, they conduct themselves with a common purpose in such a manner as aforesaid.
When an unlawful assembly has begun to execute the purpose, whether of a public or of a private nature, for which it assembled by a breach of the peace and to the terror of the public, the assembly is called a riot, and the persons assembled are said to be riotously assembled.”
23. According to section 71 of the Criminal Code, any person who takes part in an unlawful assembly is guilty of a misdemeanour and liable to imprisonment for one year.
24. Section 80 of the Criminal Code provides:
“Any person who carries in public without lawful occasion any offensive arm or weapon in such a manner as to cause terror to any person is guilty of a misdemeanour, and is liable to imprisonment for two years, and his arms or weapons shall be forfeited.”
25. According to section 82 of the Criminal Code, it is an offence to carry a knife outside the home.
26. The relevant part of Chapter 155, section 14 of the Criminal Procedure Law states:
“(1) Any officer may, without warrant, arrest any person -
...
(b) who commits in his presence any offence punishable with imprisonment;
(c) who obstructs a police officer, while in the execution of his duty...”
27. Section 9 of Law No. 5/72 states:
“... Any person who enters a prohibited military area without authorization, or by stealth, or fraudulently, shall be tried by a military court in accordance with the Military Offences Act; those found guilty shall be punished.”
28. Subsections 12 (1) and (5) of the Aliens and Immigration Law read as follows:
“1. No person shall enter or leave the Colony except through an approved port.
...
5. Any person who contravenes or fails to observe any of the provisions of subsections (1), (2), (3) or (4) of this section shall be guilty of an offence and shall be liable to imprisonment for a term not exceeding six months or to a fine not exceeding one hundred pounds or to both such imprisonment and fine.”
VIOLATED_ARTICLES: 3
P1
VIOLATED_PARAGRAPHS: P1-1
NON_VIOLATED_ARTICLES: 11


ITEMID: 001-93528
LANGUAGEISOCODE: ENG
RESPONDENT: DEU
BRANCH: GRANDCHAMBER
DATE: 2009
DOCNAME: CASE OF MOOREN v. GERMANY
IMPORTANCE: 2
CONCLUSION: Preliminary objections dismissed (non-exhaustion of domestic remedies);No violation of Art. 5-1;Violations of Art. 5-4;Non-pecuniary damage - award
JUDGES: Alvina Gyulumyan;Christos Rozakis;Corneliu Bîrsan;Dean Spielmann;Elisabet Fura;Françoise Tulkens;George Nicolaou;Ineta Ziemele;Isabelle Berro-Lefèvre;Javier Borrego Borrego;Jean-Paul Costa;Josep Casadevall;Khanlar Hajiyev;Ledi Bianku;Margarita Tsatsa-Nikolovska;Nicolas Bratza;Peer Lorenzen;Rait Maruste;Renate Jaeger;Snejana Botoucharova;Volodymyr Butkevych
TEXT: 9. The applicant was born in 1963. At the date the application was lodged, he was living in Mönchengladbach.
10. On 25 July 2002 the applicant was arrested.
11. On the same day the Mönchengladbach District Court ordered his detention on remand after hearing representations from him. The applicant was assisted from this point on by counsel. In a detention order running to some one and a half pages, the District Court found that there was a strong suspicion that the applicant had evaded taxes on some twenty occasions between 1996 and June 2002, an offence punishable under various provisions (which were specified in detail) of the Tax Code, the Turnover Tax Code, the Income Tax Code and the Regulations on Trade Taxes. He had been working as a self-employed commercial agent for fifteen different firms in Germany (whose names were listed in detail in the order) since 1994. He had also been running a telephone service since 2000; in 2001 a company, TMA Aachen, had paid him commission amounting to 124,926.22 Deutschmarks (DEM). The court found on the basis of the documents before it that there were grounds for suspecting the applicant of having evaded turnover taxes of 57,374 euros (EUR), income taxes of EUR 133,279 and trade taxes of EUR 20,266.
12. Noting that the applicant, who had availed himself of the right to remain silent, was strongly suspected of tax evasion on the basis of business records that had been seized when his home was searched, the District Court decided that he had to be placed in pre-trial detention because of the danger of collusion (Verdunkelungsgefahr – see Article 112 § 2 no. 3 of the Code of Criminal Procedure, cited in paragraph 45 below). It also noted that the documents seized were incomplete, so that there was a risk that the applicant, if released, might destroy the missing documents or conceal further business transactions and accounts.
13. On 7 August 2002 the applicant, represented by counsel, lodged an application for review of his detention order (Haftprüfung) with the Mönchengladbach District Court. His counsel also requested access to the case file, which he argued he had a right to inspect in order to apprise himself of all the facts and evidence on which the detention order and, in particular, the strong suspicion that an offence had been committed were based. He also pointed out that domestic law prohibited the District Court from considering facts and evidence to which defence counsel had been refused access pursuant to Article 147 § 2 of the Code of Criminal Procedure (see paragraph 52 below).
14. On 12 August 2002 the Mönchengladbach Public Prosecutor's Office informed the applicant's counsel that he was being refused access to the case file pursuant to Article 147 § 2 of the Code of Criminal Procedure as it would jeopardise the purpose of the investigation. It added, however, that the public prosecutor in charge of the case was prepared to inform counsel orally about the facts and evidence at issue. The applicant's counsel did not take up that offer.
15. On 16 August 2002 the Mönchengladbach District Court heard representations from the applicant and his defence counsel. The applicant argued that there was no risk of collusion or of his absconding. Should the court nevertheless consider that he might abscond if released he was ready to comply with any conditions imposed by the court, such as handing over his identity papers. The applicant's counsel complained that he had still not had access to the case file.
16. By an order of the same day, the Mönchengladbach District Court, which had before it the case file of the proceedings, upheld the detention order. It found that there was still a risk that, if released, the applicant would tamper with factual evidence or interfere with witnesses. The applicant had consistently sought.
17. Following the applicant's appeal, which was lodged on 16 August 2002 and was followed up by detailed reasons on 19 August 2002, the Mönchengladbach Regional Court informed the applicant in a letter dated 27 August 2002 that it considered that the risk of his absconding could serve as a ground for his continued detention. As to his counsel's request for access to the case file, it stated that he should be informed orally about the content of the file in the first instance.
18. In a letter dated 2 September 2002, the applicant contested that view. He claimed, in particular, that in his case mere oral information about the content of the case file would not be sufficient.
19. On 9 September 2002, after hearing representations from the Public Prosecutor's Office and considering the case file, the Mönchengladbach Regional Court dismissed the applicant's appeal against the District Court's decision dated 16 August 2002. It found that there was a strong suspicion that the applicant had evaded income, turnover and trade taxes. Furthermore, there was a danger of his absconding within the meaning of Article 112 § 2 no. 2 of the Code of Criminal Procedure (see paragraph 45 below), as the applicant had connections in foreign countries and faced a heavy sentence.
20. In view of defence counsel's refusal to accept the offer made by the Public Prosecutor's Office to explain the content of the case file orally, the Regional Court found that it was impossible to assess whether the information given in this manner would be sufficient. At that stage of the proceedings, however, counsel for the defence could not claim to be entitled to unlimited access to the complete case file.
21. The Regional Court's decision was served on the applicant's counsel on 16 September 2002.
22. On 16 September 2002 the applicant, represented by counsel, lodged a further appeal against the detention order. He again claimed that he had a constitutional right to be given access to the facts and evidence on which the detention order was based.
23. On 17 September 2002 the Mönchengladbach Regional Court decided, without giving further reasons, not to vary its decision of 9 September 2002. On 18 September 2002 the Mönchengladbach Public Prosecutor's Office, which was in possession of the case file, drafted a report which was sent to the Düsseldorf Chief Public Prosecutor's Office with the file the next day.
24. On 26 September 2002 the Chief Public Prosecutor's Office, in its submissions to the Düsseldorf Court of Appeal, stated that it was not prepared to give the applicant access to the case file as it was sufficient for the applicant to be notified of the Düsseldorf Tax Fraud Office's overview of the amount of his income and amount of the taxes evaded in the years in question. The submissions and the case file reached the Düsseldorf Court of Appeal on 2 October 2002.
25. On 2 October 2002 the applicant sent further observations to the Düsseldorf Court of Appeal.
26. On 9 October 2002 the applicant, who had been sent the submissions of the Chief Public Prosecutor's Office on 7 October 2002, contested its arguments. He stated that the overview in question was merely a conclusion of the Tax Fraud Office the merits of which he could not examine without having access to the documents and records on which it was based.
27. On 14 October 2002 the Düsseldorf Court of Appeal, on the applicant's further appeal, quashed the District Court's decision dated 16 August 2002 and the Regional Court's decision dated 9 September 2002 upholding the applicant's detention and remitted the case to the District Court.
28. The Court of Appeal, which had the investigation file before it, found that the detention order issued by the District Court on 25 July 2002 did not comply with the statutory requirements and that the decisions taken in the judicial review proceedings by the District Court on 16 August 2002 and by the Regional Court on 9 September 2002 (but not the detention order of 25 July 2002 itself) therefore had to be quashed. It noted that Article 114 § 2 no. 4 of the Code of Criminal Procedure (see paragraph 46 below) required the facts that established strong suspicion that the accused had committed an offence and that formed the basis for his detention to be set out in the detention order. Moreover, in order to comply with the constitutional rights to be heard and to a fair trial, the facts and evidence on which the suspicion and the reasons for the defendant's detention on remand were based had to be described in sufficient detail to enable the accused to comment on them and defend himself effectively. The facts and evidence had to be set out in greater detail in the detention order in cases in which defence counsel had been denied access to the case file under Article 147 § 2 of the Code of Criminal Procedure.
29. The Court of Appeal noted, however, that in its decisions on the applicant's detention the District Court had confined itself to noting that the applicant was strongly suspected of tax evasion “on the basis of the business records seized when his home was searched” when it should, at minimum, have summarised the results of the evaluation of those records in order to enable the accused to oppose the decision on detention by making his own submissions or presenting evidence. This defect had not been remedied in the course of the subsequent decisions on the applicant's continued detention. As counsel for the defence had also been refused access to the case file under Article 147 § 2 of the Code of Criminal Procedure, these defects amounted to a denial of the right of the accused to be heard.
30. The Court of Appeal declined to take its own decision on the applicant's detention under Article 309 § 2 of the Code of Criminal Procedure (see paragraph 50 below) or to quash the detention order of 25 July 2002. Referring to the civil courts' case-law on that issue (namely, two decisions of the Karlsruhe Court of Appeal, no. 3 Ws 196/00 and no. 3 Ws 252/85, and to a decision of the Berlin Court of Appeal, no. 5 Ws 344/93 – see paragraph 48 below) it considered that the District Court's detention order was defective in law (rechtsfehlerhaft), but not void (unwirksam). The defect could be remedied in the course of the judicial review proceedings (see Hamburg Court of Appeal, no. 2 Ws 124/92, and Berlin Court of Appeal, no. 5 Ws 344/93 – paragraph 48 below). It stated that it would only quash a detention order if it was obvious that there was either no strong suspicion that the accused had committed an offence or that there were no reasons for the arrest, but that that was not the position in the applicant's case. It was for the District Court to inform the accused of the grounds on which he was suspected of having committed an offence and to hear representations from him on that issue (see also Berlin Court of Appeal, no. 5 Ws 344/93, cited at paragraph 51 below). Should the Public Prosecutor's Office persist, in the interest of its investigations, in not informing the accused of the reasons for his detention, the detention order would have to be quashed.
31. As a consequence, the applicant remained in custody.
32. On 17 October 2002 the Mönchengladbach Public Prosecutor's Office requested the District Court to issue a fresh, amended detention order against the applicant.
33. On 29 October 2002 the Mönchengladbach District Court again heard representations from the applicant, his defence counsel, the Public Prosecutor's Office and an official in charge of investigations at the Düsseldorf Tax Fraud Office on the applicant's application for judicial review of the detention order. The applicant's counsel was given copies of four pages of the voluminous case file containing the overview by the Düsseldorf Tax Fraud Office of the amount of the applicant's income and of the taxes he was alleged to have evaded between 1991 and 2002. Relying on the applicant's rights to be heard and to a fair trial, the applicant's counsel complained that he had not been granted access to the case file before the hearing.
34. The Mönchengladbach District Court then issued a fresh order, running to four pages, for the applicant's detention. It stated that there was a strong suspicion that the applicant had evaded taxes on some twenty occasions between 1991 and June 2002. Listing in detail the applicant's income from his various activities as a self-employed commercial agent for six different firms and as marketing director of the TMA Aachen company and the amounts of tax payable in each of the years in question, the District Court found that there was a strong suspicion that he had evaded turnover taxes of DEM 125,231.79, income taxes of DEM 260,025, solidarity taxes of DEM 15,240.11 and trade taxes of DEM 36,930. It based its suspicion on documents whose content was explained by a tax official present at the hearing, witness statements of the owners of the firms the applicant was working for, the applicant's contracts of employment and wage slips and commission statements that had been issued by the firms.
35. The District Court further found that there was a risk of the applicant's absconding (a ground for detention under Article 112 § 2 no. 2 of the Code of Criminal Procedure) as he faced a lengthy prison sentence which could possibly no longer be suspended on probation, had not notified the authorities of his place of residence for a number of years and had claimed that he was living in the Netherlands.
36. By an order of the same day, the Mönchengladbach District Court decided to suspend the execution of the detention order on condition that the applicant (who in the meantime had complied with his duty to inform the authorities of his address) informed the court of every change of address, complied with all summonses issued by the court, the Public Prosecutor's Office and the police, and reported to the police three times a week. However, the district court did not order the applicant's immediate release as the Public Prosecutor's Office had immediately lodged an appeal.
37. On 7 November 2002, after hearing representations from the applicant and the Public Prosecutor's Office, the Mönchengladbach Regional Court dismissed the applicant's appeal against the detention order. It likewise dismissed the appeal lodged by the Public Prosecutor's Office against the decision to suspend the execution of the detention order on the additional conditions that the applicant hand over his identity papers to the Public Prosecutor's Office and deposit EUR 40,000 as security.
38. Having deposited the security, the applicant was released from prison on 7 November 2002.
39. On 8 November 2002 the applicant lodged a further appeal against the Regional Court's decision, complaining that his counsel had still not been granted access to the case file.
40. By a letter dated 18 November 2002, the Mönchengladbach Public Prosecutor's Office granted the applicant's counsel access to the case file. It stated that it had intended to send the file to him at an earlier date, but that this had not been possible as the file had been at the Regional Court and had only recently been returned to the Public Prosecutor's Office. The applicant's counsel received the file for inspection on 20 November 2002. The applicant withdrew his further appeal on 10 December 2002.
41. On 23 October 2002 the applicant lodged a complaint with the Federal Constitutional Court against the decision of the Düsseldorf Court of Appeal dated 14 October 2002 and the detention order issued by the Mönchengladbach District Court on 25 July 2002. In his submission, his rights to liberty, to be heard in court and to be informed promptly by a judge of the reasons for his detention on remand as well as his rights to be heard within a reasonable time and to a fair trial as guaranteed by the Basic Law had been violated. He argued in particular that his right to liberty, the deprivation of which was only constitutional if it was in accordance with the law, had been breached by his illegal detention on the basis of a void detention order. The complete refusal to allow his defence counsel access to the case file pursuant to Article 147 § 2 of the Code of Criminal Procedure had violated his right to be heard in court, as guaranteed by Article 103 § 1 of the Basic Law (see paragraph 53 below), and his right to liberty under Article 104 § 3 of the Basic Law (see paragraph 54 below). The impugned decisions disregarded both the case-law of the Federal Constitutional Court and the Court's case-law as laid down in its judgments of 13 February 2001 in the cases of Garcia Alva, Lietzow v. Germany and Schöps v. Germany. The Court of Appeal's refusal to quash the detention order and its decision to remit the case to the District Court instead had also breached his right to a fair hearing within a reasonable time.
42. On 4 and 11 November 2002 the applicant extended his constitutional complaint to include the decisions of the Mönchengladbach District Court dated 29 October 2002 and the decision of the Mönchengladbach Regional Court dated 7 November 2002.
43. On 22 November 2002 the Federal Constitutional Court, without giving further reasons, declined to consider the applicant's constitutional complaint against the detention orders issued by the Mönchengladbach District Court on 25 July 2002 and 29 October 2002, the decision of the Mönchengladbach Regional Court dated 7 November 2002 and the decision of the Düsseldorf Court of Appeal dated 14 October 2002.
44. On 9 March 2005 the Mönchengladbach District Court convicted the applicant on eight counts of tax evasion and sentenced him to a total of one year and eight months' imprisonment suspended on probation. It found that the applicant, who had confessed to the offences, had evaded turnover taxes of DEM 129,795, income taxes of DEM 344,802 and trade taxes of DEM 55,165.
45. Articles 112 et seq. of the Code of Criminal Procedure (Strafprozessordnung) concern detention on remand. Pursuant to Article 112 § 1 of the Code, a defendant may be detained on remand if there is a strong suspicion that he has committed a criminal offence and if there are grounds for arresting him. Grounds for arrest will exist where certain facts warrant the conclusion that there is a risk of his absconding (Article 112 § 2 no. 2) or of collusion (Article 112 § 2 no. 3).
46. According to Article 114 §§ 1 and 2 of the Code of Criminal Procedure, detention on remand is ordered by a judge in a written detention order. The detention order identifies the accused, the offence of which he is strongly suspected, including the time and place of its commission, and the grounds for the arrest (nos. 1-3 of Article 114 § 2). Moreover, the facts establishing the grounds for the strong suspicion that an offence has been committed and for the arrest must be set out in the detention order unless national security would thereby be endangered (Article 114 § 2 no. 4).
47. Under Article 117 § 1 of the Code of Criminal Procedure, remand prisoners may at any time seek judicial review (Haftprüfung) of a decision to issue a detention order or ask for the order to be suspended. They may lodge an appeal under Article 304 of the Code of Criminal Procedure (Haftbeschwerde) against a decision ordering their (continued) detention and a further appeal (weitere Beschwerde) against the Regional Court's decision on the appeal (Article 310 § 1 of the Code of Criminal Procedure). Decisions on a person's pre-trial detention have to be taken speedily (compare, among many others, Berlin Court of Appeal, no. 5 Ws 344/93, decision of 5 October 1993, Strafverteidiger (StV) 1994, p. 319). As a rule, pre-trial detention must not continue for more than six months (see Article 121 § 1 of the Code of Criminal Procedure; compare Federal Constitutional Court, no. 2 BvR 558/73, decision of 12 December 1973).
48. The consequences of a court's finding in the course of judicial review proceedings that a detention order is flawed will depend on the nature of the defect found. Certain formal defects, in particular a failure to set out in sufficient detail in the order the facts establishing the grounds for strong suspicion that an offence has been committed and for the arrest, as required by Article 114 § 2 no. 4 of the Code of Criminal Procedure, will make the order defective in law (rechtsfehlerhaft), but not void (unwirksam / nichtig) (see, inter alia, Karlsruhe Court of Appeal, no. 3 Ws 252/85, decision of 28 November 1985, Neue Zeitschrift für Strafrecht (NStZ) 1986, pp. 134-35; and Berlin Court of Appeal, no. 5 Ws 344/93, decision of 5 October 1993, StV 1994, p. 318). Such defects may therefore be remedied by the appeal courts in the course of the judicial review proceedings by either quashing the defective order or replacing it with a fresh, duly reasoned order (compare, inter alia, Karlsruhe Court of Appeal, no. 3 Ws 252/85, decision of 28 November 1985, NStZ 1986, pp. 134-35 with further references; Hamburg Court of Appeal, no. 2 Ws 124/92, decision of 23 March 1992, Monatsschrift für Deutsches Recht (MDR) 1992, p. 694; Berlin Court of Appeal, no. 5 Ws 344/93, decision of 5 October 1993, StV 1994, pp. 318-319; and Karlsruhe Court of Appeal, no. 3 Ws 196/00, decision of 26 September 2000, StV 2001, p. 118). A defective detention order thus remains a valid basis for detention until the defect is remedied. On the contrary, detention on the basis of a detention order which is void owing to a serious and obvious defect is unlawful (see paragraph 49).
49. The Federal Court of Justice gave the following reasons for the distinction between void and defective court decisions:
“Only in rare, exceptional cases can a court decision be considered void in its entirety, with the consequence that it is legally irrelevant (see ...). This is a consequence of the requirements of legal certainty and its corollary, the authority of court decisions, as well as of the overall structure of criminal proceedings with its system of legal remedies designed to correct defective decisions. Considering a court decision ... as legally irrelevant means that anyone may claim that it is null and void at any stage of the proceedings, even after it has become final... In the case of decisions which can be challenged by an appeal, the statutory rules – formalities and time-limits – become inoperative if the decisions are deemed legally irrelevant. Such consequences, which run counter to the overall order of the law of criminal procedure, may be drawn from the defectiveness of a court decision only, if at all, where it would be unthinkable for the legal community to recognise (at least provisionally) its validity. This will occur if the extent and gravity of the defect are such that the decision blatantly contradicts the spirit of the Code of Criminal Procedure and key principles of our legal order (see ...). From the perspective of legal certainty, the assumption that a decision is null and void presupposes, in addition, that the serious defect is obvious” (see Federal Court of Justice, no. 1 BJs 80/78, decision of 16 October 1980, Neue Juristische Wochenschrift (NJW) 1981, p. 133 with further references; compare also Federal Court of Justice, no. 1 StR 874/83, decision of 24 January 1984, NStZ 1984, p. 279)
50. As regards the consequences of a finding by a court of appeal, on a further appeal by the detainee, that a detention order is flawed, Article 309 § 2 of the Code of Criminal Procedure lays down that if the appeal court considers the appeal against the (continued) detention well-founded, it must take the necessary decision in the case at the same time. The court of appeal thus decides the merits of the case in the lower courts' stead (see, for instance, Düsseldorf Court of Appeal, no. 4 Ws 222/02, decision of 18 June 2002, NJW 2002, p. 2964).
51. However, the courts of appeal have developed exceptions to the rule laid down in Article 309 § 2 of the Code of Criminal Procedure. In certain limited circumstances, a case may exceptionally be remitted to the court of first instance if there has been a procedural defect which the court of appeal cannot properly remedy itself (see Brandenburg Court of Appeal, no. 2 Ws 50/96, decision of 17 April 1996, NStZ 1996, pp. 406-07; and Düsseldorf Court of Appeal, no. 4 Ws 222/02, decision of 18 June 2002, NJW 2002, pp. 2964-65). In particular, a court of appeal may remit the case to the district court instead of taking its own decision on the merits if a detention order does not comply with the duty to set out the grounds for suspecting the accused of an offence and if, in addition, the prosecution refused access to the case file. The explanation for this is that, in such cases, the defective reasoning effectively amounts to a breach of the duty to hear representations from the defendant. It was the district court which had jurisdiction to inform the accused for the first time of the grounds for suspecting him of an offence and to hear representations from him (see Berlin Court of Appeal, no. 5 Ws 344/93, decision of 5 October 1993, StV 1994, pp. 318-19). The duty to expedite proceedings in which the suspect is in detention does not warrant a different conclusion as only a remittal of the case will enable him to avail himself effectively of his right to be heard (see Berlin Court of Appeal, no. 5 Ws 344/93, decision of 5 October 1993, StV 1994, p. 319).
52. Article 147 § 1 of the Code of Criminal Procedure provides that defence counsel is entitled to consult the file which has been or will be presented to the trial court, and to inspect the exhibits. Paragraph 2 of this provision allows access to part or all of the file or to the exhibits to be refused until the preliminary investigation has ended if the investigation might otherwise be at risk. At no stage of the proceedings may defence counsel be refused access to records concerning the examination of the accused, acts in the judicial investigation at which defence counsel was or should have been allowed to be present or expert reports (Article 147 § 3 of the said Code). Pending the termination of the preliminary investigation, it is for the Public Prosecutor's Office to decide whether to grant access to the file or not; thereafter it is for the president of the trial court (Article 147 § 5). An accused who is in detention is entitled by virtue of Article 161a § 3 of the Code of Criminal Procedure to seek judicial review of a decision of the Public Prosecutor's Office to refuse access to the file. Pursuant to that provision, the regional court for the district where the Public Prosecutor's Office is located has jurisdiction to hear applications for judicial review; its decisions are not subject to appeal.
53. According to Article 103 § 1 of the Basic Law every person involved in proceedings before a court is entitled to be heard by that court (Anspruch auf rechtliches Gehör).
54. Article 104 § 3 of the Basic Law provides that every person provisionally detained on suspicion of having committed a criminal offence must be brought before a judge no later than the day following his arrest; the judge must inform him of the reasons for the arrest, hear representations from him and give him an opportunity to raise objections. The judge must then, without delay, either issue a written detention order setting out the grounds therefor or order the detainee's release.
VIOLATED_ARTICLES: 5
VIOLATED_PARAGRAPHS: 5-4
NON_VIOLATED_ARTICLES: 5
NON_VIOLATED_PARAGRAPHS: 5-1


ITEMID: 001-88364
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: ADMISSIBILITY
DATE: 2008
DOCNAME: MILLER v. THE UNITED KINGDOM
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: David Thór Björgvinsson;Giovanni Bonello;Lech Garlicki;Ledi Bianku;Mihai Poalelungi;Nicolas Bratza
TEXT: The applicant, Mr David Miller, is a British national who was born in 1940 and lives in Cornwall. He was represented before the Court by Royds Rdw, solicitors in London. The United Kingdom Government (“the Government”) were represented by their Agent, Mr C. Whomersley of the Foreign and Commonwealth Office.
The facts of the case, as submitted by the parties, may be summarised as follows.
The applicant’s wife died on 5 December 1998. His claim for widows’ benefits was made on 19 September 2000 and was rejected on 28 September 2000 on the ground that he was not entitled to widows’ benefits because he was not a woman. On 25 October 2000 the applicant made a request for reconsideration and on 8 November 2000 the previous decision was upheld. The applicant did not appeal further as he considered or was advised that such a remedy would be bound to fail since no such social security benefits were payable to widowers under United Kingdom law.
The applicant was not in receipt of child benefit at the time of his claim.
The domestic law relevant to this application is set out in Willis v. the United Kingdom, no. 36042/97, §§ 1426, ECHR 2002-IV and Runkee and White v. the United Kingdom, no. 42949/98, §§ 40-41, 25 July 2007.


ITEMID: 001-22773
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: ADMISSIBILITY
DATE: 2002
DOCNAME: DAGLI v. TURKEY
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Ireneu Cabral Barreto;Mark Villiger
TEXT: The applicant, Mr Nuri Dağlı, is a Turkish national, who was born in 1963 and lives in Kayseri.
The facts of the case, as submitted by the parties, may be summarised as follows.
On 18 June 1998 the Supreme Military Council (Yüksek Askeri Şura) decided to discharge the applicant from the army on grounds of acts of “insubordination and immoral conduct” pursuant to Article 94(b) of Law 926.
On 6 July 1998 the applicant filed an application with the Ankara Supreme Military Administrative Court (Yüksek İdare Mahkemesi) against the decision of the Supreme Military Council.
On 1 September 1998 the Ankara Supreme Military Administrative Court rejected the application.
The Government submit the following in the light of the intelligence reports concerning the applicant:
The applicant, a sergeant, was a member of the Nurculuk branch of the Nakşibendi sect. He was involved in disseminating the Nakşibendi ideology. He acted discriminatorily in favour of the soldiers under his command who adopted the same ideology. He did not dedicate himself to the principles of the Turkish Republic, notably to secularism. He adopted an extreme religious ideology. He had an antisocial character and his wife carried an Islamic scarf. He refused to participate in social meetings because he believed that men and women should gather separately.
The applicant was sentenced to seven days’ confinement for being absent when called out and was sentenced to two days’ confinement for disobeying orders.
A committee of nine members of the armed forces concluded, in the light of the findings of the above intelligence reports, that the applicant had breached military discipline and that he should be discharged from the army. Subsequently, the Supreme Military Council based its decision on that opinion.
The relevant provisions of the Constitution are as follows:
“None of the rights and freedoms set forth in the Constitution may be exercised with the aim of undermining the territorial integrity of the State or the indivisible unity of its people, imperilling the existence of the Turkish State and the Republic, abolishing fundamental rights and freedoms, handing over control of the State to a single individual or group or bringing about the dominance of one social class over the others, establishing discrimination on the grounds of language, race, religion or adherence to a religious sect or setting up by any other means a State order based on such beliefs and opinions.”
“Everyone shall have the right to freedom of conscience, faith and religious belief. Prayers, worship and religious services shall be conducted freely, provided that they do not violate the provisions of Article 14. No one shall be compelled to participate in prayers, worship or religious services or to reveal his religious beliefs and convictions; nor shall he be censured or prosecuted because of his religious beliefs or convictions.
...
No one may exploit or abuse religion, religious feelings or things held sacred by religion in any manner whatsoever with a view to causing the social, economic, political or legal order of the State to be based on religious precepts, even if only in part, or for the purpose of securing political or personal influence thereby.”
“All acts or decisions of the administration are subject to judicial review ...
Decisions of the President of the Republic concerning matters within his sole jurisdiction and decisions of the Supreme Military Council shall not be subject to judicial review. ...”
Article 129 §§ 2, 3 and 4 of the Constitution provides that a disciplinary action cannot be imposed to the civil servants provided that that the right to defence is respected. Moreover, it lays out that the disciplinary actions, other that the warnings and the reprimands are subject to legal control. The provisions concerning the soldiers are reserved. Article 21 of Law on the Military Administrative High Court stipulates that the disciplinary actions imposed to the soldiers are not subject to legal control.
Section 22 (c) of the Military Legal Service Act provides:
“Irrespective of length of service, servicemen whose continued presence in the armed forces is adjudged to be inappropriate on account of breaches of discipline or immoral behaviour on one of the grounds set out below, as established in one or more documents drawn up during their service in the last military rank they held, shall be subject to the provisions of the Turkish Pensions Act.
...
Where their conduct and attitude reveal that they have adopted unlawful opinions.”
Section 50 (c) of the Military Personnel Act provides:
“Irrespective of length of service, servicemen whose continued presence in the armed forces is adjudged inappropriate on account of breaches of discipline and immoral behaviour shall be subject to the provisions of the Turkish Pensions Act. The Regulations for Military Personnel shall lay down which authorities have jurisdiction to commence proceedings, to examine, monitor and draw conclusions from personnel assessment files and to carry out any other act or formality in such proceedings. A decision of the Supreme Military Council is required to discharge an officer whose case has been submitted by the Chief of Staff to the Supreme Military Council.”
Section 94 (b) of the Military Personnel Act provides:
“(b) Discharge from the army for the acts of insubordination and immoral conduct:
Notwithstanding the seniority in the service, the non-commissioned officers whose maintenance is considered to be inappropriate for the acts of insubordination and immoral conduct are subject to Law on the Turkish Pension Fund. The investigation, examination and follow-up of the notation reports and the formalities and the competent authorities fulfilling these duties are subject to the provisions of The Regulations on assessment of officers and non-commissioned officers. The General Staff determines which non-commissioned officers’ cases concerning their discharge from the army should be examined by the Supreme Military Council.”
Article 99 of the Regulations on assessment of officers and non-commissioned officers provides:
“Irrespective of length of service, the compulsory retirement procedure shall be applied to all servicemen whose continued presence in the armed forces is adjudged to be inappropriate on account of breaches of discipline or immoral behaviour on one of the grounds set out below, as established in one or more documents drawn up during their service in the last military rank they held:
...
(e) where by his conduct and attitude the serviceman concerned has provided evidence that he holds unlawful, subversive, separatist, fundamentalist and ideological political opinions or takes an active part in the propagation of such opinions.”


ITEMID: 001-58586
LANGUAGEISOCODE: ENG
RESPONDENT: ROU
BRANCH: GRANDCHAMBER
DATE: 2000
DOCNAME: CASE OF ROTARU v. ROMANIA
IMPORTANCE: 1
CONCLUSION: Preliminary objection dismissed (victim);Preliminary objection dismissed (non-exhaustion);Violation of Art. 8;Violation of Art. 13;Violation of Art. 6-1;Non-pecuniary damage - financial award;Costs and expenses award - domestic proceedings;Costs and expenses award - Convention proceedings
JUDGES: Luzius Wildhaber
TEXT: 7. The applicant, who was born in 1921, was a lawyer by profession. He is now retired and lives in Bârlad.
8. In 1946, after the communist regime had been established, the applicant, who was then a student, was refused permission by the prefect of the county of Vaslui to publish two pamphlets, “Student Soul” (Suflet de student) and “Protests” (Proteste), on the ground that they expressed antigovernment sentiments.
9. Dissatisfied with that refusal, the applicant wrote two letters to the prefect in which he protested against the abolition of freedom of expression by the new people's regime. As a result of these letters, the applicant was arrested on 7 July 1948. On 20 September 1948 the Vaslui People's Court convicted the applicant on a charge of insulting behaviour and sentenced him to one year's imprisonment.
10. In 1989, after the communist regime had been overthrown, the new government caused Legislative Decree no. 118/1990 to be passed, which granted certain rights to those who had been persecuted by the communist regime and who had not engaged in Fascist activities (see paragraph 30 below).
11. On 30 July 1990 the applicant brought proceedings in the Bârlad Court of First Instance against the Ministry of the Interior, the Ministry of Defence and the Vaslui County Employment Department, seeking to have the prison sentence that had been imposed in the 1948 judgment taken into account in the calculation of his length of service at work. He also sought payment of the corresponding retirement entitlements.
12. The court gave judgment on 11 January 1993. Relying on, among other things, the statements of witnesses called by the applicant (P.P. and G.D.), the 1948 judgment and depositions from the University of Iaşi, it noted that between 1946 and 1949 the applicant had been persecuted on political grounds. It consequently allowed his application and awarded him the compensation provided for in Legislative Decree no. 118/1990.
13. As part of its defence in those proceedings, the Ministry of the Interior submitted to the court a letter of 19 December 1990 that it had received from the Romanian Intelligence Service (Serviciul Român de Informaţii – “the RIS”). The letter read as follows:
“In reply to your letter of 11 December 1990, here are the results of our checks on Aurel Rotaru, who lives in Bârlad:
(a) during his studies in the Faculty of Sciences at Iaşi University the aforementioned person was a member of the Christian Students' Association, a 'legionnaire' [legionar]-type[] movement.
(b) in 1946 he applied to the Vaslui censorship office for permission to publish two pamphlets entitled 'Student Soul' and 'Protests' but his request was turned down because of the anti-government sentiments expressed in them;
(c) he belonged to the youth section of the National Peasant Party, as appears from a statement he made in 1948;
(d) he has no criminal record and, contrary to what he maintains, was not imprisoned during the period he mentions;
(e) in 1946-48 he was summoned by the security services on several occasions because of his ideas and questioned about his views ...”
14. The applicant brought proceedings against the RIS, stating that he had never been a member of the Romanian legionnaire movement, that he had not been a student in the Faculty of Sciences at Iaşi University but in the Faculty of Law and that some of the other information provided by the RIS in its letter of 19 December 1990 was false and defamatory. Under the Civil Code provisions on liability in tort he claimed damages from the RIS for the non-pecuniary damage he had sustained. He also sought an order, without relying on any particular legal provision, that the RIS should amend or destroy the file containing the information on his supposed legionnaire past.
15. In a judgment of 6 January 1993 the Bucharest Court of First Instance dismissed the applicant's application on the ground that the statutory provisions on tortious liability did not make it possible to allow it.
16. The applicant appealed.
17. On 18 January 1994 the Bucharest County Court found that the information that the applicant had been a legionnaire was false. However, it dismissed the appeal on the ground that the RIS could not be held to have been negligent as it was merely the depositary of the impugned information, and that in the absence of negligence the rules on tortious liability did not apply. The court noted that the information had been gathered by the State's security services, which, when they were disbanded in 1949, had forwarded it to the Securitate (the State Security Department), which had in its turn forwarded it to the RIS in 1990.
18. On 15 December 1994 the Bucharest Court of Appeal dismissed an appeal by the applicant against the judgment of 18 January 1994 in the following terms:
“... the Court finds that the applicant's appeal is ill-founded. As the statutory depositary of the archives of the former State security services, the RIS in letter no. 705567/1990 forwarded to the Ministry of the Interior information concerning the applicant's activities while he was a university student, as set out by the State security services. It is therefore apparent that the judicial authorities have no jurisdiction to destroy or amend the information in the letter written by the RIS, which is merely the depositary of the former State security services' archives. In dismissing his application, the judicial authorities did not infringe either Article 1 of the Constitution or Article 3 of the Civil Code but stayed the proceedings in accordance with the jurisdictional rules laid down in the Code of Civil Procedure.”
19. On 13 June 1995 the applicant brought an action for damages against all the judges who had dismissed his application to have the file amended or destroyed. He based his action on Article 3 of the Civil Code, relating to denials of justice, and Article 6 of the Convention. According to the applicant, both the County Court and the Vaslui Court of Appeal refused to register his action.
In this connection, the applicant lodged a fresh application with the Commission on 5 August 1998, which was registered under file no. 46597/98 and is currently pending before the Court.
20. In June 1997 the Minister of Justice informed the Director of the RIS that the European Commission of Human Rights had declared the applicant's present application admissible. The Minister consequently asked the Director of the RIS to check once again whether the applicant had been a member of the legionnaire movement and, if that information proved to be false, to inform the applicant of the fact so that he could subsequently make use of it in any application for review.
21. On 6 July 1997 the Director of the RIS informed the Minister of Justice that the information in the letter of 19 December 1990 that the applicant had been a legionnaire had been found by consulting their archives, in which a table drawn up by the Iaşi security office had been discovered that mentioned, in entry 165, one Aurel Rotaru, a “science student, rank-and-file member of the Christian Students' Association, legionnaire”. The Director of the RIS mentioned that the table was dated 15 February 1937 and expressed the view that “since at that date Mr Rotaru was only 16, he could not have been a student in the Faculty of Sciences. [That being so,] we consider that there has been a regrettable mistake which led us to suppose that Mr Aurel Rotaru of Bârlad was the same person as the one who appears in that table as a member of a legionnaire-type organisation. Detailed checks made by our institution in the counties of Iaşi and Vaslui have not provided any other information to confirm that the two names refer to the same person.”
22. A copy of that letter was sent to the applicant, who on 25 July 1997 applied to the Bucharest Court of Appeal to review its decision of 15 December 1994. In his application he sought a declaration that the defamatory documents were null and void, damages in the amount of one leu in respect of non-pecuniary damage and reimbursement of all the costs and expenses incurred since the beginning of the proceedings, adjusted for inflation.
23. The RIS submitted that the application for review should be dismissed, holding that, in the light of the RIS Director's letter of 6 July 1997, the application had become devoid of purpose.
24. In a final decision of 25 November 1997 the Bucharest Court of Appeal quashed the decision of 15 December 1994 and allowed the applicant's action, in the following terms:
“It appears from letter no. 4173 of 5 July 1997 from the Romanian Intelligence Service ... that in the archives (shelf-mark 53172, vol. 796, p. 243) there is a table which lists the names of the members of legionnaire organisations who do not live in Iaşi, entry 165 of which contains the following: 'Rotaru Aurel – science student, rankand-file member of the Christian Students' Association, legionnaire'. Since the applicant was barely 16 when that table was drawn up, on 15 February 1937, and since he did not attend lectures in the Iaşi Faculty of Sciences, and since it appears from subsequent checks in the documents listing the names of the members of legionnaire organisations that the name 'Aurel Rotaru' does not seem to be connected with an individual living in Bârlad whose personal details correspond to those of the applicant, the Romanian Intelligence Service considers that a regrettable mistake has been made and that the person mentioned in the table is not the applicant.
Having regard to this letter, the Court holds that it satisfies the requirements of Article 322-5 of the Code of Civil Procedure as it is such as to completely alter the facts previously established. The document contains details which it was not possible to submit at any earlier stage in the proceedings for a reason beyond the applicant's control.
That being so, the date on which the Securitate was formed and the way in which the former security services were organised are not relevant factors. Similarly, the fact, albeit a true one, that the Romanian Intelligence Service is only the depositary of the archives of the former security services is irrelevant. What matters is the fact that letter no. 705567 of 19 December 1990 from the Romanian Intelligence Service (Military Unit no. 05007) contains details which do not relate to the applicant, so that the information in that letter is false in respect of him and, if maintained, would seriously injure his dignity and honour.
In the light of the foregoing and in accordance with the aforementioned statutory provision, the application for review is justified and must be allowed. It follows that the earlier decisions in this case must be quashed and that the applicant's action as lodged is allowed.”
25. The court did not make any order as to damages or costs.
26. The relevant provisions of the Constitution read as follows:
“(1) The constitutional provisions on citizens' rights and liberties shall be interpreted and applied in accordance with the Universal Declaration of Human Rights and with the covenants and other treaties to which Romania is a party.
(2) In the event of conflict between the covenants and treaties on fundamental human rights to which Romania is a party and domestic laws, the international instruments shall prevail.”
“(1) Anyone may apply to the courts for protection of his rights, liberties and legitimate interests.
(2) The exercise of this right shall not be restricted by any statute.”
27. The relevant provisions of the Civil Code are worded as follows:
“A judge who refuses to adjudicate, on the pretext that the law is silent, obscure or defective, may be prosecuted on a charge of denial of justice.”
“Any act committed by a person who causes damage to another shall render the person through whose fault the damage was caused liable to make reparation for it.”
“Everyone shall be liable for damage he has caused not only through his own act but also through his failure to act or his negligence.”
28. The relevant provision of the Code of Civil Procedure reads as follows:
“An application may be made for review of a final decision ... where written evidence which has been withheld by the opposing party or which it was not possible to submit for a reason beyond the parties' control is discovered after the decision has been delivered ...”
29. The relevant provisions of Decree no. 31 of 1954 on natural and legal persons are worded as follows:
“(1) Anyone whose right ... to honour, reputation ... or any other non-economic right has been infringed may apply to the courts for an injunction prohibiting the act which is infringing the aforementioned rights.
(2) Similarly, anyone who has been the victim of such an infringement of rights may ask the courts to order the person responsible for the unlawful act to carry out any measure regarded as necessary by the court in order to restore his rights.”
“If a person responsible for unlawful acts does not within the time allowed by the court perform what he has been enjoined to do in order to restore the right infringed, the court may sentence him to pay a periodic pecuniary penalty to the State ...”
30. At the material time, the relevant provisions of Legislative Decree no. 118/1990 read:
“The following periods shall be taken into account in determining seniority and shall count as such for the purpose of calculating retirement pension and any other rights derived from seniority: periods during which a person, after 6 March 1945, for political reasons –
(a) served a custodial sentence imposed in a final judicial decision or was detained pending trial for political offences;
...”
“A committee composed of a chairman and at most six other members shall be set up in each county ... in order to verify whether the requirements laid down in Article 1 have been satisfied ...
The chairman must be legally qualified. The committee shall include two representatives from the employment and social-welfare departments and a maximum of four representatives from the association of former political detainees and victims of the dictatorship.
...”
“The persons concerned may establish that they satisfy the conditions laid down in Article 1 by means of official documents issued by the relevant authorities or ... of any other material of evidential value.
...”
“The provisions of this decree shall not be applicable to persons who have been convicted of crimes against humanity or to those in respect of whom it has been established, by means of the procedure indicated in Articles 5 and 6, that they engaged in Fascist activities within a Fascist-type organisation.”
31. The relevant provisions of Law no. 14 of 24 February 1992 on the organisation and operation of the Romanian Intelligence Service, which was published in the Official Gazette on 3 March 1992, read as follows:
“The Romanian Intelligence Service shall organise and carry out all activities designed to gather, verify and utilise the information needed for discovering, preventing and frustrating any actions which, in the eyes of the law, threaten Romania's national security.”
“The Romanian Intelligence Service shall be authorised to hold and to make use of any appropriate resources in order to secure, verify, classify and store information affecting national security, as provided by law.”
“All internal documents of the Romanian Intelligence Service shall be secret, shall be kept in its own archives and may be consulted only with the consent of the Director as provided in law.
Documents, data and information belonging to the Romanian Intelligence Service shall not be made public until forty years after they have been archived.
The Romanian Intelligence Service shall, in order to keep and make use of them, take over all the national-security archives that belonged to the former intelligence services operating on Romanian territory.
The national-security archives of the former Securitate shall not be made public until forty years after the date of the passing of this Act.”
32. The relevant provisions of Law no. 187 of 20 October 1999, which came into force on 9 December 1999, are worded as follows:
“(1) All Romanian citizens, and all aliens who have obtained Romanian nationality since 1945, shall be entitled to inspect the files kept on them by the organs of the Securitate ... This right shall be exercisable on request and shall make it possible for the file itself to be inspected and copies to be made of any document in it or relating to its contents.
(2) Additionally, any person who is the subject of a file from which it appears that he or she was kept under surveillance by the Securitate shall be entitled, on request, to know the identity of the Securitate agents and collaborators who contributed documents to the file.
(3) Unless otherwise provided by law, the rights provided in subsections (1) and (2) shall be available to the surviving spouses and relatives up to the second degree inclusive of a deceased.”
“(1) In order to provide for a right of access to information of public interest, all Romanian citizens ..., the media, political parties ... shall be entitled to be informed ... if any of the persons occupying the following posts or seeking to do so have been agents or collaborators of the Securitate:
(a) the President of Romania;
(b) member of Parliament or of the Senate;
...”
“A National Council for the Study of the Archives of the Securitate ... (hereinafter 'the Council'), with its headquarters in Bucharest, shall be set up to apply the provisions of this Act.
The Council shall be an autonomous body with legal personality, subject to supervision by Parliament. ...”
“The Council shall consist of a college of eleven members.
The members of the college of the Council shall be appointed by Parliament, on a proposal by the parliamentary groups, according to the political composition of the two Chambers ... for a term of office of six years, renewable once.”
“(1) The beneficiaries of this Act may, in accordance with section 1(1), request the Council –
(a) to allow them to consult the files ... compiled by the Securitate up to 22 December 1989;
(b) to issue copies of ... these files ...;
(c) to issue certificates of membership or non-membership of the Securitate and of collaboration or non-collaboration with it;
...”
“(1) The content of certificates under section 13(1)(c) may be challenged before the college of the Council ...”
“(1) The right of access to information of public interest shall be exercisable by means of a request sent to the Council. ...
...
(4) In response to requests made under section 1, the Council shall verify the evidence at its disposal, of whatever form, and shall immediately issue a certificate ...”
“(1) Any beneficiary or person in respect of whom a check has been requested may challenge before the college of the Council a certificate issued under section 15. ...
The college's decision may be challenged ... in the Court of Appeal ...”
VIOLATED_ARTICLES: 13
6
8
VIOLATED_PARAGRAPHS: 6-1