The applicant is a Turkish national, born in 1969, and, at the time of the introduction of the application, was detained in the Netherlands. He is represented before the Court by Mr G.P. Hamer, a lawyer practising in Amsterdam.

On 17 February 1993, the applicant, an employee of the Netherlands Railway Company, was arrested and taken into detention on suspicion of embezzlement and of having been involved in a robbery committed on 24 October 1992 at the Amsterdam Central Station. On 12 May 1993, following the applicant’s appeal against a decision of 25 March 1993 prolonging his pre-trail detention, the Court of Appeal (Gerechtshof) of Amsterdam ordered the applicant’s release from pre-trial detention.

After an initial summons had been withdrawn, the applicant was summoned to appear on 15 December 1993 before the Regional Court (Arrondissementsrechtbank) of Amsterdam. The judges dealing with his case would be Ms O. as President, and Ms P. and Mr B.

On 25 November 1993, the applicant filed an objection (bezwaar) against the summons. On 15 December 1993, after having deliberated, the Regional Court sitting in chambers (Arrondissementsrechtbank in Raadkamer), composed of Ms O., Ms P. and Mr B., rejected the objection. Subsequently and on the same day, the Regional Court commenced its examination of the charges brought against the applicant.

As the composition of the Regional Court was the same as that of the Regional Court sitting in chambers that had rejected the objection against the summons, the defence challenged (wraking) the three judges. After having deliberated, three other judges of the Regional Court rejected the challenge. The Regional Court, in its original composition, then resumed its examination of the applicant’s case.

In the course of 15 December 1993, the Regional Court took a short break in order to hand down its judgment in the criminal proceedings that had been brought against the coaccused R.M. Sitting in the same composition as in the applicant’s case, the Regional Court convicted R.M. of the robbery committed on 24 October 1992.

After having become aware of this, the applicant challenged the Regional Court for a second time when later that day the court resumed its examination of his case. After having deliberated, three other judges of the Regional Court rejected the challenge. The Regional Court, in its initial composition, resumed its examination. It considered a request of the defence to take evidence from eleven witnesses, ordered that evidence should be taken from four of them and adjourned its further examination.

On 9 March 1994, the Regional Court heard evidence from the four witnesses whose appearance it had ordered on 15 December 1993 and heard the parties’ final pleadings.

In its judgment of 23 March 1994, the Regional Court convicted the applicant of robbery committed on 24 October 1992 at the Amsterdam Central Station, and participation in the commission of unlawful deprivation of liberty and embezzlement. The applicant filed an appeal with the Court of Appeal (Gerechtshof) of Amsterdam.

On 13 July 1994, the Court of Appeal started its examination of the applicant’s appeal. Further hearings were held on 9 November 1994 and 21 December 1995, in the course of which the Court of Appeal, inter alia, heard a number of witnesses.

In its judgment of 4 January 1996, the Court of Appeal quashed the judgment of 23 March 1994. On the basis of the full rehearing on both facts and law that had taken place before it, the Court of Appeal convicted the applicant of participation in a robbery and embezzlement, acquitted him of the remaining charges and sentenced him to four years’ imprisonment. It rejected the argument advanced by the defence that, given the composition of the Regional Court, the case should be referred back to the Regional Court as the Regional Court that had convicted the applicant could not be considered as an impartial tribunal in that the same judges had rejected the applicant’s objection against the summons and had already formed a view on the matter in that they had already convicted a co-accused. The applicant filed an appeal in cassation with the Supreme Court (Hoge Raad).

By judgment of 6 May 1997, the Supreme Court rejected the applicant’s appeal in cassation. It rejected the applicant’s arguments in relation to the alleged partiality of the Regional Court.


The applicant was born in 1968 and lives in the town of Cherkessk of the Karachayevo-Cherkessiya Republic.

According to the applicant, on 13 July 1997 the police instituted administrative proceedings against him for having disobeyed a lawful order of a police officer and arrested him. On the following day the Elista Town Court of the Kalmykiya Republic discontinued the proceedings because there was no indication of an administrative offence. The decision of the Town Court did not contain any reference to the applicant's alleged deprivation of liberty.

The applicant submitted that after the hearing the policemen brought him back to a police station. They handcuffed him to a heating device, put a plastic bag on his head and severely beat him up.

On 16 July 1997 an investigator of the Department of Internal Affairs of the Karachayevo-Cherkessiya Republic instituted criminal proceedings against the applicant and three other persons on suspicion of participation in a criminal enterprise and ordered their arrest. As it follows from a record of 16 July 1997, the applicant was arrested on the same day at 11.50 p.m. He was also charged with unlawful possession of a weapon.

On 30 December 1998 the Cherkessk Town Court acquitted the applicant and ordered his immediate release. The judgment became final on 2 February 1999 when it was upheld by the Supreme Court of the Karachayevo-Cherkessiya Republic.

In August 2000 the applicant lodged an action against the Treasury and the Ministry of Internal Affairs of the Russian Federation for compensation for non-pecuniary damage incurred through unlawful detention.

On 11 March 2001 the Cherkessk Town Court accepted the applicant's action and ordered that the Ministry of Internal Affairs should pay the applicant 190,000 Russian roubles (RUR, 7,095 euros) at the expense of the Treasury. The Town Court held as follows:

“Mr Volkov was unlawfully detained from 16 July 1997 to 30 December 1998, that is for a total of 535 days.

It was proven at the court hearing that Mr Volkov sustained non-pecuniary damage and it should be compensated because he was acquitted by a final judgment.

According to paragraph 8 of the Decree of the Plenary Supreme Court of the Russian Federation no. 10 of 20 December 1994 'On certain questions concerning application of the domestic law on compensation for non-pecuniary damage'... the amount of compensation depends on the character and extent of moral and physical suffering caused to the plaintiff, fault of the defendant in each particular case, and other circumstances which merit attention...

The court ... takes into account that the amount and extent of moral and physical suffering of a person depend on his subjective perception of the existing situation and considers that, having regard to the arguments and evidence submitted by the parties, it is possible to award the plaintiff 190,000 roubles in compensation for non-pecuniary damage.

Assessing the moral sufferings caused to the plaintiff, possible consequences of the plaintiff's conviction, and having examined the materials of the criminal case-file, the court considers that the awarded amount is reasonable and fair.”

The judgment of 11 March 2001 was not appealed against and became final.

On an unspecified date the President of the Supreme Court of the Karachayevo-Cherkessiya Republic lodged before the Presidium of the Supreme Court an application for a supervisory review of the judgment of 11 March 2001 because the Town Court should have issued the judgment directly against the Treasury and should have excluded the Ministry of Internal Affairs from the proceedings.

On 8 August 2001 the Presidium of the Supreme Court of the Karachaevo-Cherkessiya Republic, by way of supervisory-review proceedings, quashed the judgment of 11 March 2001 and remitted the case for a fresh examination. The Presidium noted that the Town Court had incorrectly assessed the amount of compensation and that it should have joined the Treasury as defendant to the proceedings.

On 27 September 2001 the Cherkessk Town Court found that the applicant's detention had been unlawful but reduced compensation to RUR 5,000 (EUR 184). The reasoning in the judgment of 27 September 2001 repeated word by word that of the judgment of 11 March 2001, save for the amount in the penultimate paragraph where 190,000 was replaced with 5,000. The judgment of 27 September 2001 was upheld on appeal on 16 October 2001.


Government's request to strike the application out rejected;Remainder inadmissible;Violation of Art. 6-1;Violation of Art. 13;Non-pecuniary damage - award

David Thór Björgvinsson;Ján Šikuta;Lech Garlicki;Nicolas Bratza;Päivi Hirvelä;Stanislav Pavlovschi

The applicant was born in 1950 and lives in Poznań.

On 17 June 1999 the Gdańsk District Court (Sąd Rejonowy) remanded the applicant in custody for three months on three counts of armed robbery. It considered that that measure was indispensable in order to secure the proper conduct of the proceedings, having regard to the serious nature of the offences in question and the likelihood of a custodial sentence.

The first hearing took place on 28 December 2001. Since that date almost 180 hearings have been scheduled and nearly 400 witnesses heard. Many hearings have been adjourned.

On 21 September 2005 the court decided that, because of the lengthy illness of a judge rapporteur, a new bench should be appointed. This meant that the proceedings had to be restarted.

On 24 November 2005 the Gdańsk Regional Court (Sąd Okręgowy) severed the bill of indictment and ordered that cases against fifteen other coaccused be tried in separate proceedings.

The proceedings are still pending.

On 30 January 2006 the applicant lodged a complaint about the undue length of the criminal proceedings under section 5 of 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”) and requested just satisfaction of PLN 10,000.

On 23 March 2006 the Gdańsk Court of Appeal (Sąd Apelacyjny) dismissed his complaint on the ground that since the date of entry into force of the 2004 Act no undue delays in the proceedings could be discerned, the proceedings having been conducted with due diligence and within a reasonable time. The court observed that the 2004 Act had entered into force on 17 September 2004 and could not be applied to the proceedings before that date.

The relevant domestic law and practice concerning remedies for the excessive length of judicial proceedings, in particular the applicable provisions of the 2004 Act, are stated in the Court’s decisions in the cases of Charzyński v. Poland no. 15212/03 (dec.), §§ 12-23, ECHR 2005-V and Ratajczyk v. Poland no. 11215/02 (dec.), ECHR 2005-VIII and the judgment in the case of Krasuski v. Poland, no. 61444/00, §§ 34-46, ECHR 2005-V.


CASE OF EERIKAINEN AND OTHERS  v. FINLAND

Violation of Art. 10;Pecuniary and non-pecuniary damage - award

Giovanni Bonello;Lech Garlicki;Ledi Bianku;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä

The first applicant was born in 1946 and lives in Kauvatsa. The second applicant was born in 1942 and was resident in Härmä at the time of his death.

The first applicant is a freelance journalist. In 1997 he wrote an article about criminal proceedings which were then pending before the Turunseutu District Court (käräjäoikeus, tingsrätten). Those proceedings were public in nature. A defendant, X, was charged with various counts of tax fraud and aggravated fraud for allegedly deceiving the Social Insurance Institution (kansaneläkelaitos, folkpensionsanstalten) and insurance companies. The article was published in issue no. 6/1997 of the magazine Alibi, and entitled: “It seemed legal, but... a woman entrepreneur cheated to obtain a pension of over 2 million marks?” (In Finnish: Näytti lailliselta, mutta... yrittäjärouva huijasi yli 2 miljoonan eläkkeen?). The article did not mention X’s name. In the magazine’s table of contents, however, her first name was mentioned. The article included a reproduction of an article which had been published eight years previously with two photographs of X. That article, written by the first applicant, had been published in another magazine and mentioned X’s full name and included two photographs of her, one taken inside her home and another in her garden. The article was about a house purchased by the applicant which turned out to be full of rising damp. This situation naturally made her extremely miserable as she had spent her money on an uninhabitable house.

In September 1997 X lodged a criminal complaint, and proceedings were instituted against the applicants. On 18 December 1997, however, the Espoo District Court dismissed the charges. X appealed to the Helsinki Court of Appeal (hovioikeus, hovrätten), which upheld the judgment on 1 April 1999. X was ordered to reimburse the applicants’ legal costs.

Subsequently, X brought civil proceedings against the applicants before the Espoo District Court. She claimed that the said article had incriminated and insulted her and, in the alternative, that her picture had been published without her consent, causing her mental suffering. She requested compensation for non-pecuniary damage amounting to 250,000 Finnish marks (FIM) (approximately 42,047 euros (EUR)). In the alternative, she claimed compensation for the publication of her picture and non-pecuniary damages amounting to FIM 125,000 (EUR 21,023). She also claimed pecuniary damages amounting to FIM 29,234 (EUR 4,917). In a hearing before the court she claimed that publication of the article and photograph had amounted to an invasion of her privacy.

In its judgment of 31 March 1998 the District Court found that, given that X had been only a suspect at the time and the criminal case against her had still been pending, it had been wrongly alleged in the table of contents and in the headline of the article that she had obtained pension payments by fraud. The case thus amounted to defamation, as set out in Chapter 27 of the Penal Code (rikoslaki, strafflagen). The court found that other parts of the article were not defamatory. Under the Tort Liability Act (vahingonkorvauslaki, skadeståndslagen; Act no. 412/1974), the court ordered the applicants jointly and severally to pay X FIM 80,000 (EUR 13,455) for non-pecuniary damage and FIM 27,554 (EUR 4,634) for pecuniary damage, and to pay her legal costs. Finally, it found that, having regard to the above, there was no need to adjudicate on her second claim.

The applicants appealed to the Helsinki Court of Appeal, asserting their right to freedom of expression. X also appealed, requesting that the amount of damages be increased.

On 8 December 1999, without holding an oral hearing, the appellate court quashed the judgment, reasoning, inter alia, that:

“... It was clear from the text of the article that it concerned a pending public trial. X’s identity was not revealed in the headline, thus she could not be assumed to be guilty of an offence only by reading the headline. Neither was her identity disclosed in the table of contents; to identify her required reading through the article. The text of the article is not defamatory or slanderous on the grounds set out in the District Court’s judgment. Publishing an article about charges brought before a public trial is justified, even though it might cause suffering for the accused. The act did not amount to defamation ...

... the crimes allegedly committed cannot be regarded as minor, taking into account their extent, effects and social importance. An article about this kind of case, and the publication of a photo from which [X] could have been identified, is not a violation of her privacy.”

X applied for leave to appeal to the Supreme Court (korkein oikeus, högsta domstolen).

On 21 November 2000 the Supreme Court granted leave to appeal. On 26 September 2001 it issued its judgment, which became a precedent (KKO 2001:96). The Supreme Court ruled that, in line with the grounds of the Court of Appeal’s judgment, the applicants were not guilty of defamation. It found, however, that by attaching the said illustration (in Finnish: kuvitus; that is by reproducing the old article which included X’s name and photographs), the applicants had violated her right to privacy, and ordered them jointly to pay FIM 20,000 (EUR 3,364) for non-pecuniary damage together with interest from the service of the summonses in 1997 and to reimburse her legal costs. The court reasoned, inter alia, that:

On the grounds mentioned in the Court of Appeal’s judgment, the Supreme Court considers that [the first and the second applicants] have not committed an act of defamation within the meaning of Chapter 27, Article 1 or 2 of the Penal Code as in force at the time of the act. [see paragraph 13 above]

The question thus raised by this case is whether [the first and the second applicants] without a legal right through the use of a mass medium or in another similar manner have publicly spread information, an insinuation or an image depicting the private life of [X] which has been conducive to causing her damage or suffering and are thereby guilty of invasion of privacy within the meaning of Chapter 27, Article 3a, of the Penal Code as in force at the time of the publishing of the article.

According to this provision of law, making public [an article that discusses] a person’s actions in public office or function, in business life, in a political or other comparable activity, is not to be considered an invasion of privacy if the reporting is necessary to address a matter of social importance. As noted in the travaux préparatoires (HE no. 84/1997 vp ...) this is relevant chiefly in domains where decision-making takes place or in which the circumstances in reality may affect the every-day life of several persons or which have relevance of principle. According to the travaux préparatoires, such domains are first and foremost the attendance to a public office or function, business life and political activity. According to the said provision, what is essential is whether there is a significant social need to discuss the acts of the person concerned by making public facts which would otherwise belong to the sphere protected by the right to respect for private life.

The criminal case, which has been the object of the article published in the Alibi magazine, has concerned, inter alia, the question whether [X] in order to obtain an unlawful financial benefit, by concealing that she received her livelihood as an entrepreneur, had misled the Social Insurance Institution and the insurance companies to grant her a disability pension thereby causing them economic loss. The acts mentioned in the charge related to [X’s] actions as an entrepreneur in a relatively small cleaning firm. Although the criminal case concerned substantial financial benefits, it was not a case which, viewed on its own, was of such general public interest that there would have been grounds to reproduce, as part of an article and without [X’s] consent, another article that included her name and photograph. Although the underlying purpose of the article might have been to draw attention to the abuse of social benefits in general by using an individual case and thus to a negative social phenomenon, it was not necessary or justified to publish without authorisation an illustration revealing the identity of an individual private person charged with or convicted of such an offence and in a similar position to [X].

Thus, [the first applicant], who wrote the article in question and intentionally used as an illustration the afore-mentioned earlier published article written by him and the photograph of X in that connection, and [the second applicant], who in his capacity as the magazine’s editor-in-chief approved the publication of the article, have through their acts without a legal right by the use of a mass medium publicly spread information, an insinuation or photograph depicting the private life of [X] which was conducive to causing her damage or suffering.

Whether or not the fact that [X] was recognisable was due to a mistake or other technical factor when the magazine was printed has no relevance in the legal assessment of the acts of [the first and the second applicants] since the article in question together with its illustration has been made public without seeing to and making sure that the typography of the article did not disclose [X’s] identity.”

Meanwhile, on 8 May 2000 the Turunseutu District Court convicted X of, inter alia, five offences of tax fraud and two offences of aggravated fraud and sentenced her to an immediate term of one year and ten months’ imprisonment. She was also ordered to pay damages.

On 28 June 2002 the Turku Court of Appeal upheld X’s conviction for, inter alia, tax fraud, aggravated fraud and fraud, without amending the sentence.

Section 10 (as amended by Act no. 969/1995, which took effect on 1 August 1995 and remained in force until 1 March 2000) of the Constitution Act (Suomen Hallitusmuoto, Regeringsform för Finland, Act no. 94/1919), provided:

“Everyone has the right to freedom of expression. The right to freedom of expression entails the right to impart, publish and receive information, opinions and other communications without prior hindrance from anyone. More precise provisions on the exercise of the right to freedom of expression shall be prescribed by an Act of Parliament. Restrictions on pictorial programmes necessary for the protection of children may be prescribed by an Act of Parliament.

Documents and recordings in the possession of the authorities are public, unless their publication has, for compelling reasons, been specifically restricted by an Act. Everyone has the right of access to public documents and recordings.”

The same provision appears in Article 12 of the current Constitution of 2000 (Act no. 731/1999).

Section 8 of the Constitution Act (as amended by Act no. 969/1995) corresponded to Article 10 of the current Constitution, which provides that everyone’s right to private life is guaranteed.

Section 39 of the Freedom of the Press Act (painovapauslaki, tryckfrihetslagen; Act no. 1/1919), as in force at the relevant time, provided that the provisions of the Tort Liability Act applied to the payment of compensation for damage caused by the contents of printed material.

Chapter 5, section 6, of the Tort Liability Act stipulates that damages may also be awarded for distress arising from an offence against liberty, honour or domestic harmony or from another comparable offence. Under Chapter 5, section 1, of the said Act, damages shall constitute compensation for personal injury and damage to property. Section 2 provides that a person who has suffered personal injury shall be entitled to damages to cover medical costs and other costs arising from the injury, as well as loss of income and maintenance and pain and suffering.

Chapter 27, Article 3a, of the Penal Code, as in force at the relevant time, provided that a person who unlawfully, through the use of the mass media or in another similar manner, publicly spread information, an insinuation or an image depicting the private life of another person which was liable to cause him or her damage or suffering, should be convicted of invasion of privacy and sentenced to a maximum term of two years’ imprisonment or to a fine. A publication that discussed a person’s behaviour in public office or function, in professional life, in a political or other comparable activity, was not to be considered an invasion of privacy if the reporting was necessary to address a matter of social importance.

In 2000, Chapter 27, Article 3a, of the Penal Code was replaced by Chapter 24, Article 8 (Act no. 531/2000). Under the new provision on the injury of personal reputation (yksityiselämää loukkaavan tiedon levittäminen, spridande av information som kränker privatlivet), a person who unlawfully, through the use of the mass media or in another manner, publicly spreads information, an insinuation or an image of the private life of another person in such a way that the act is conducive to causing that person damage or suffering or subjecting that person to contempt, shall be convicted of injuring personal reputation. However, an act shall not constitute an injury to personal reputation if it concerns the evaluation of that person’s activities in a professional or public capacity and if it is necessary for the purpose of addressing a matter of importance to society. According to the Parliamentary Law Committee’s 2000 Report (lakivaliokunta, lagutskottet; LaVM 6/2000), the purpose of that provision is to permit the dissemination of information on the private life of such persons if the information may be relevant in assessing the performance of their functions.

Section 2 of the Public Nature of Court Proceedings Act (laki oikeudenkäynnin julkisuudesta, lag om offentlighet vid rättegång; Act no. 945/1984), as in force at the relevant time, provided that the name, profession and domicile of the parties and the nature of the subject matter and the time and place of a hearing were public information from the beginning of the trial at the latest. Section 3 provided that the public had the right to be present during hearings unless otherwise provided in the relevant legislation. Section 9 stated that the provisions laid down in the Openness of Government Activities Act (laki viranomaisten toiminnan julkisuudesta, lag om offentlighet i myndigheternas verksamhet: Act no. 621/1999) were applicable to trial documents. Information and documents relating to a trial are, as a rule, public once charges have been brought unless provided otherwise by an Act.

In a Supreme Court decision (KKO 1980 II 123) the following was noted (summary from the Yearbook):

“The accused had picked up a photograph of the plaintiff from the archives of a newspaper and published it in the context of an electoral campaign without the plaintiff’s consent. He was convicted of a violation of private life and ordered, jointly with the political organisations which had acted as publishers, to pay damages for mental suffering.”

In June 1997 the Supreme Court delivered two decisions relating to articles which had given information on cases of arson. The first decision (KKO 1997:80) concerned a newspaper article (summary from the Supreme Court’s Yearbook):

“A newspaper published an article concerning cases of arson, in which it was said that the suspect was the wife of the head of a local fire department. As it was not even alleged that the head of the fire department had any role in the events, there was no justifiable reason for publishing the information on the marriage between him and the suspect. The publisher, the editor-in-chief and the journalist who wrote the article were ordered to pay compensation for the suffering caused by the violation of the right to respect for private life.”

The second decision (KKO 1997:81) concerned an article published in a periodical, which was based on the afore-mentioned newspaper article (see the previous paragraph) and on the records of the pre-trial investigation and the court proceedings, but did not indicate that the newspaper article had been used as a source (summary from the Yearbook):

“Compensation was ordered to be paid for the reason that the article violated the right to respect for private life. Another issue at stake in the precedent was the relevance to liability for damages and the amount of compensation in view of the fact that the information had been reported in another publication at an earlier stage.”

The article published in the periodical had also mentioned the name and profession of the head of the fire department, although the offence was not related to the performance of his duties. Thus, it had not been necessary to refer to his position as head of the fire department or to his marriage to the suspect in order to give an account of the offence. The fact that the information had previously been published in print did not relieve the defendants of their responsibility to ensure, before publishing the information again, that the article did not contain information insulting the persons mentioned in it. The mere fact that the interview with the head of the fire department had been published in the newspaper did not justify the conclusion that he had also consented to its publication in the periodical. Repeating a violation did not necessarily cause the same amount of damage and suffering as the initial violation. The readers of the newspaper and the periodical were partly different, and the circulation of the newspaper apparently did not entirely coincide with that of the periodical. Therefore, and considering the differences in the content and tone of the articles, the Supreme Court found it established that the article published in the periodical was conducive to causing the head of the fire department additional mental suffering. The events reported in the article did not concern the plaintiff’s conduct in the performance of his duties as head of the fire department and it had not been necessary to mention the complainant’s name and profession for the purpose of discussing a matter involving significant public interest or reporting on the offences. By associating the complainant’s name and profession with the offences in question, the article had unlawfully spread information and insinuations concerning his private life likely to cause him damage and suffering. The disclosure of the complainant’s name and the emphasis on his occupation had amounted to an insult. By again reporting on the matter two months after the events had occurred, the periodical was found to have caused the complainant additional suffering for which separate compensation was to be paid.

The Supreme Court’s decision of 25 June 2002 (KKO 2002:55) concerned the broadcasting of the name of a woman who, together with a person in a public position, had been a party to an assault. The court found that the facts discussed in the television programme with regard to the woman were part of her private life and enjoyed the protection of privacy. The fines imposed on her as punishment for the assault did not constitute a criminal-law sanction justifying publication of her name.

Another decision of 4 July 2005 (KKO 2005:82) concerned an article about a relationship between A, who worked as a press officer for a candidate in the presidential elections, and B, the ex-spouse of a TV journalist. A’s photo was included in the article. The Supreme Court, having assessed the provision on the invasion of privacy in the Penal Code in the light of this Court’s case-law, found that A did not hold a position that meant that such details of her private life were of public importance. The article had thus invaded A’s privacy.

In a decision of 19 December 2005 (KKO 2005:136), the Supreme Court noted that an offence is not a private matter of the offender. In principle, however, a person convicted of and sentenced for having committed an offence also enjoys the right inherent in private life to live in peace. According to the Personal Data Act, any information about the commission of an offence and the resulting sentence qualifies as “sensitive” personal data. The publicity per se of criminal proceedings and of related documents does not mean that information made public during the proceedings can be freely published as such by the media. The Supreme Court concluded that publishing the name of a person convicted of, inter alia, assault and deprivation of liberty did not invade his privacy as the person concerned had been convicted of offences of violence which had also degraded the victim’s human dignity. Furthermore, the impugned article did not include his photo.

The Union of Journalists in Finland (Suomen Journalistiliitto, Finlands Journalistförbund ry) publishes Guidelines for Journalists (Journalistin ohjeet, Journalistreglerna) for the purposes of self-regulation. The 1992 Guidelines were in force at the material time and provided, inter alia, that the publication of a name and other identifying information in the context of reporting on offences was justified only if a significant public interest was involved. The suspect’s identity was not usually to be published before a court hearing unless there were important reasons relating to the nature of the offence and the suspect’s position which justified publication (Article 26).

New Guidelines came into force in 2005, which noted that when publishing public material regard must be had to the protection of private life. The public nature of information does not necessarily mean that it may be published. Special care must be observed when discussing matters concerning a minor (Article 30). The name, photograph or other identifying facts of a convicted criminal may be published unless it is considered unjust in terms of his/her position or offence. As regards a minor or an unaccountable person information should be disclosed with restrain (Article 31). A journalist must be careful not to present information that may lead to the identification of a person in cases where he/she is only a suspect or has merely been charged (Article 32).

On 10 July 2003 the Committee of Ministers of the Council of Europe adopted Recommendation No. Rec(2003)13 on the provision of information through the media in relation to criminal proceedings. In point 8 of the principles appended to the recommendation, it considers as follows:

“Protection of privacy in the context of on-going criminal proceedings

The provision of information about suspects, accused or convicted persons or other parties to criminal proceedings should respect their right to protection of privacy in accordance with Article 8 of the Convention. Particular protection should be given to parties who are minors or other vulnerable persons, as well as to victims, to witnesses and to the families of suspects, accused and convicted. In all cases, particular consideration should be given to the harmful effect which the disclosure of information enabling their identification may have on the persons referred to in this Principle.”

The commentary to the recommendation considers as follows (paragraphs 26 and 27):

“Everyone has the right to the protection of private and family life under Article 8 of the European Convention on Human Rights. Principle 8 recalls this protection for suspects, the accused, convicted persons and other parties to criminal proceedings, who must not be denied this right due to their involvement in such proceedings. The mere indication of the name of the accused or convicted may constitute a sanction which is more severe than the penal sanction delivered by the criminal court. It furthermore may prejudice the reintegration into society of the person concerned. The same applies to the image of the accused or convicted. Therefore, particular consideration should be given to the harmful effect which the disclosure of information enabling their identification may have on the persons referred to in this Principle.

An even stronger protection is recommended to parties who are minors, to victims of criminal offences, to witnesses and to the families of suspects, the accused and convicted persons. In this respect, member states may also refer to Recommendation No. R (85) 11 on the position of the victim in the framework of criminal law and procedure and Recommendation No. R (97) 13 concerning the intimidation of witnesses and the rights of the defence.”

The European Federation of Journalists submitted the following.

In France and Spain, there is no restriction on publishing pictures of persons subject to pending criminal proceedings, provided that the journalist, according to generally accepted procedure, clearly and explicitly mentions that the person has not yet been found guilty.

In Belgium, there is no restriction on pub1ishing the photograph of a person accused of a crime, unless the person himself/herself or the court explicitly expresses his or her wish not to be photographed or not to be published. In practice, publication of names and photos happens daily, with the clear mention that the person is suspected but not guilty. The Declaration of Duties and Rights of Journalists and the Code of Conduct of Journalism also impose an obligation to check the information, to respect privacy, and to correct false information if necessary.

Article 8 of the German Press Code provides that the press must respect the private life and intimate sphere of persons. If, however, the private behaviour of a person touches upon public interests, then it may be reported on in individual cases. Care must be taken to ensure that the privacy rights of uninvolved persons are not violated. The press must respect a person’s right to self-determination concerning information about them and guarantee editorial data protection.

The United Kingdom Code of Conduct sets out the basic principles of responsible independent journalism and has been the model for numerous other journalist codes. It states, among other things, that a journalist shall strive to ensure that information disseminated is honestly conveyed, accurate and fair and does nothing to intrude into a person’s private life, grief or distress unless justified by overriding public interest considerations. In addition, the Code of Practice of the Press Complaints Commission states that, in reporting on crime, relatives or friends of persons convicted or accused of crime should not generally be identified without their consent, unless they are genuinely relevant to the story.

There is no hard and fast rule in the Finnish Guidelines for Journalists. The 2005 Guidelines urge caution and judgment, especially when a case is only at the accusation stage. However, a public figure is less protected than an ordinary person. A politician or a business leader accused of an offence can be identified for a less serious crime. The gravity of the crime is also an obvious relevant factor. The central question is who is a public figure. There have been cases where spouses, girlfriends or boyfriends of public figures have argued that they were not, and won their case in court. Recently following a school massacre the Minister of the Interior disclosed the name of the killer in a live televised press conference, a few hours after the incident. The police also recently published the name and picture of a man accused of (and later convicted of) spreading HIV, as well as the names and pictures of two escaped convicts. The basis of the decision was public security. Many companies have their own code of conduct. According to most of the companies the name of a convicted person can be published if the sentence is two years or more in prison, that is, where the crime is serious. But this is usually restricted if publishing the name may disclose the identity of the victim (child abuse cases, for example,) or if the person convicted is a minor.


The applicant, Savvas Kyriakides, is a Cypriot national, born in 1965 and living in Nicosia. He is represented before the Court by Mr E. Pourgourides, a lawyer practising in Limassol.

The facts of the case, as submitted by the parties, may be summarised as follows.

The applicant is the Managing Director of the company Stellios Kyriakides Trading Ltd and in that capacity he obtained a number of loans from Dr Neophytou. Each time a loan was agreed, both parties entered into a written agreement which provided that the loan would become payable to Dr Neophytou with 7% interest at the end of 60 days. Each time the applicant received a loan, he issued a personal post-dated cheque in Dr Neophytou’s favour for the sum due at the end of the 60 days period. The amount included both the capital and the interest. When the various cheques became payable, Dr Neophytou did not cash them, but instead, entered into new agreements with the applicant whereby the sums due were referred to as “capital loaned”, again attracting 7% interest. The old agreements and cheques were cancelled by the new agreements.

In the summer of 1995, the parties decided to merge the numerous agreements and, when all sums fell due, they were added together to form the basis of two further agreements: the first, dated 23 July 1995, showed the capital at 30 000 Cypriot pounds (CYP). The second, dated 19 August 1995, showed the capital at 32 000 CYP. The new agreements provided for the reimbursement of the capital, plus interest at 7%, at the end of 60 days and were supported by two new post-dated personal cheques of the applicant. These cheques were presented to the applicant’s bank and were both dishonoured. On 31 May 1996, Dr Neophytou filed a private prosecution before the District Court of Nicosia against the applicant pursuant to Section 305(A)1 of the Cyprus Criminal Code.

At the material time in 1995, a criminal offence was deemed to have been committed under Section 305(A)1 where a cheque was dishonoured due to a lack of funds in the drawer’s bank account. Subsection 3 of the same Section provided that no offence was committed if the bearer of the cheque had no “actionable right” against the drawer.

On 26 November 1997 the District Court of Nicosia acquitted the applicant. In particular, it accepted the applicant’s argument that subsection 3 of Section 305(A) applied in the case since the agreements under which the cheques were issued were illegal under Cypriot law (Sections 3 and 5 of Law 2/77 and Sections 23 and 24 of the Contract Law Cap.149). In fact, Dr Neophytou had charged interest above the 9% per year allowed by law, namely 42% (7% every 60 days). This being so, Dr Neophytou had no right of action against the applicant.

On 2 December 1997 Dr Neophytou appealed to the Supreme Court. On 8 March 1999 the Supreme Court quashed the judgment of the District Court and convicted the applicant, sentencing him to three months’ imprisonment. The Supreme Court held that the District Court had misinterpreted Section 305(A)3. According to the Supreme Court, the correct meaning of that provision was that “the cheque must have the necessary characteristics of a cheque as these are referred to in the Bills of Exchange Law”, “the complainant must be the legal bearer of the cheque” and the trial court should not have examined the civil aspect of the agreement between the parties which led to the issue of the post-dated cheques.

Following that decision, Parliament passed a retroactive amendment to Section 305(A), which came into force on 30 April 1999. The amendment provided that Section 305(A) did not apply to any cheques which were issued under an illegal transaction. Furthermore, it provided that the amending Law was to apply to all pending cases.

Since the applicant’s case was still pending, as regards the imposition of sentence, the issue was raised before the Supreme Court on 17 May 1999. The applicant applied for a halt to the judgment, pursuant to Section 79 of the Criminal Procedure Law Cap.155. On 1 June 1999 the Supreme Court held that the amending law did not apply to the applicant’s case.

The applicant served 56 days of the sentence and was released after a pardon.

Section 305(A)1 of the Criminal Code provides that a person is guilty of a criminal offence carrying a sentence of imprisonment not exceeding six months, if he draws a cheque, which on being presented to the issuing bank within a reasonable time from the date on which it becomes payable, it is not discharged owing to the lack of available funds of its drawer and the latter fails to discharge payment within fifteen days as from the time he acquires knowledge of that fact.

Section 305(A)3 states that the provisions of Section 305(A)1 are not applicable with regard to any cheque on which no actionable right ensues against its drawer.

Section 25(1) of the Contract Law Cap.149 provides that “an agreement made without consideration is void...”. In the case of Loizou v. Republic of Cyprus (Supreme Court, judgment of 24 June 1994), the defendant raised before the first instance court the defence of Section 305(A)3, claiming inter alia that the complainant had no right of action against him because the agreement under which the cheque was issued was made without consideration. The court examined the contract between the parties and decided that, on the facts of the case, consideration was given and therefore the contract between the parties was valid and enforceable, giving rise to a right of action. Consequently, the defence failed and the defendant was convicted. The same question was raised on appeal and the Supreme Court found that the first instance court examined this matter extensively and that it correctly concluded that consideration was given for the issuing of the relevant cheque. After referring to the facts relating to this matter the Supreme Court added the following: “We also note that the relevant provision refers to an “actionable right”, and not to a good basis or arguable action. We are therefore of the view that the judgment of the first instance court is impeccable and the appeal against conviction is rejected”.

Section 62 of the Contract Law Cap.149 provides that “if the parties to a contract agree to substitute a new contract for it or to rescind or alter it, the original contract need not be performed”. In the case of Ergatides Motors Ltd and Georgios Ergatides v. the Police (Supreme Court, judgment of 19 June 1997), the defendant claimed under Section 305(A)3 that the contract under which the cheque was issued had been rescinded and that the parties had entered into a new contract. He contended that since the cheque was issued under the first contract which was rendered unenforceable by virtue of the new one, no right of action existed against him under the former. The Supreme Court examined the first contract and, having found that it was indeed rescinded and replaced, upheld the defence under Section 305(A)3 and acquitted the defendant. No right of action existed under the first contract.


Remainder inadmissible;Violation of Art. 3 (substantive aspect);Violation of Art. 5-1;Violation of Art. 5-3;Violation of Art. 5-4;Violation of Art. 13;Non-pecuniary damage - award

Angelika Nußberger;Dean Spielmann;Elisabet Fura;Ganna Yudkivska;Karel Jungwiert;Mark Villiger

The applicant was born in 1976 and lives in Yevpatoriya.

On 25 February 2004 the applicant was arrested by the police on suspicion of drug dealing. On the same date a sachet of poppy straw was seized from his pocket.

On the same date the applicant complained to the Yevpatoriya Prosecutors’ Office that he had been ill-treated during his arrest, in particular that he had been handcuffed, beaten and blinded with a dark knitted hat and that he had suffered abrasions on his hands, face and back as a result of having been ill-treated.

On 16 March 2004 the Prosecutors’ Office refused to institute criminal proceedings into the applicant’s complaints, having found no appearance of criminal conduct on the part of the police officers.

On 13 April 2004 the Prosecutors’ Office of the ARC revoked this decision and ordered a further inquiry. Having examined available evidence and questioned witnesses, on 15 May 2004 the Yevpatoriya Prosecutors’ Office again refused to institute criminal proceedings for want of evidence of any ill-treatment. Based on the available materials, the applicant did not appeal against this decision.

On an unspecified date the applicant also complained to the Yevpatoriya Court that his detention had been unlawful. On 24 March 2004 the Yevpatoriya Court dismissed this complaint, attaching weight to the fact that on 27 February 2004 the lawfulness of the applicant’s detention was verified by a judge within the statutory seventy-two-hour time-limit. On 18 May 2004 the Court of Appeal of the Crimea upheld this decision.

On 25 February 2004 criminal proceedings were instituted against the applicant on suspicion of drug dealing and following his arrest he was detained in a police station.

On 27 February 2004 the applicant was brought before the Yevpatoriya Court, which allowed the investigator’s request to continue his detention for ten days pending a determination of whether he should be charged. The court referred to the fact that the applicant was suspected of having committed a serious offence and that a sachet of poppy straw had been found on him.

On 3 March 2004 the applicant was indicted for drug dealing.

On 5 March 2004 the Yevpatoriya Court decided, in the applicant’s presence, that he should be remanded in custody for two months pending the outcome of the pre-trial investigation. By way of reasoning, the court cited Article 148 of the Code of Criminal Procedure and noted that the applicant might abscond, as he had been charged with a serious offence, and also that he might tamper with evidence. Moreover, the court noted that the applicant was alleged to have committed the offence while he had been subject to an undertaking not to abscond in connection with an investigation for another unspecified offence, which, at the material time, had been pending since 2001.

On the same date the applicant, represented by two lawyers, appealed. He maintained, in particular, that he was a former policeman with a clean record and that he had never previously been convicted. Furthermore, he stated that he lived permanently in Yevpatoriya, had a child, and suffered from chronic health conditions, in particular pyelonephritis. The applicant acknowledged that at the material time he had been subject to an undertaking not to abscond in connection with a different criminal investigation, but noted that he had never breached that undertaking since it had been put in place in 2001. On an unspecified date the Court of Appeal of the Crimea held a hearing and dismissed the applicant’s appeal. The applicant did not inform the Court whether he had been present at that hearing.

On 22 April 2004 the Yevpatoriya Court, having held a hearing in the applicant’s presence, allowed the investigator’s request to extend the applicant’s detention until 25 May 2004. By way of reasoning, the court noted that the prosecution objectively needed more time to complete the investigation. The court further rejected the applicant’s mother’s proposal to pledge her apartment as bail for the applicant’s release, referring to a risk that the applicant would reoffend given his previous conduct. Referring to a medical certificate, the court also dismissed the applicant’s allegations that his state of health was incompatible with his continued detention.

The applicant appealed, requesting that he be transported to the Court of Appeal for the hearing. He maintained that the case was not complex and that the failure of the investigative authorities to complete the investigation was only on account of a lack of diligence on their part. On 1 June 2004 the Court of Appeal of the Crimea considered the matter in the presence of the applicant’s advocate, but in the absence of the applicant himself, and upheld the previous decision.

In the meantime, on 24 May 2004 the Yevpatoriya Court, having held a hearing in the applicant’s presence, extended his detention until 15 June 2004 on essentially the same grounds as before. It additionally noted that the investigation had not been completed on account of the applicant’s own lack of cooperation. In particular, he had not agreed to confrontations taking place, his lawyer had been engaged in other activities on 14 May, and on 17 May he had also been examined by medical specialists. The applicant raised essentially the same arguments as stated above, and the court rejected them, referring to essentially the same reasons as it had previously. On 8 June 2004 the Court of Appeal of the Crimea upheld the decision of 24 May 2004. The applicant did not inform the Court whether he had been present at this hearing.

On 10 June 2004 the Yevpatoriya Court, having held a hearing concerning the extension of the applicant’s detention in his presence, authorised the extension until 25 June 2004 based on the necessity to carry out additional investigative activities, in particular to consider a request by the applicant’s lawyer to conduct another expert assessment. The applicant appealed, raising essentially the same arguments as before, and noting that since the investigation had almost been completed there was no risk that he would tamper with evidence or otherwise interfere with its effectiveness. On 6 July 2004 the Court of Appeal of the Crimea upheld the decision of 10 June 2004. The applicant did not inform the Court whether he had been present at this hearing.

In the meantime, on 17 June 2004 the Court of Appeal of the Crimea considered, as a court of first instance, the investigator’s request for an extension of the applicant’s detention and authorised the extension until 25 July 2004. It found that the situation remained unchanged from the time of the previous review, that the applicant’s detention was necessary to finish up the investigative activities, and that there was no reason to release the applicant. At the hearing the applicant himself was absent, but was represented by his advocate.

On 23 July 2004 the case was transferred to the Saky inter-regional prosecutor for approval of the indictment. By 28 July 2004 the case had been remitted to the Yevpatoriya Court for the commencement of trial proceedings. The applicant remained in custody, no new decision extending it having been taken.

On 31 August 2004 the Yevpatoriya Court held a preliminary hearing and found that the case was ready for trial. The court ordered that the applicant remain in detention, without specifying any reasons.

Between 1 September 2004 and 1 July 2005 the Yevpatoriya Court considered the applicant’s requests for his detention pending trial to be lifted on some fourteen occasions, in each case doing so on the same date as the request was lodged. The court dismissed all of these requests as unsubstantiated.

On 1 July 2005 the applicant was found guilty of drug dealing and abuse of office and sentenced to five years’ imprisonment. On 20 December 2005 and 17 March 2007 the Court of Appeal of the Crimea and the Supreme Court, respectively, dismissed the applicant’s appeals. The applicant did not present copies of the court decisions taken on the merits of his criminal case.

Between February and August 2004 the applicant was alternately held in the Yevpatoriya Temporary Detention Centre (the “IVS”) and two other facilities.

According to the applicant, the cell in which he was most often held in the Yevpatoriya IVS (cell no. 12) had measured about four square metres and had been shared by him with one to three other inmates. The cell had had no window. Sometimes a ventilator had been switched on, but the air it brought had come from other cells, including two cells where detainees who were sick with tuberculosis had been held. An electric light had been switched on all the time, interfering with detainees’ ability to sleep. On the other hand, this light had been so dim that it had not been possible to read. The cell had had no furniture. Detainees had taken turns to sleep on two bare mattresses and had put their food and personal belongings on the floor near them. The toilet had not been separated from the living area, and detainees had lacked privacy when using it. There had not been a sink and a tap had been situated some forty centimetres above the toilet. The water from the tap had been used for drinking, washing and flushing the toilet. The food had been very poor. Specifically, detainees had been given a piece of bread with tea for breakfast and dinner, and a bowl of soup and a plate of porridge for lunch. The cell had been infested with insects. Between 10 and 13 March 2004 the applicant had been detained in cell no. 3, where seven detainees had taken turns to sleep on two bunk beds. Detainees had not been taken out for exercise and had not been able to take a shower. On numerous occasions the applicant had asked to see a doctor, but his requests had been refused on account of a lack of funds.

The Government acknowledged that cell no. 12 had not had a window or beds. They noted, however, that it had had wooden planks on which the detainees could sleep, a toilet and ventilation. They further noted that cell no. 3 had been equipped with four bunk beds. The Government further submitted that the applicant had not been able to take a shower between 1 and 18 March 2004 and between 20 April and 21 May 2004 in view of his medical condition. For the same reason he had not always been taken outside for walks. The Government additionally noted that the applicant had been given sufficient access to medical services and that during the period at issue he had been visited by a doctor at least twelve times.

On 18 March 2004 the applicant was diagnosed with pneumonia and placed on in-patient treatment in the Simferopol SIZO hospital for a period of about one month. Upon his return to the IVS, on 15 and 17 May 2004 respectively the applicant was examined by doctors, diagnosed with chronic prostatitis and scabies and prescribed an unspecified treatment.

On 4 June 2004 the applicant was found to need in-patient treatment for scabies, as the previous doctors’ recommendations had not been followed.

On 8 June 2004 the applicant was hospitalised in the Saky hospital and was treated until 24 June 2004. According to the applicant, in the hospital he had stayed in a room with barred windows located on the fifth floor which had been guarded by two policemen, and he had been handcuffed to his bed at all times. He presented a photo of himself being handcuffed to a bed in support of his allegations.

On 17 June 2004 the Head of the Yevpatoriya Police Department conducted an internal investigation following the applicant’s complaints about the conditions of his detention. He noted, in particular, that as of the date of his placement in the Yevpatoriya IVS (25 February 2004), the IVS had been overpopulated by more than half of its capacity. He further noted that cell no. 12, in which the applicant had been held at that time, had not been equipped with beds but had had wooden planks and a shelf for personal belongings, that the detainees had been provided with mattresses and linen, that the cell had been well ventilated, and that it had offered sufficient artificial light. He further noted that during the period of his stay in the IVS the applicant had twice taken a shower.

According to the applicant, between February and July 2004 he lost forty kilograms in weight altogether.

On 1 June 2009 the applicant lodged a civil action with the Yevpatoriya Court complaining about the conditions of his detention in the Yevpatoriya IVS and seeking moral damages.

On 3 June 2009 the applicant was given a time-limit to rectify the procedural shortcomings of his submissions, in particular, to present evidence in support of his allegations, grounds for releasing him from the need to present such evidence, to specify, what were the unlawful actions or omissions of the State authorities causing him damage and to present his calculations for the amount of damage claimed.

On 11 June 2009 the court decided to leave the applicant’s claim without consideration on the basis that he had not rectified the procedural shortcomings of his submissions.

The relevant provisions of the Constitution of Ukraine can be found in the judgment in the case of Svershov v. Ukraine, no. 35231/02, § 39, 27 November 2008.

The relevant provisions of the Code of Criminal Procedure of Ukraine of 1960 can be found in the judgments in the cases of Molodorych v. Ukraine, no. 2161/02, § 57, 28 October 2010 (insofar as it refers to Articles 148, 149, 150 and 237); Khayredinov v. Ukraine, no. 38717/04, § 21, 14 October 2010 and Znaykin v. Ukraine, no. 37538/05 (Sect. 5) (Eng).


The applicant was born in 1946 and lives in Kecskemét.

In February 1992 the applicant brought an action against a limited liability company before the Bács-Kiskun County Regional Court, requesting the court to order the respondent to pay him fee for using his real estate.

The Regional Court suspended the proceedings on three occasions for several years, pending the outcome of separate legal disputes related to the ownership of the real estate. The applicant’s requests to have the proceedings resumed were dismissed.

On 22 June 2006 the Regional Court delivered judgment, finding partly for the applicant. In the absence of appeals, the judgment became final on 17 July 2006.


CASE OF OLAECHEA CAHUAS v. SPAIN [Extracts]

No violation of Art. 3;No violation of Art. 5;No violation of Art. 6;Violation of Art. 34;Non-pecuniary damage - financial award;Costs and expenses partial award - domestic and Convention proceedings

The applicant was born in 1944 and currently lives in Peru.

On 3 July 2003 the applicant, a suspected member of the Shining Path (Sendero Luminoso) organisation, a terrorist group founded in 1970 whose aim is to transform Peru’s political system by armed force into a communist proletarian regime, was arrested in Almería (Spain) under an international arrest warrant issued by the Peruvian authorities, following a routine police check of the lists of guests registered at hotels in that province. The applicant was taken into custody pending a ruling on his extradition.

In a decision of 3 July 2003 central investigating judge no. 6 of the Audiencia Nacional asked the applicant for his views on the extradition, in keeping with Article 17 of the bilateral extradition treaty of 28 June 1989 between the Republic of Peru and the Kingdom of Spain.

On 7 July 2003 the extradition hearing requested by central investigating judge no. 6 was held. The applicant agreed to the “simplified extradition” procedure (immediate return to the requesting country) and the application of the “special” rule (under which he could be tried only in respect of the offence for which extradition was requested). The extradition request was based on a terrorist offence.

At the hearing of 7 July 2003 the applicant declared that although he had agreed to simplified extradition, the Peruvian Government were required to guarantee his personal safety, his life, his health and his well-being, in conformity with the standards laid down in international conventions on detention conditions and a fair trial in a reasonable time, as he considered the charges against him unfounded. The Peruvian press having launched a campaign against him – which he considered warranted special protection measures – he also asked for guarantees that he would have access to the press.

The preliminary hearing provided for in Article 504 bis 2 of the Code of Criminal Procedure was also held on 7 July 2003, following which the applicant was detained with a view to his extradition.

In a decision of 9 July 2003 the examining judge, noting that the applicant had agreed to his extradition and that his requests had been granted at the hearing, called for the application of the measures provided for in Article 10 of the bilateral treaty between Peru and Spain and stated that in such cases it was for Spain, through its Ministry of Justice, to obtain the guarantees provided for in that provision from the Peruvian authorities. The extradition would be conditional on the official communication of those guarantees by the ministry, to enable the examining judge to reach a decision in the extradition proceedings.

On 10 July 2003 the applicant appealed against the decision of 7 July 2003 ordering his detention. The appeal was dismissed on 17 July 2003. On 23 July 2003 the applicant filed an appeal against that ruling.

In a decision of 18 July 2003 the Audiencia Nacional authorised the the applicant’s extradition for trial by the Peruvian judicial authorities on the charge of terrorism. It stressed the content of the diplomatic note from the Peruvian Embassy, which read as follows:

“Concerning the guarantee that the accused will not be subjected to punishment causing physical harm, or to inhuman or degrading treatment, we would remind the Spanish authorities that as Peru is party to the American Convention on Human Rights, the Inter-American Convention to Prevent and Punish Torture, and the International Covenant on Civil and Political Rights, the person concerned will enjoy sufficient guarantees under a treaty based on respect for human dignity, as well as the guarantees of physical, psychological and moral integrity enshrined in the main human rights protection instruments.

Article 140 of the Peruvian Constitution provides: “The death penalty may be applied only for the crime of treason to the country in time of war, and for acts of terrorism ... According to Legislative Decrees no. 25475 and no. 921, the acts of terrorism with which the accused, Adolfo Olaechea Cahuas, is charged are not punishable by death.

However, the crime of terrorism referred to in Article 3 (a) of Legislative Decree no. 25475 is punishable by life imprisonment. In order to facilitate the extradition in accordance with Article 10 § 2 of the extradition treaty, it is guaranteed that even if the accused is found guilty in a fair trial, he will not be sentenced to life imprisonment but to the sentence immediately below that.

A fair trial is likewise guaranteed under the judicial safeguards enshrined in the Constitution, international human rights instruments and domestic law.”

In the aforementioned decision of 18 July 2003 the examining judge requested that the Spanish Ministries of Justice and Foreign Affairs be informed of the extradition measure and stated that the agreement of the Council of Ministers was not needed for the extradition.

On 24 July 2003 the applicant lodged an appeal to have the decision of 18 July 2003 overturned and the ordinary extradition procedure applied, under which the Criminal Division of the Audiencia Nacional would decide on his extradition.

In an order of 4 August 2003 the investigating judge dismissed the appeal. He reminded the applicant that he had agreed to the simplified extradition procedure and that that decision was irrevocable.

On 6 August 2003 the applicant requested the application of the measures provided for in Rule 39 of the Rules of Court, to have his extradition to Peru suspended. He relied on Articles 3, 5 and 6 of the Convention.

On the same day the Vice-President of the Fourth Section of the Court decided to apply Rule 39 of the Rules of Court and invited the Spanish Government not to extradite the applicant before the Chamber had examined the case at its meeting of 26 August 2003. The Government’s Agent and the Permanent Delegation of Spain to the Council of Europe were informed of that decision by telephone at 7 p.m., with subsequent confirmation by fax.

On 7 August 2003 the Spanish Government sent the Court a decision of investigating judge no. 6 of the Audiencia Nacional, to whom the Court’s request concerning the temporary suspension of the extradition had been transmitted. In it the judge rejected the request for the application of Rule 39 for the following reasons:

“The applicant agreed to the extradition of his own free will, being fully aware of the consequences. That being so, the decision ordering his extradition is final and no appeal lies against it.

Furthermore, the Peruvian authorities have provided the guarantees requested by the Spanish courts. Finally, the applicant applied to the European Court of Human Rights without exhausting the remedies available to him in Spanish law.”

On 7 August 2003 the applicant was extradited to Peru, where he was incarcerated.

On 8 August 2003 the Court asked the Spanish Government, in accordance with Rule 39 § 3 of the Rules of Court, what steps had been taken to ensure the application of the interim measure indicated.

Having received no reply from the Spanish Government, on 2 September 2003 the Court communicated the application under Articles 3, 6 and 34 of the Convention.

In November 2003 the applicant was granted conditional release by the Peruvian anti-terrorism authorities for lack of sufficient evidence that he was a member of the Shining Path. The applicant’s freedom was restricted by an order prohibiting him from leaving Lima and Peru or changing his place of residence without the authorisation of a judge, and obliging him to report to the judge once a week. The decision of the anti-terrorism authorities also indicated that as the criminal charges against the applicant were maintained, the proceedings against him remained open pending new developments in the investigation.

In January 2004 the Peruvian authorities asked the Spanish authorities to extend the extradition charges so that the applicant could be tried in Peru for financing the Shining Path terrorist group from abroad. Following that request a hearing before the Audiencia Nacional was scheduled for 13 February 2004.

On 22 January 2004 the applicant once again asked the Court to apply Rule 39 and ask the Spanish Government to suspend the hearing until it had ruled on his application.

On 27 January 2004 the Fourth Section of the Court considered that the circumstances underlying the applicant’s request were not of the kind to which, in the Court’s practice, Rule 39 was applied. The request was accordingly dismissed.

The hearing went ahead as planned and, by a decision of 25 February 2004, the Audiencia Nacional allowed the requested extension. The applicant lodged an amparo appeal against that judgment which is still pending before the Constitutional Court.

Following the judgment handed down by the Grand Chamber on 4 February 2005 in the case of Mamatkulov and Askarov v. Turkey ([GC], nos. 46827/99 and 46951/99, ECHR 2005-I), the applicant requested permission to submit additional pleadings to the Court. The Court agreed and the Government were informed. In April 2005 the parties submitted their observations.


Giovanni Bonello;Ján Šikuta;Lech Garlicki;Mihai Poalelungi;Nebojša Vučinić;Nicolas Bratza

The applicant, Mr Waldemar Baran-Baranowski, is a Polish national who was born in 1944 and is currently serving a prison sentence at the Prison in Katowice. He was represented before the Court by Mr J. Zaleski, a lawyer practising in Katowice. The Polish Government (“the Government”) were represented by their Agent, Mr J. Wołąsiewicz of the Ministry of Foreign Affairs.

The facts of the case, as submitted by the parties, may be summarised as follows.

On 20 May 2003 the applicant was arrested on suspicion of trafficking in drugs and counterfeit US dollars while leading an organised criminal group.

Later, several other members of the same criminal group were detained and charged in connection with the investigation of the applicant’s activities. The investigation was conducted by the Organised Crime Department of the Katowice Regional Prosecutor’s Office.

On 21 May 2003 the Katowice District Court remanded the applicant in custody, relying on the reasonable suspicion that he had committed the offences in question. It also considered that keeping the applicant in detention was necessary to secure the proper conduct of the proceedings, given the risk that he might tamper with evidence, go into hiding or induce witnesses to give false testimony. The court also stressed the severity of the anticipated sentence.

An appeal by the applicant against the detention order was dismissed on 18 June 2003 by the Katowice Regional Court. Subsequent appeals against decisions extending his detention were all unsuccessful. In his appeals he argued that the charges against him were based on unreliable and contradictory evidence. He further pleaded not guilty.

On 23 December 2003 the applicant began serving a twenty-five-year prison sentence, given by the Olsztyn Regional Court in a different set of criminal proceedings.

In the course of the investigation, the applicant’s detention was extended on several occasions, inter alia on 5 August and 7 November 2003 and 13 February and 23 April 2004 by the Katowice Regional Court, 12 May and 22 September 2004, 13 May and 7 December 2005, 8 March, 27 September and 20 December 2006, and 4 April, 24 October and 28 December 2007 by the Katowice Court of Appeal.

On 6 February 2008, on a decision by the Katowice Court of Appeal the applicant’s detention was further extended until 30 April 2008.

In all their detention decisions the authorities repeatedly relied on the original grounds given for the applicant’s detention. They considered that the need to secure the proper conduct of the proceedings, in particular the need to verify evidence from thirty-three suspects and fifty witnesses and to have them all confronted justified holding him in custody. They further stressed the extensive body of evidence to be considered in the case and the need to obtain opinions from several experts, including those with expertise in toxicology and chemistry.

On 17 April 2008 the Katowice Regional Court decided to lodge a request with the Katowice Court of Appeal to have the applicant’s detention further extended until 31 July 2008.

On 14 December 2004 the Katowice Regional Prosecutor lodged a bill of indictment with the Katowice Regional Court. The bill of indictment comprised numerous charges of trafficking in drugs and other illicit substances and counterfeit US dollars brought against several defendants, who were all acting in an organised criminal group. The maximum anticipated prison sentence against the applicant was more than eight years.

On 16 July 2008 the Katowice Regional Court delivered a judgment. The applicant was found guilty as charged and sentenced to eight years’ imprisonment. He appealed. At present the appeal proceedings are pending.

The relevant domestic law and practice concerning the imposition of detention during judicial proceedings (aresztowanie tymczasowe), the grounds for its extension, release from detention and rules governing other “preventive measures” (środki zapobiegawcze) are stated in the Court’s judgments in the cases of Gołek v. Poland, no. 31330/02, §§ 27-33, 25 April 2006 and Celejewski v. Poland, no. 17584/04, §§ 22-23, 4 August 2006.


Violation of Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award

The applicant was born in 1946 and lives in Larnaca.

On 1 November 1985 the applicant lodged a civil action (no. 2891/85) before the District Court of Larnaca concerning the payment of the remainder of the price agreed under the contract of sale of his enterprise in South Africa. The total claim was 60,000 South African Rand (ZAR), which was the equivalent of 30,000 Cypriot pounds (CYP) at the relevant time.

Between the above date and 1 January 1989 the Court dealt with the submission of the parties’ pleadings and several applications for their amendment, for the purposes of which a number of adjournments or requests for extensions took place. Approximately five adjournments took place in this period, one at the applicant’s request, two at the defendant’s request and two by the court itself.

On 20 February 1989 the case was adjourned until 9 June 1989 on the parties’ request. The hearing of the case commenced on that date and was fixed to continue on 26 June 1989 but following an adjournment requested by the applicant it was fixed for 27 September 1989. On the latter date the defendant raised an objection challenging the jurisdiction of the Larnaca District Court since the contract between the parties had been concluded in South Africa. The court fixed the hearing in respect of the objection for 14 October 1989. Following two adjournments at the defendant’s request the hearing took place on 10 November 1989.

On 30 January 1990 the court dismissed the defendant’s objection pertaining to its jurisdiction and fixed the hearing for 6 March 1990.

On 13 February 1990 an appeal (no. 8052) was filed against the district court’s ruling of 30 January 1990, concerning its jurisdiction to try the case. Consequently, the case was taken off the trial list pending the result of the appeal.

On 21 February 1990 the defendant was served with a notice by the Registrar of the Supreme Court requesting him to pay the due fee for the preparation of the record of the first instance proceedings. The court’s record was sent by the Larnaca District Court to the Supreme Court on 22 March 1990.

On 23 November 1992 the parties were notified by the Chief Registrar of the Supreme Court that the appeal was fixed for hearing on 15 December 1992. On that date however the case was adjourned to enable the applicant to file a cross-appeal.

On 27 April 1993 the Supreme Court found that the Larnaca District Court had jurisdiction to try the action and dismissed the appeal.

On 7 June 1995 the applicant applied for a date of mention concerning the continuation of the proceedings and the case was fixed for this purpose for 7 July 1995. On that date it was fixed to be heard on 5 December 1995.

Between the above date and 20 December 1996 the case was adjourned several times. Approximately three of these adjournments were at the applicant’s request, four at the parties’ request and one at the defendant’s.

On 20 December 1996 the Larnaca District Court reserved its judgment. This was delivered on 30 January 1997 dismissing the applicant’s action.

On 3 March 1997 the applicant filed an appeal (appeal no. 9912) against the first instance judgment.

The notice of the appeal was sent by the Registrar of the Larnaca District Court on 13 March 1997 to the Supreme Court indicating that the file of the case had been given for the purposes of typing the record of the proceedings and that this would be available in ten months due to the excessive volume of work. The record was necessary in order for the appeal to be fixed for hearing. On 2 April 1997 the applicant paid the fee due for the court’s record.

On 9 February 1998 the Chief Registrar notified the parties that the appeal was fixed for directions for 24 February 1998. On that date the parties were instructed to file their outline addresses.

On 9 November 1998 the Chief Registrar sent a notice to the parties informing them that the appeal was fixed for hearing on 17 December 1998. On that date the parties’ addresses were heard and judgment was reserved.

On 26 January 1999 the Chief Registrar of the Supreme Court informed the parties that due to the resignation of one of the presiding judges, the appeal had to be retried. Following two adjournments on the basis of the respondent’s request, the parties’ addresses were heard on 21 June 1999 and judgment was reserved.

On 30 September 1999 the Supreme Court delivered its judgment setting aside the first instance decision and ordering a retrial. The costs of both the first instance trial and the appeal were awarded in favour of the applicant. The parties were then notified that the case file had been returned to the Larnaca District Court on 6 October 1999 and they were requested to file an application to that court for the case to be fixed.

On 4 February 2000 the applicant applied to the Registrar of the Larnaca District Court requesting that the case be fixed for retrial.

On 20 June 2002 an application was lodged by the applicant requesting that the case be fixed for directions. In the relevant court records of 4 July 2002, the court stated that the case should be given priority and that the Registrar should inform the court why the case was not put before it on 4 February 2000 when the applicant had applied for the case to be fixed. In the relevant court records of 5 July 2002, the Registrar noted that the file of the case had been returned to the Supreme Court for the assessment of costs which took place on 4 April 2000 and that it was not known why the case had not been put before a judge. However, the Registrar pointed out that the applicant’s lawyers had not pursued the application for two years.

The case was then fixed for 14 and 15 November 2002 but following an adjournment at the defendant’s request it was postponed until 11 and 12 December 2002. On 11 December 2002 the case was settled between the parties with a decision in the applicant’s favour for the amount of CYP 2000 plus the costs and expenses that had been awarded by the Supreme Court.


Corneliu Bîrsan;Egbert Myjer;Ineta Ziemele;Ján Šikuta;Josep Casadevall;Kristina Pardalos;Nona Tsotsoria

The applicant, Mr Ervins Leitendorfs, is a Latvian national who was born in 1976 and lives in Jelgava. He is represented before the Court by Mrs B. Didrihsone, a lawyer practising in Rīga.

The Latvian Government (“the Government”) were represented by their Agent, Mrs I. Reine.

The facts of the case as submitted by the parties may be summarised as follows.

In 2002 the applicant was arrested on suspicion of having committed an offence. On 4 September 2002 the Limbaži District Court found the applicant guilty of robbery with aggravating circumstances and sentenced him to six years and one month’s imprisonment. The judgment became final in November 2003.

From 18 March to 2 April 2004 the applicant was in Jēkabpils Prison, and from 2 April to 20 August 2004 and 10 September 2004 to 19 March 2006 he served his sentence in Grīva Prison. He brought numerous complaints before various State authorities. In particular, he complained that from 19 to 23 March 2004 and from 1 to 4 April 2004 his anti-tuberculosis treatment had been interrupted.

In the same letter he also complained that he had been denied a referral for three particular medical tests, including a head computed tomography (CT) an electroencephalograph (EEG), which he had requested in June 2004 and an oscillography, which he had requested in September 2004. The applicant alleged that the tests were indispensable in order to establish his mental-health problems.

On 8 July 2005 the Ministry of Justice replied that the state of the applicant’s mental health had been regularly examined by a psychiatrist in prison, and that the Inspectorate for Quality Control of Medical Care and Working Capability (“the MADEKKI”) had examined the quality of the medical assistance at the place of the applicant’s detention three times without establishing any violation in this respect. The applicant was also informed that, according to information provided by the Prisons Administration and the MADEKKI, he did not have medical symptoms which would necessitate the tests he had requested.

In October 2004 the applicant complained to the Prosecutor’s Office about the quality of food and water and the size of bed linen in Grīva Prison. On 1 November 2004 the Prisons Administration dismissed the complaints.

In that letter the applicant also mentioned that in Grīva Prison prisoners suffering from tuberculosis had been subjected to solitary confinement where they could not receive bed linen or adequate clothes. The Prisons Administration informed the applicant that, in accordance with section 74(2) of the Sentence Enforcement Code, detainees were not provided with bed linen in the isolation wards and could not take exercise.

The Government relied on the report of 12 November 2002 which the head of Valmiera Prison had sent to the Vidzeme Regional Court stating that from July to November 2002 the applicant had had eleven consultations with the prison psychiatrist and five consultations with the prison doctor. The applicant was diagnosed as suffering from neurosis.

According to a report (without a date) drawn up by the head of the tuberculosis unit of the Central Prison Hospital, the applicant had begun serving his sentence in Jēkabpils Prison on 18 November 2003. On 29 November 2003 he fell ill and on 2 December 2003 he had an X-ray examination following which, on 12 December 2003, he was transferred to the tuberculosis unit of the Central Prison Hospital in Rīga for further tests and treatment. On 17 December 2003 the final diagnosis confirmed that the applicant had contracted tuberculosis, and from 18 December 2003 to 18 March 2004 he received anti-tuberculosis treatment, in accordance with the guidelines set by the World Health Organisation (“the WHO”). Afterwards he was transferred to the tuberculosis unit in Grīva Prison where he continued receiving adequate treatment until 23 June 2004. According to the results of the medical examinations of 30 June and 6 July 2004, the applicant showed no signs of tuberculosis; he nevertheless remained under the supervision of TB specialists until 24 February 2005.

The above report mentioned that, according to the guidelines set by the WHO, only an interruption of two months could be considered as a suspension of treatment for tuberculosis.

In a letter of 26 May 2006 the Ministry of Justice, at the Government Agent’s request, supplied the information that in Grīva Prison TB patients were detained separately from the others in a unit which had been refurbished in 2002 and had all the necessary facilities including showers, a gym and an area for outdoor activities, and that the applicant was provided with bed linen. The number of inmates per cell did not exceed 4 to 6.

The letter also stated that, on account of insufficient funds, the prison had been unable to provide detainees with the statutory hygienic products until November 2005.

At the Government Agent’s request, on 14 May 2007 the MADEKKI sent its conclusions on the medical assistance provided to the applicant in prisons in Latvia. It stated that during the inspections carried out in March 2005 the inspectors had discovered that the medical unit of Gīva Prison and the Central Prison Hospital had not obtained the certification envisaged by the Regulations of the Cabinet of Ministers No. 77 of 19 February 2002. It further stated that the medical unit of Grīva Prison had received the certificate in November 2005 and that in September 2005 the Inspection had noted various improvements in the functioning of the Prison hospital.

The MADEKKI further explained that the three head examinations requested by the applicant were not normally carried out in diagnosing mental illness or behaviour or neurotic disorders.

According to the extracts from the applicant’s medical history, the applicant sustained head injuries in 1982 and 1983. In 1982 and 1985 he was diagnosed as suffering from neurosis. In 1988/89 it was recommended that he study from home on account of his nervous disposition.

On 4 March 2003 the applicant underwent a forensic medical examination. It concluded that the applicant did not suffer from mental illness. The experts found that the applicant had organic personality and behaviour disorder and an addiction to alcohol, and that he would be able to receive adequate medical treatment in prison.

According to a medical report of 31 May 2004, issued by a practitioner from the applicant’s former place of residence, the applicant was diagnosed as suffering from encephalopathy of a post-traumatic or toxic kind. No recommendation as to further medical treatment had been noted.

On 20 August 2004, at the applicant’s request, he was transferred to the Psychiatry Unit of the Central Prison Hospital. According to the medical report of 4 July 2005, drawn up by the head of the hospital, the applicant was diagnosed as suffering from mixed-type encephalopathy; he did not have medical symptoms which would necessitate carrying out the particular examinations he had requested.

On 10 April 2006 an official from the State Probation Service informed the applicant that in order to determine his fitness for work he should have a consultation with a neurologist.

In response to a request from the applicant of 28 June 2006, in a letter of 17 July 2006 a private company offered to pay the cost of the examinations prescribed by his neurologist in the sum of LVL 90 (EUR 130).

On 13 November 2006 the applicant had a consultation with a neurologist in a civil hospital. He was diagnosed as suffering from post-traumatic and toxic encephalopathy. He was advised to undergo an EEG, a dopplerography and an echocardiogram and to have a consultation with a psychiatrist. The medical records show that on 8 December 2006 the applicant underwent an EEG and a dopplerography in a civil hospital. There is no information as to the results of the tests.

In response to the applicant’s enquiries, on 30 August 2004 the MADEKKI concluded that the quality of the anti-tuberculosis treatment which the applicant had received from 12 December 2003 until 18 March 2004 in the Central Prison Hospital had been adequate. It also stated that the applicant had received vitamins and specially enriched nutrition during the treatment and that the latest examinations showed that the applicant’s health condition had significantly improved. It also established that in April 2004 the applicant had been repeatedly examined by a prison doctor in Grīva Prison and had received appropriate medication.

In response to the applicant’s complaint that he had been denied specific head examinations, on 6 September 2004 the MADEKKI informed him that the medical examinations he had requested would be carried out if additional financial resources were allocated to the Central Prison Hospital and if the doctor recommended that he undergo the examinations. He was informed that, according to the Regulations of the Cabinet of Ministers (see paragraph 27 below), he could have the examinations at his own expense.

In response to a letter from the applicant of 27 September 2007, in which he complained about the interruption of his anti-tuberculosis treatment, the State Agency of Tuberculosis and Lung Diseases explained on 22 October 2007 that the anti-tuberculosis treatment had to be supplied regularly and that frequent interruptions might have an impact on the effects of the treatment, especially if the patient received less than 80% of the prescribed treatment. It also noted that in the applicant’s case the interruption of four days would not imperil his health.

Pursuant to section 2, convicted persons shall receive the minimum free State-granted health care in the amount established by the Cabinet of Ministers. In addition, the Prison Authority, within its budgetary means, shall provide convicts with the following health-care services: primary, secondary and (partial) tertiary medical assistance; urgent dental care; examinations of their health condition; preventive care; medical treatment and injections prescribed by a doctor; and medical equipment.

Pursuant to section 11, the medical examinations which are necessary for the Commission on Health and Working Capability to adopt an initial decision shall be financed from the State budget.

Section 12 provides that, upon the request of a detainee, the administration of the penitentiary institution may agree with the administration of a civil medical institution on consultation and treatment at the detainee’s expense.


Remainder inadmissible;No violation of Art. 6-1;No violation of P1-1

Alvina Gyulumyan;Corneliu Bîrsan;Ján Šikuta;Josep Casadevall;Luis López Guerra;Mihai Poalelungi;Nona Tsotsoria

The applicant was born in 1930 and lives in Slatina. He is retired.

On 7 August 2001 he lodged a criminal complaint against E.I., claiming that she had stolen certain items from his flat. He stated that E.I. regularly came to his flat to clean it and that on 20 January 2001 she had removed several items of jewellery and clothing from his flat. He had only realised in July 2001 that those items had disappeared from his flat.

The case was heard by the Drăgăşani District Court, which delivered its first-instance judgment on 14 January 2002 finding E.I. guilty and sentencing her to three months’ imprisonment, suspended. E.I. was ordered to pay the applicant damages of 10,000,000 Romanian lei (ROL – approximately 350 euros (EUR) at the time), representing the estimated value of the stolen items, and ROL 2,500,000 (approximately EUR 90) in legal fees. The District Court based its decision on the statements of the parties and of two witnesses. According to one of the witnesses, the applicant had complained to him in July 2001 that several items were missing from his flat. According to the second witness, in February 2001 the defendant had shown him several items of jewellery and clothing, mentioning that she had received them as a gift from the applicant.

On 1 April 2002 the Vâlcea County Court dismissed an appeal by E.I. and the judgment of 14 January 2002 thus became final and enforceable.

On an unspecified date the Prosecutor General of Romania lodged an extraordinary appeal (recurs in anulare) against the judgment of 14 January 2002. The Prosecutor General argued that E.I. had been wrongfully convicted, as none of the evidence adduced was conclusive as to her guilt. This had led to a breach of her right to be presumed innocent until proved guilty. The prosecutor also indicated that E.I. had submitted two pieces of evidence as part of her defence which had been ignored in the ordinary proceedings. One of the documents was a request lodged by the applicant to the owners’ association in which he sought an exemption from utility costs for the period December 2000-April 2001, when he would be away in the United Kingdom. This document was relevant, as the applicant stated that E.I. entered his flat only when he was there and he had declared that the items had been stolen on the exact date of 20 January 2001, when, according to that document, he was not in Romania. The second document was a report of a search conducted by the police at the home of the defendant, which indicated that none of the items claimed to have been stolen from the applicant’s flat had been found there.

In a decision of 4 November 2003 the High Court of Cassation and Justice allowed the extraordinary appeal, quashed the judgments of 14 January and 1 April 2002, acquitted E.I. and relieved her of the obligation to pay the applicant compensation for the stolen items and the legal costs.

The court held that the prior conviction had been based on the statements of two witnesses who declared that they knew that E.I. was doing housework for the applicant, that he owned the items mentioned in his criminal complaint and that after 20 January 2001 some of the items were seen by one of the witnesses in the house of E.I. Nevertheless, the court indicated that these statements were contradicted by the evidence in the case file indicating that the applicant had been away from Romania between December 2000 and April 2001. Furthermore, taking into account that he had always stated that E.I. only did housework in his flat when he was there, the court indicated that his submission that he had not noticed E.I. leaving the flat with so many items was not credible.

The court further concluded that the evidence adduced in the case was both contradictory and inconclusive in respect of the date the alleged theft was committed and of whether the defendant had committed the theft. It therefore quashed the earlier decisions on the ground that they had not been lawful and acquitted E.I. of all charges, relieving her also of the obligation to pay compensation for the stolen items and for the court costs incurred by the applicant.

The applicant attended the hearing and submitted his arguments in support of his claims.

For a summary of the relevant domestic-law provisions concerning this type of extraordinary appeal (recurs in anulare) see the judgment in the case of Precup v. Romania (no. 17771/03, § 15, 27 January 2009).


The applicant is an Irish citizen, born in 1923 and living in Dublin. He is the father of Anne Massey.

He is represented before the Court by Mr G. O’Neill, a lawyer practising in Dublin.

On 17 May 1974 Anne Massey was killed in a terrorist bombing in Dublin. The cars used for the bombing were stolen in Belfast in Northern Ireland on the same day.

The Irish authorities conducted extensive inquiries but were unable to bring charges against any person. The files remain open. The Royal Ulster Constabulary (RUC) in Northern Ireland has conducted an inquiry into the theft of the vehicle and related offences which did not produce any results. However, there was no formal murder inquiry by the RUC.

On 6 July 1993 ITV, a television station in the United Kingdom, broadcast a programme in which the adequacy of the RUC inquiry was discussed.