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

The applicants, whose particulars appear in the Appendix, are four Slovak nationals. The Government of the Slovak Republic (“the Government”) were represented by their Agent, Mrs M. Pirošíková.

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

The applicants’ family owned a plot of land in the Lorinčík area. It was originally classified as a field. In the 1950s the State entrusted various public entities with the administration and use of the land, of which the members of the applicants’ family formally remained the owners. The applicants each inherited a share in the plot.

Under a contract of 1980 the right of temporary use of the land was eventually conferred on the Slovakian Union of Fruiterers and Gardeners for a period of thirty years.

The area where the plot is located was turned into a “garden community” consisting of individual gardens which were put at the disposal of third parties, members of the above Union (“the gardeners”). The plot was reclassified as a garden and it has since been used as such a garden.

In the early 1990s the applicants commenced asserting their rights in respect of the plot. The relevant action and proceedings are described below.

On 14 February 2005 the Košice II District Court granted the applicants’ action of 1995 and ordered the gardeners to vacate land which was outside the limits of the garden community.

The applicants appealed only against the decision relating to the costs of the proceedings. One of them, Ms M. Kováčová, also complained that no compensation had been paid for the use of their land in the garden allotment.

On 28 April 2006 the Košice Regional Court ordered the first-instance court to review its decision on the costs of the proceedings. The claim for compensation was outside the purview of the court of appeal as the plaintiff had not submitted it in the proceedings at first instance. The remaining part of the District Court’s judgment became final.

As from 1992 the applicants repeatedly and unsuccessfully attempted to conclude a lease contract with the gardeners.

In a letter of 5 March 1993 one of the applicants stated that she considered 1 to 3 Slovak korunas (SKK) per square metre and year to be a reasonable sum.

On 27 December 1995 the applicants lodged an action with the Košice II District Court. They claimed payment of rent in respect of the land used by the gardeners for the period between 2 August 1993 and 2 August 1996. They relied on section 22(2) of the Land Ownership Act 1991, which provides that if no other arrangement has been made between an owner and an occupant of land in a garden community, their relationship would become ex lege that of the parties to a lease. The applicants also claimed that the defendants should be ordered to vacate the land.

In the subsequent proceedings the District Court had regard to two expert opinions. It noted that under the law then in force (Regulation 465/1991 which governed valuation of property for administrative purposes) the maximum rent for similar land was four Slovakian korunas (SKK) per square metre.

At a hearing held on 24 February 2004 the applicants stated that they claimed SKK 2.9 as yearly rent for a square metre of their land.

In its judgment of 20 March 2006 it held that the amount claimed by the applicants, namely SKK 2.9 per square metre plus default interest, was appropriate. It therefore granted their action. The defendant appealed.

The case was subsequently remitted at first instance.

On 2 May 2008 a different expert concluded, with reference to Regulation 465/1991 and the Land Ownership Act 1991, that the rental value of the applicants’ land had been SKK 0.07285 per square metre between 1993 and 1996.

On 28 May 2008 the applicants challenged that valuation. With reference to the relevant regulation they alleged that in the area concerned the rent was fixed at SKK 4 per square metre.

On 7 September 2009 the District Court ordered a fourth expert opinion on the rental value of the applicants’ land between 2 August 1993 and 2 August 1996.

The proceedings are pending.

On 16 January 1998 the gardeners requested under section 7(1) of Law no. 64/1997 on the use of plots of land in allotment gardens and arrangements as regards their ownership (Zákon o užívaní pozemkov v zriadených záhradkových osadách a vyporiadaní vlastníctva k nim – “Law no. 64/1997”) that the tenancy and ownership relations in respect of their gardens be settled by the Košice II District Office in a land consolidation procedure under section 7(4) of that Act.

On 20 August 1999 the district office made a formal announcement to the applicants under section 18(1) of Law no. 64/1997 of the commencement of the procedure under section 7(4) of the Act. The announcement contained a register of the original ownership and a surveyor’s plan concerning the current state of the land (“the preliminary inventory”). The applicants had an option to buy the constructions and vegetation situated on their plot.

On 4 November 1999 the district office approved the preliminary inventory under section 9(4) of the 1997 Act, observing that no objections to it had been raised.

On 19 November 1999 the applicants challenged the decision of 4 November 1999 by an administrative appeal. They opposed the consolidation procedure as such; claimed that the gardeners’ use of their land was illegitimate; challenged inconsistencies in the preliminary inventory; and invoked the protection of their property rights under the Constitution.

On 31 January 2000, following a hearing, the Košice Regional Office quashed the decision of 4 November 1999 and remitted the matter to the district office for re-consideration. It held that the District Office had failed to examine adequately whether the gardeners’ request of 16 January 1998 complied with the applicable procedural requirements and to determine objections which the applicants had raised in various forms in respect of the consolidation procedure and the preliminary inventory.

On 14 February 2000 the district office decided to stay the proceedings under Law no. 64/1997. The determination of the validity of the contract of 1980, which had been challenged by the land owners, was prejudicial to the consolidation procedure. Ms M. Kováčová, who had raised that objection, was invited to institute separate proceedings before a court within thirty days with a view to having that issue determined.

On 3 August 2000 the district office decided to resume the proceedings as it had been established that Ms M. Kováčová had not complied with the above instruction in that she had failed to challenge the contract of 1980 before a civil court. There was thus no obstacle to the land consolidation. On the same day the district office again approved the preliminary inventory.

On 24 October 2000, on Ms M. Kováčová’s appeal, the regional office upheld the decision of 3 August 2000.

On 20 February 2001 the district office invited the applicants under section 10(1) of Law no. 64/1997 to state whether they preferred to be compensated by being granted a substitute plot or paid an amount of money in lieu of their land. As to the substitute plot, a specific proposal was made.

On 28 September 2001 the district office ruled that three of the applicants were to be compensated financially as they had made no claim for substitute land.

On 25 September 2002 the regional office ruled that the remaining applicant, Ms M. Kováčová, would also be compensated financially on the ground that she had rejected the proposed plot. The decision was upheld on her appeal on 18 November 2002 by the Ministry of Agriculture. Its decision stated, inter alia, that the plaintiff challenged the validity of the legal act of 1980 which placed the land at the gardeners’ disposal and that it was open to her to bring a civil action with a view to having that issue determined.

On 6 February 2003 the district office approved a project of consolidation of the land in question. On 12 March 2003 it ordered its implementation. The project presupposed that the gardeners would become the owners of their gardens and that the original owners of the land concerned would become the owners of specific substitute land or, as in the case of the applicants, would be financially compensated. The relevant documents indicate that the compensation payable to the applicants amounted to SKK 7.5 per square metre of their land. On 18 August 2003 the Regional Office upheld that decision.

On 19 September and 1 December 2003 respectively the district office and, on the applicants’ appeal, the regional office, approved the implementation of the project. The decision became final and binding on 11 December 2003. By virtue of that decision the gardeners became the owners of their gardens. In 2004 their ownership title was recorded in the Land Registry.

Ms M. Kováčová’s request for the reopening of the proceedings was refused on 25 August and 8 November 2004 by the regional office and, on her appeal, by the Ministry of Agriculture on the ground that she had not submitted new relevant information within the meaning of the applicable procedural rules. The administrative authorities had regard to the applicant’s argument that the contract of 1980 allowing the gardeners to use the land was void. They noted that the plaintiff, despite several requests, had not been shown to have challenged the validity of that contract before a court.

On 16 May 2007 the Košice Regional Court dismissed the applicants’ action challenging the lawfulness of the administrative authorities’ order of 2003 for implementation of the consolidation project under Law no. 64/1997. The judgment stated, inter alia, that in the context of the proceedings complained of, that is concerning the order for implementation of the consolidation project, the administrative authorities could no longer examine the argument about alleged flaws in the 1980 contract under which the land had been put at the gardeners’ disposal. That issue fell to be determined by a civil court in a separate set of proceedings. The Regional Court found no flaws rendering unlawful the proceedings complained of and the decisions taken.

The applicants appealed and argued that the regional court had disregarded their arguments about flaws in the 1980 contract.

On 16 April 2008 the Supreme Court upheld the first-instance judgment.

The Supreme Court’s judgment was served on the advocate representing the applicants on 7 August 2008. He sent it to the applicants on 15 October 2008.

On 7 and 8 January 2009 Ms M. Kováčová lodged a complaint with the Constitutional Court. She complained under Article 1 of Protocol No. 1 that in proceedings under Law no. 64/1997 she had been deprived of her property without appropriate compensation. She referred to the above administrative decisions of 6 February 2003 and 12 March 2003 and to the judgments of the regional court and the Supreme Court of 16 May 2007 and 16 April 2008 respectively. She expressly stated that she challenged Law no. 64/1997 and maintained that there was no public interest in a transfer of her land to the gardeners under its provisions.

On 4 February 2009 the Constitutional Court rejected the complaint on the ground that the applicant had not lodged it within the two-month time-limit laid down in the Constitutional Court Act 1993.

In an opinion prepared at the applicants’ request and dated 12 February 2009 an expert in valuation of real estates concluded that the market value of the applicants’ land, as on 9 February 2009, was 32.59 euros (EUR) per square metre. The opinion stated that the land was situated within a municipality belonging to the town of Košice, which was the seat of regional authorities and institutions. It was within ten minutes’ drive of the town centre and the locality was a popular residential area for the town’s inhabitants.

At the Government’s request the Forensic Engineering Institute in Žilina determined the market value of the property in an opinion of 5 April 2009. It concluded that in December 2003, when the land had been transferred to the gardeners, its general value had been EUR 9.14 per square metre.

The relevant domestic law and practice, as well as the general background to consolidation of land used by garden communities, are set out in Urbárska obec Trenčianske Biskupice v. Slovakia, no. 74258/01, §§ 7-13 and 40-80, ECHR 2007... (extracts)).

In addition, the following legal provisions and practice are relevant in the present case.

Article 152 § 4 of the Constitution provides that constitutional laws, laws and other generally binding legal regulations are to be interpreted and applied in conformity with the Constitution.

Pursuant to Article 154c § 1 of the Constitution, international treaties on human rights and fundamental freedoms which the Slovak Republic has ratified and were promulgated in the manner laid down by a law prior to the entry into force of Constitutional Act 90/2001 on 1 July 2001 form a part of its legal order and have precedence over laws where they provide for a broader array of constitutional rights and freedoms.

In judgment I. ÚS 36/02 delivered on 30 April 2003 the Constitutional Court, with reference to Articles 152 § 4 and 154c § 1 of the Constitution, held that the Convention and the case-law of its bodies represent binding guidelines for national authorities on interpretation and implementation of legal provisions bearing on fundamental rights and freedoms. The Convention and the case-law of its organs thus set a framework which the national authorities could not overstep when dealing with a case. The same view was expressed in its judgment I. ÚS 239/04 of 26 October 2005.

On 15 October 2003 the Constitutional Court delivered a judgment in proceedings III. ÚS 138/03. The case concerned alleged flaws in proceedings on implementation of a consolidation project under Law no. 64/1997. In particular, the plaintiff complained that by its decision to discontinue the proceedings concerning lawfulness of the administrative authorities’ decisions a court had breached his rights to judicial protection and to own property.

The Constitutional Court granted the complaint considering that the court should have dealt with the merits of the case. It returned the case to the ordinary court for further proceedings.


Violation of Article 10 - Freedom of expression -{General} (Article 10-1 - Freedom of expression);No violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Impartial tribunal)

David Thór Björgvinsson;George Nicolaou;Lech Garlicki;Ledi Bianku;Päivi Hirvelä;Vincent A. De Gaetano;Zdravka Kalaydjieva

The applicant was born in 1981 and is currently serving a prison sentence in Pleven Prison.

The applicant was detained in Belene Prison from an unspecified date in August 2002 until 29 March 2007, when he was moved to Pleven Prison. He stated that the conditions of detention in Belene Prison had been inhuman and degrading.

It appears that the applicant submitted frequent complaints to various institutions against the administration of Belene Prison.

On an unspecified date in 2005 he complained to the prosecuting authorities that some of the letters he had sent had been withheld by the administration and had never reached their addressees. Following an inquiry, his complaint was dismissed both by the regional prosecutor on 14 July 2005 and on appeal on 17 August 2005 by the prosecutor in appeal proceedings who established that between January 2004 and June 2005 the applicant had sent thirty-one letters, which had been duly entered in the prison register and forwarded to their addressees.

On 26 and 31 October 2006 the director of Belene Prison ordered the confinement of the applicant in an isolation cell for two five-day periods following two violent incidents between the applicant and another prisoner which had occurred at short intervals. The applicant appealed.

The Levski District Court opened two sets of proceedings and on 10 November 2006 examined the applicants’ appeals in two separate hearings held consecutively. The applicant appeared in person while the prison administration did not send a representative.

At the start of the first hearing the court stated that it had summoned Mr K., a prison guard, as a witness. It noted that Mr K. had not appeared, the prison administration having submitted a medical certificate to the effect that he had been admitted to hospital. The applicant requested that another prison guard, Mr S., be questioned but nevertheless agreed that the court should proceed with the examination of the case.

On the merits, the applicant stated that he had been insulted and attacked by an inmate. He denied having insulted the inmate concerned and claimed that he was not responsible for the incident and that the punishment was unjustified.

In a final decision of the same date the District Court upheld the order of 31 October 2006, stating that the director of the prison had taken into consideration all relevant circumstances and had delivered a reasoned and lawful order. The director had considered the applicant’s and witnesses’ statements and the report of a prison employee. The court further noted that the written statements of the witnesses corroborated the director’s conclusions and did not support the applicant’s account of the events. As to the punishment, it had been determined with due regard to the gravity of the offence and the applicant’s conduct as a whole.

Then the court proceeded with the second hearing. It noted that the prison guard Mr S., who had been summoned as a witness, was also in hospital. The applicant insisted on the appearance of Mr S. and stated that he wanted to call a second witness, Mr F. He also asked to be assigned a court-appointed lawyer and sought an adjournment.

The court dismissed those requests, stating that it was obliged to complete the examination of the applicant’s appeal within three days of its being lodged and that the absence of a lawyer was not a reason for adjourning the hearing.

On the merits, the applicant explained that the incident had been similar to the first one and that he had been insulted and attacked by the same inmate.

In a final decision of the same date the District Court upheld the order of 26 October 2006. It found that on 28 September 2006 a conflict had arisen between the applicant and another prisoner which had developed into a fight. That had necessitated the intervention of the guard on duty. The director of the prison had taken into consideration all relevant circumstances and had delivered a reasoned and lawful order. He had considered the applicant’s and witnesses’ statements and the report of a prison employee. The court further noted that the written statements of the witnesses corroborated the director’s conclusions and did not support the applicant’s account of the events. As to the punishment, it had been determined with due regard to the gravity of the offence and the applicant’s conduct as a whole.

On 18 December 2006, while the applicant was isolated in a disciplinary cell in connection with the above punishments, his mother sent him a parcel which was not delivered to him. On an unspecified date in December 2006 the applicant asked why his right to receive parcels had been restricted. The prison administration informed him that no parcel had arrived.

On 3 January 2007 the applicant complained to the public prosecutor that the prison administration had refused to give him the parcel. He requested that the matter be investigated and the responsible officials punished. He stated that the prison employees often made such mistakes in respect of prisoners. Lastly, he stated that the incident amounted to a criminal offence under Article 171 of the Criminal Code, which made it an offence to, inter alia, hide or destroy a package intended for another person.

On 8 January 2007 the applicant gave a copy of his complaint to a prison employee, who transmitted it to the prison director. Following an internal inquiry, it was established that on 18 December 2006 a parcel for the applicant had indeed arrived and was sent back to the sender because the applicant was not entitled to receive parcels while in isolation. In relation to the above, the director of Belene Prison considered the applicant’s statements to the public prosecutor defamatory and on 29 January 2007 punished him with fourteen days’ isolation in a disciplinary cell. He also justified the punishment on grounds of the applicant’s overall conduct, referring to the punishments imposed on him on 26 and 31 October 2006 (see paragraph 9 above) and the fact that the applicant had frequently sent similar complaints to various institutions. The applicant appealed.

The District Court held a hearing on 5 February 2007. An employee of the prison submitted that the parcel had been lawfully returned because prisoners were not allowed to receive parcels while punished with solitary confinement. The witness further stated that he had suggested that the applicant be punished because the latter had made insulting and defamatory statements against the prison administration. The witness pointed out that this was the applicant’s third breach of the disciplinary rules.

The applicant replied that he would not have complained to the public prosecutor had the prison administration informed him about the parcel. He stated that he had not received a reply from the public prosecutor.

In a final decision of the same date the District Court upheld the order of 29 January 2007. It referred to the statements of the witness and the information contained in the disciplinary file and held that the order was reasoned and lawful and that the conduct of the applicant within the last year had been taken into consideration.

On an unspecified date in 2007 the applicant requested the General Directorate of Enforcement of Sentences at the Ministry of Justice to transfer him to another prison, stating that the administration of Belene Prison had subjected him to harassment. In particular, he referred to the dispute about the parcel and the ensuing punishment (see paragraphs 18-23 above).

On 16 March 2007 the Deputy Minister of Justice granted the applicant’s request and ordered that he be moved to Pleven Prison. He noted that the prison authorities had given inaccurate information to the applicant about the parcel and that, therefore, the applicant had acted in good faith in complaining to the public prosecutor. The honesty of his intention was also evident from the fact that he had provided the prison administration with a copy of his complaint. The Deputy Minister further noted that prisoners were entitled to make applications and complaints to public bodies and stressed that the disciplinary liability envisaged in the Enforcement of Sentences Act could not be used to restrict that right. Noting that the punishment of 29 January 2007 had been upheld by the court and had become final, the Deputy Minister considered that the applicant had understandably lost confidence in the administration of Belene Prison and that that risked jeopardising his reform, should he remain in that prison.

Under section 76(k) of the Execution of Sentences Act (ESA) of 1969, in force at the relevant time, a prisoner who violated prison regulations or disciplinary rules or failed to fulfil his duties could be punished by, inter alia, confinement in an isolation cell for up to fourteen days. During confinement, prisoners could not use the telephone or receive any visits or parcels but were still entitled to one hour’s daily exercise in the open air, separated from the other prisoners (section 76a of the ESA and section 103 of the ESA Implementing Regulation of 1969).

Section 46 of the ESA Implementing Regulation of 1969 provided that where a prisoner used defamatory or offensive language in his or her submissions or complaints, he or she was liable to disciplinary and criminal punishment. On 1 June 2009 the ESA of 1969 was superseded by the new Enforcement of Sentences and Detention Orders Act (the “ESDOA”). Pursuant to section 90 (5) of the ESDOA, prisoners shall not be liable to disciplinary punishment because of having made a request or lodged a complaint.

In accordance with sections 78 and 78b of the ESA of 1969, an appeal lay to the General Directorate of Enforcement of Sentences or the district court against punishment by confinement in an isolation cell. The former was obliged to examine the case within two months, and the latter within three days. Execution of the punishment was not suspended pending the outcome of the appeal, unless the relevant appeal body decided otherwise. In proceedings before the district court the public was excluded and the absence of the prisoner’s lawyer was not an obstacle to the examination of the case. The court was obliged to examine all circumstances relevant to the lawfulness of the punishment. Its decision was final.

Pursuant to the ESA of 1969 and the relevant Implementing Regulation, the General Directorate of Enforcement of Sentences at the Ministry of Justice was responsible for managing and supervising prisons. Its General Director could annul the decisions of prison directors.

Under the Judiciary Act of 2007 and the ESA of 1969, the public prosecutor was competent to supervise prisons and the enforcement of sentences. His powers included examining complaints from prisoners, giving mandatory instructions to the prison administration for correcting irregularities, and suspending unlawful acts which were amenable to appeal.

Disputes between prisoners and the prison administration concerning the enjoyment of rights such as visiting rights or the rights to receive correspondence or parcels were not amenable to appeal before the court.

Section 1 of the 1988 State and Municipalities Responsibility for Damage Act (“the SMRDA”), as amended in July 2006, provides as follows:

“The State and the municipalities shall be liable for damage caused to individuals and legal persons by unlawful decisions, actions or omissions by their organs and officials committed in the course of or in connection with the performance of administrative action.”

The relevant extracts from the Recommendation on the European Prison Rules read as follows:

“70.1 Prisoners, individually or as a group, shall have ample opportunity to make requests or complaints to the director of the prison or to any other competent authority.

70.2 If mediation seems appropriate this should be tried first.

70.3 If a request is denied or a complaint is rejected, reasons shall be provided to the prisoner and the prisoner shall have the right to appeal to an independent authority.

70.4 Prisoners shall not be punished because of having made a request or lodged a complaint.

70.7 Prisoners are entitled to seek legal advice about complaints and appeals procedures and to legal assistance when the interests of justice require.”


Violation of Art. 5-3 with regard to the right to be brought promptly before a judge or other officer;Violation of Art. 5-3 with regard to the length of pre-trial detention;Violation of Art. 5-4;Violation of Art. 8 with regard to correspondence;Violation of Art. 8 with regard to family life;No separate issue under Art. 34;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings

On 22 November 1995 the Wrocław-Stare Miasto District Prosecutor (Prokurator Rejonowy) charged the applicant with fraud committed together with several accomplices and detained him on remand for three months in view of the reasonable suspicion that he had committed the offence in question and the risk that he might obstruct the proper course of the proceedings.

On an unknown later date the applicant appealed to the Wrocław-Śródmieście District Court (Sąd Rejonowy) against the order for his detention. On 27 November 1995 he lodged a pleading supplementing his appeal. In that pleading, he submitted that his detention had been imposed by a prosecutor, a party to the proceedings, whereas under the Convention detention had to be ordered either by a judge or by another officer exercising judicial power.

On 5 December 1995 a single judge, sitting as the Wrocław-Śródmieście District Court, dismissed the appeal, finding that the applicant's detention had an adequate legal basis. The applicant did not participate in the court session, whereas the Wrocław-Stare Miasto District Prosecutor did.

On 28 November and 14 December 1995 the applicant asked the Wrocław-Śródmieście District Court to appoint a defence lawyer for him. That application was granted on 19 January 1996.

On 11 December 1995 the applicant asked the Wrocław-Stare Miasto District Prosecutor to release him. The application was dismissed on 12 December 1995 by the prosecutor at first instance and on 30 December 1995 on appeal. The authorities held that there was a reasonable suspicion that the applicant had committed the offence with which he had been charged. They also considered that holding him in detention was necessary to secure the proper conduct of the proceedings.

On 21 December 1995 the applicant made a further application for release. He complained about the prison conditions and maintained that his continued detention had severely affected his health. The prosecution asked medical experts to examine the applicant. The doctors made their report on 22 December 1995. They concluded that the applicant could receive adequate medical treatment in prison.

Basing themselves on that report, the authorities refused to release the applicant. The relevant decisions were made on 2 January 1996 by the prosecutor at first instance and on 24 January 1996 on appeal. The prosecutors, referring to the experts' report, held that the applicant's health did not militate decisively against his being kept in detention.

In the meantime, the Wrocław Regional Prosecutor (Prokurator Wojewódzki) took over the investigation from the Wrocław-Stare Miasto District Prosecutor.

On 5 February 1996 the applicant asked the Regional Prosecutor to release him in view of his bad health. He stressed that he was suffering from diabetes, high blood pressure and arteriosclerosis. He maintained that he did not receive proper medical treatment and diet in prison. The application was dismissed on 7 February 1996 by the prosecutor at first instance and on 21 February 1997 on appeal. The main ground on which the authorities relied was that, according to a medical report obtained on 6 February 1996, the applicant's general condition was not an obstacle to keeping him in detention.

On 15 February 1996, on an application made by the Wrocław Regional Prosecutor, the Wrocław-Śródmieście District Court prolonged the applicant's detention until 30 June 1996. The applicant appealed on 26 February 1996. He argued that he had never been brought before a judge at any stage of the proceedings relating to the lawfulness of his detention. On 1 March 1996 the Wrocław Regional Court (Sąd Wojewódzki) upheld the first-instance decision. The Wrocław Regional Prosecutor participated in the court session but neither the applicant nor his lawyer did.

On 18 March 1996 the applicant asked the Wrocław-Śródmieście District Court to release him under police supervision. The matter was referred to the Wrocław Regional Prosecutor because at the investigation stage only a prosecutor could deal with an application for release (see also paragraph 82). That application was rejected on 3 June 1996 at first instance and on 28 June 1996 on appeal. The prosecution considered that there was a reasonable suspicion that the applicant had committed the offence with which he had been charged. They also pointed out that there were no particular circumstances militating in favour of his release, as defined in Article 218 of the Code of Criminal Procedure.

On 6 May and 3 June 1996 the applicant again asked the Wrocław-Śródmieście District Court to release him under police supervision. Those applications, after having been referred to the Wrocław Regional Prosecutor, were dismissed by that prosecutor on 28 June 1996 and, on appeal, on 14 July 1996. The authorities considered that the original grounds given for the applicant's detention were still valid.

On 25 June 1996, on an application by the Wrocław Regional Prosecutor, the Wrocław-Śródmieście District Court prolonged the applicant's detention until 30 September 1996.

On 25 July and 5 August 1996 the applicant made further applications for release under police supervision to the Wrocław Regional Court, claiming a breach of Article 5 § 3 of the Convention in that he was neither tried within a reasonable time nor released pending trial.

On 30 August 1996 the court held a session and, after having heard the submissions of the Wrocław Regional Prosecutor, dismissed the applications in view of the reasonable suspicion that the applicant had committed the offence with which he had been charged and the need to ensure the proper conduct of the proceedings.

The applicant appealed on 5 September 1996. He submitted that the proceedings concerning his applications for release were not adversarial because he could not take part in any court session at which those applications were examined, whereas the prosecution could put forward any arguments they wished in his absence. On 16 September 1996 the Wrocław Court of Appeal (Sąd Apelacyjny), after having heard the prosecutor's submissions, upheld the first-instance decision and the reasons given therefor.

Meanwhile, on 9 August 1996, the Wrocław-Śródmieście District Court had considered the applicant's request for release, in which he had alleged a breach of Article 5 § 3 of the Convention in that after having been arrested he had not been brought before a judge. The court dismissed the request and held, inter alia, that the fact that the detention had been imposed by the prosecutor, i.e. a party to the proceedings, was not a factor that would justify releasing him. On 31 October 1996, on an appeal filed by the applicant, the Wrocław Regional Court quashed the decision of 9 August 1996 and held that, in accordance with the Law of 4 August 1996 on Amendments to the Code of Criminal Procedure (see also “Relevant domestic law and practice” below), only a regional court was competent to deal with the applicant's application for release.

The Regional Court further examined that application and rejected it on the ground of the reasonable suspicion that the applicant had committed the offence with which he had been charged. It also considered that the need to ensure the proper course of the proceedings and the likelihood of a severe sentence to be imposed on the applicant justified his being held in custody. The Wrocław Regional Prosecutor participated in the court session but neither the applicant nor his lawyer did.

The applicant appealed. On 22 November 1996 the Wrocław Court of Appeal held a session and, after having heard the prosecutor's opinion, upheld the first-instance decision and the reasons given therefor.

In the meantime, on 30 September 1996, the Wrocław Regional Prosecutor had lodged a bill of indictment with the Wrocław-Śródmieście District Court. The applicant was indicted together with 10 other persons on charges of aggravated fraud, appropriation of public property, receiving stolen goods, making a false declaration, and forgery. The case-file comprised 19 volumes.

The trial was listed for 18 and 19 December 1996. Meanwhile, on 21 November 1996 the court appointed a new lawyer for the applicant.

On 1 December 1996 the applicant asked the District Court to release him. He maintained that his detention had lasted an excessively long time and, what was more, he had previously been detained in other criminal proceedings for some two years. He had accordingly spent in custody in all more than three years. That, he stressed, had in reality amounted to serving a prison sentence. He relied on Article 5 § 3 of the Convention.

On 4 December 1996 his application was dismissed at first instance and on 31 December 1996 on appeal. The courts considered that the applicant should still be kept in custody in view of the severity of the sentence which might be imposed and the need to ensure the proper conduct of the proceedings.

On 18 December 1996 the court postponed the trial to 29 January 1997 because one of the applicant's co-defendants was ill.

On 19 December 1996 and, subsequently, on 13, 15 and 29 January 1997 the applicant made complaints about the conduct of his officially-appointed counsel and asked the trial court to appoint a new lawyer for him.

On 31 December 1996 the applicant again asked the court to release him under police supervision. On 7 January 1997 the application was dismissed in view of the need to ensure the proper conduct of the trial and the severity of the sentence that might be imposed on him.

On 15 January 1997 the applicant appealed, submitting that neither he nor his lawyer had been informed of, or summoned to, the court's session at which his application for release had been examined and that the relevant procedure did not comply with the requirements of Article 5 § 4 of the Convention. On the same day he asked the Regional Court to allow him to attend the session at which that court would deal with his appeal so that he could put forward his arguments.

On 17 January 1997 the Wrocław-Śródmieście District Court refused to proceed with the appeal since, under the recently amended provisions of the Code of Criminal Procedure, no appeal lay in law against a court decision on an application for release.

On 29 January 1997 the court postponed the trial to 20 February 1997 because a certain J.F., one of the applicant's co-defendants had failed to appear. The court severed the charges against J.F.

On 10 February and on 3, 10, 17 and 25 March, and on 1, 8 and 17 April 1997 the applicant made further unsuccessful applications for release under police supervision to the Wrocław-Śródmieście District Court. The applications were dismissed on 12 February and on 10, 12, 20 and 28 March, and on 4, 11 and 22 April 1997 respectively. The court considered that the applicant should still be kept in custody in view of the need to secure the proper conduct of the trial and the severity of the sentence which might be imposed, a sentence that ranged from 1 to 10 years' imprisonment.

On 20 February 1997 the trial was to start but the applicant made yet another complaint about the conduct of his officially-appointed counsel and the court adjourned the hearing, finding it necessary to appoint a new defence lawyer for him.

On 5 March 1997 the court adjourned the next hearing since E.Cz., one of the applicant's co-defendants, had failed to appear. The court ordered that E.Cz. would be brought by the police to the next hearing, which was listed for 19 March 1997. Yet on the latter date the trial was postponed because the presiding judge was ill.

The trial began on 10 April 1997. On 10 and 21 April 1997 the court heard evidence from the applicant.

At the hearing of 10 April 1997 the applicant again asked the court to release him under police supervision. The court rejected his application. It found that keeping him in custody was necessary to secure the proper conduct of the trial. The court also stressed that the severity of the sentence that might be imposed on the applicant was an important factor that argued against releasing him.

Subsequently and throughout the trial, the applicant made numerous – but likewise unsuccessful – applications for release. Between 14 May and 4 December 1997 he made 26 such applications and appealed against each refusal. The courts reiterated the grounds they had previously given for his continued detention.

The applicant also repeatedly challenged the impartiality of the trial judges and complained about the conduct of the registry clerk who was responsible for the record of the trial. From 12 May to 1 December 1997 he made 16 applications for the judges to be disqualified from dealing with his case.

After the hearing that was held 10 April 1997 (see paragraph 37 above), the next one was listed for 21 May 1997. On that day, the court heard evidence from the applicant's wife.

Subsequently, the court made an application under Article 222 § 3 of the Code of Criminal Procedure (see paragraphs 90-91 below) to the Supreme Court (Sąd Najwyższy), asking it to prolong the applicant's and Cz.S.'s detention for 6 further months.

In the meantime, hearings set for 18 June and 3 July 1997, had been cancelled; the former because J.S., one of the applicant's co-defendants, had failed to appear, the latter because the District Prosecutor and another co-defendant, E.Cz. had not been present.

On 12 and 13 July 1997 a massive flood-wave inundated the South-West of Poland, severely affecting Wrocław. A considerable part of the city was washed away or destroyed.

On 14 July 1997 the applicant complained to the Wrocław-Śródmieście District Court that his health was deteriorating very rapidly and that he was seriously affected by the harsh prison conditions resulting from the flood in Wrocław. He asked for release.

On the same day the applicant made a petition to the President of the Wrocław Regional Court, the President of Wrocław-Śródmieście District Court and the Wrocław-Śródmieście District Court. He complained that on 12 and 13 July 1997 a flood-wave had inundated the prison building up to the third floor. The light, electricity and sewage systems had been destroyed. There had been no drinking water, food or washing facilities. He and his fellow inmates were, in his words, kept like animals in unventilated, overcrowded and stinking cells. He asserted that an official tolerance for that situation amounted to inhuman and degrading treatment.

Subsequent hearings, which were to be held on 6 and 27 August 1997, did not take place because, on the first date, the defence counsel for J.S. and Cz.S had not been present and, on the second, J.S.'s counsel had not appeared and the police had not brought E.Cz. from prison.

The next hearing, scheduled for 9 September 1997, was postponed to 13 October 1997 because E.Cz. failed to appear.

On 13 October 1997 the hearing was nevertheless adjourned since E.Cz. and one of the judges sitting in the trial chamber were absent. The presiding judge ordered, however, that E.Cz., on account of his repeated failure to comply with the court order, be searched for by a “wanted” notice and detained pending trial.

On the same day the court made the second application under Article 222 § 4 of the Code of Criminal Procedure to the Supreme Court, asking it to prolong the applicant's and Cz.S.'s detention for a further period of six months. In the reasoning, the court reiterated the grounds previously given for the applicant's detention. It further referred to the risk that he might induce witnesses to give false testimonies or to obstruct the trial by other unlawful means, and the likelihood of a heavy penalty being imposed on him. In that connection, the court stated that the applicant, when giving evidence, had refused to reveal names of certain clients of his company and stated that he would not do so unless he had considered it to be pertinent. The court next pointed out that the applicant's detention should continue because there were no special circumstances justifying his release, as defined in Article 218 of the Code of Criminal Procedure. It also stressed that it still needed to obtain voluminous evidence. In its opinion, all those above-mentioned obstacles made it impossible for it to give judgment within the terms referred to in Article 222 § 3 of the Code of Criminal Procedure.

On 27 October 1997 the applicant applied to the President of the Criminal Chamber of the Supreme Court, asking that he be brought to the session concerning the prolongation of his detention beyond the statutory time-limit, so that he could present his arguments. He relied on Article 6 § 3 (c) of the Convention and a number of constitutional provisions, notably those stipulating that self-executing provisions of an international treaty took priority over domestic law. He also complained that the District Court had not served a copy of the application of 13 October 1997 on him and that, in consequence, he could not contest effectively the grounds for the prolongation his detention given by that court.

On 3 November 1997 the applicant received a copy of that application. On 4 November 1997 he prepared a statement addressed to the President of the Criminal Chamber of the Supreme Court and once again asked that he be brought from prison to the session concerning the prolongation of his detention. He also complained about the conduct of the presiding judge. He stressed that the judge was not fair in considering that he should be held in custody inasmuch as the trial had to be postponed only because of his released co-defendants' repeated failure to appear before the court. In that context, the applicant pointed out that the court would have avoided the delays caused by the conduct of those co-defendants if it had severed promptly the charges against them.

On 6 November 1997 the District Court cancelled a hearing as the Supreme Court had not yet examined the application of 13 October 1997 and had not returned the case-file.

On 13 November 1997 the Supreme Court held a session at which it dealt with that application. It prolonged the applicant's detention until 30 March 1998.

At the beginning of the session the Supreme Court considered the applicant's motion in which he asked it to be brought before it and allowed to present his arguments. The State Prosecutor (Prokurator Krajowy) was summoned to, and took part in, the session. The applicant's representative was not summoned. After having heard the Prosecutor's arguments (who opposed the motion), the Supreme Court rejected the applicant's request.

Referring to the grounds for the extension of the applicant's detention beyond the statutory time-limit, the Supreme Court held that the circumstances adduced by the District Court showed that it was likely that he would induce the witnesses to give false testimonies or otherwise obstruct the trial. It further found that, given the fact that the case was of a particular complexity and that the trial court had to obtain various evidence, the applicant should still be held in custody in order to secure the proper conduct of the trial. Lastly, the Supreme Court pointed out that despite the factors that had to date contributed to the prolongation of the trial, the District Court should nevertheless accelerate the proceedings.

The trial was to restart on 15 December 1997 but it was postponed to 12 January 1998 because the police had not brought E.Cz. from prison and J.S.'s counsel had not appeared before the court.

On 5 January 1998 the District Court dismissed the applicant's application for his detention to be lifted and replaced by another preventive measure. The court considered that the applicant should be held in custody because a severe penalty might be imposed on him. It stressed that the applicable sentence ranged from 1 to 10 years' imprisonment. It further considered that the fact that the applicant had refused to reveal the identity of some of his company's clients showed that, had he been released, he would have induced witnesses to give false testimonies or otherwise obstructed the proper course of the trial.

On 12 January 1998 the court cancelled a hearing because the police had not brought the applicant and E.Cz. from prison. On the same day the applicant made an application for release, asking the court to vary the preventive measure imposed on him. He maintained that his prolonged detention was putting a severe strain on himself and on his family.

The applicant made a further, similar application on 19 January 1998, stating that he “would be very grateful if [he] could obtain an explanation as to what for and for whom [he] was needed to be prison”. He submitted two further applications in January and two in February 1998.

The court dismissed those applications on 20, 28 and 30 January, and on 6 and 18 February 1998, respectively. The reasons for those decisions were in essence identical to those given for the decision of 5 January 1998 (see paragraph 56 above).

On 5 February 1998 the court cancelled a hearing. On 23 February 1998 it decided to conduct the trial again from the beginning and to rehear all evidence that had so far been obtained. The presiding judge read out the records of the evidence heard from the applicant on 10 and 21 April 1997.

On 9 March 1998 the applicant was released pending trial.

On 16 December 1999 the Wrocław-Śródmiescie District Court gave judgment. It convicted the applicant as charged and sentenced him to 3 years' imprisonment and a fine.

During his detention, the applicant received many letters, including those from his lawyers, without envelopes.

From 6 December 1995 to 21 July 1997 the applicant sent 61 letters to the Commission, of which 46 were opened and stamped “censored” (ocenzurowano) by the Polish authorities before being sent on.

On 9 February 1996 the Secretariat of the Commission sent to the applicant a letter together with an application form and the relevant enclosures. The official stamps made by the authorities indicated that the letter was delivered to Wrocław Prison on 4 March 1996, sent to the Wrocław Regional Prosecutor on 5 March 1996, and opened and censored by that prosecutor on 6 March 1996.

On 18 March 1996 the applicant sent a letter to the Wrocław Regional Bar Council (Okręgowa Rada Adwokacka). On 20 March 1996 the authorities opened the letter and stamped it “censored”.

In his letter of 15 April 1996 the applicant complained to the Commission that he would not be able to submit the application form within the period of six weeks referred to in the Commission's letter of 9 February 1996 because the authorities had opened and censored that letter and its delivery had been delayed. He also complained that the authorities of Wrocław prison had refused him any assistance in preparing copies of the relevant documents and that, for that reason, he could not submit the application within the prescribed time-limit. However, he filed the form on 15 March 1996. It was posted, with enclosures, on 15 May 1996. It was received at the Commission's secretariat on 24 May 1996.

On 14 August 1996 the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment sent a letter to the applicant. On 28 August 1996 the authorities opened the letter. The envelope bears the stamp “censored”.

On 29 November and 2 December 1996 the applicant sent two letters to the Wrocław Court of Appeal. The envelopes were cut open. They bear the stamp “censored”.

On 16 January 1997 the applicant sent a letter to his wife. The authorities opened that letter and put the stamp censored on it.

On 27 October and 4 and 12 November 1997 the applicant submitted to the prison authorities two letters addressed to the President of the Criminal Chamber of the Supreme Court. In the letter of 27 October 1997 he asked the Supreme Court to order that he be brought to the session concerning the examination of the application for his detention to be prolonged (see paragraph 51 above). All the envelopes bear the stamp “censored”. The post-mark reveals that the letter of 27 October 1997 was sent out on 4 November 1997 and the two other letters on 25 November 1997.

On 27 November 1997 and on 5 January 1998 Mr Cichoń's law firm received letters from the applicant. The postmark on the envelope of the first letter is unreadable. The second letter was posted on 21 December 1997. On both envelopes there were hand-written notes made with a red marker. Those notes read: “censored”.

On 1 December 1997 and 16 January 1998 the applicant handed in two further letters to the President of the Criminal Chamber of the Supreme Court to the prison authorities. On both envelopes there was a hand-written note that read: “censored”. The post-marks show that the letters were sent out on 8 December 1997 and on 23 January 1998, respectively.

On 10 August 1996 the Wrocław-Śródmieście District Court ordered that the applicant should not be allowed to have any personal contact with his wife in view of the fact that in the meantime she had been charged with fraud in which the applicant had also been involved. That restriction included a prohibition of supervised family visits and of communication by a prison internal phone. Before that date their personal contact had not been restricted.

On 30 January 1997 the applicant requested the Wrocław District Court to grant his wife a permit to visit him in prison as they had had no personal contact since 10 August 1996. The application was dismissed on 7 February 1997 without any reasons being given.

On 7 February 1997 the applicant complained to the President of the Wrocław Regional Court that not only had all his letters to his wife been censored but some of them also intercepted or delayed and that he had not even been allowed to make phone calls to his wife. He submitted that these facts taken together with the absolute prohibition on any personal contact with her had amounted to inhuman treatment.

On 10 February 1997 the applicant unsuccessfully requested the Wrocław-Śródmieście District Court to stop the censorship of his letters to his wife.

On 24 March 1997 the applicant, likewise unsuccessfully, asked the court to allow his wife to visit him in prison.

On 11 April 1997 he made a similar application, submitting that at the hearing of 10 April 1997 the court had heard evidence from him and he had explained all the circumstances relating to his the charges laid against his wife. The court dismissed the application on 18 April 1997. No reasons for that decision were given.

Subsequently, on 22 and 28 April and 8, 20 and 28 May 1997 the Wrocław-Śródmieście District Court, without giving any reasons for its decisions, dismissed five further applications in which the applicant asked to be allowed to see his wife. He argued that the prolonged and drastic restrictions on their contact were cruel and inhuman and had severely affected his family life. In his application of 22 May 1997, the applicant stressed that since the court had heard evidence from his wife on 21 May 1997 (see also paragraph 41 above), there was no further justification to continue the harsh measures imposed on their personal contact. He relied on Articles 3 and 8 of the Convention.

On 16 June 1997 the Wrocław-Śródmieście District Court dismissed two further, similar applications made by the applicant on 5 and 12 June 1997, holding that the prohibition on any personal contact between him and his wife was justified by the risk that they might induce one another to give false testimonies before the court or obstruct the proper course of the proceedings.

The applicant's wife was allowed to visit him in prison on 9 August 1997. That visit took place in the presence of the prison guard.

At the material time the rules governing detention on remand were contained in Chapter 24 of the Law of 19 April 1969 – Code of Criminal Procedure (“the Code”) (Kodeks postępowania karnego) – entitled “Preventive measures” (Środki zapobiegawcze). The Code is no longer in force. It was repealed and replaced by the Law of 6 June 1997 (commonly referred to as the “New Code of Criminal Procedure”), which entered into force on 1 September 1998.

Until 4 August 1996 (i.e. the date on which the Law of 29 June 1995 on Amendments to the Code of Criminal Procedure and Other Criminal Statutes (“the 29 June 1995 Law”) entered into force) at the investigation stage of criminal proceedings detention on remand was imposed by a prosecutor.

Article 210 §§ 1 and 2 of the Code (in the version applicable at the material time) stated:

“1. Preventive measures shall be imposed by the court; before a bill of indictment has been lodged with the competent court, the measures shall be imposed by the prosecutor.

A prosecutor may impose a preventive measure only with respect to a person who has been questioned in the case as a suspect. Before ordering detention on remand or deciding on bail the prosecutor shall personally hear the suspect.”

A detainee could, under Article 212 § 2, appeal against a detention order made by a prosecutor to the court competent to deal with his case; however, he was not entitled to be brought before the court dealing with his appeal.

The Code listed as “preventive measures”, inter alia, detention on remand, bail and police supervision.

Article 209 set out the general grounds justifying imposition of the preventive measures. That provision read:

“Preventive measures may be imposed in order to ensure the proper conduct of proceedings if the evidence against the accused sufficiently justifies the opinion that he has committed a criminal offence.”

Article 217 § 1 defined grounds for detention on remand. The relevant part of this provision, in the version applicable until 1 January 1996, provided:

“1. Detention on remand may be imposed if:

(1) there is a reasonable risk that an accused will abscond or go into hiding, in particular when he has no fixed residence [in Poland] or his identity cannot be established; or

(2) there is a reasonable risk that an accused will attempt to induce witnesses to give false testimony or to obstruct the proper course of proceedings by any other unlawful means; or

(3) an accused has been charged with a serious offence or has relapsed into crime in the manner defined in the Criminal Code; or

(4) an accused has been charged with an offence which creates a serious danger to society.

On 1 January 1996 sub-paragraphs 3 and 4 of Article 217 § 1 were repealed and the whole provision was redrafted. From that date onwards the relevant sub-paragraphs read:

“(1) there is a reasonable risk that an accused will abscond or go into hiding, in particular when his identity cannot be established or he has no permanent abode [in Poland]; or

(2) [as it stood before 1 January 1996].”

Paragraph 2 of Article 217 provided:

“If an accused has been charged with a serious offence or an intentional offence [for the commission of which he may be] liable to a sentence of a statutory maximum of at least eight years' imprisonment, or if a court of first instance has sentenced him to at least three years' imprisonment, the need to continue detention in order to secure the proper conduct of proceedings may be based upon the likelihood that a heavy penalty will be imposed.”

The Code set out the margin of discretion in maintaining a specific preventive measure. Articles 213 § 1, 218 and 225 of the Code were based on the precept that detention on remand was the most extreme preventive measure and that it should not be imposed if more lenient measures were adequate.

Article 213 § 1 provided:

“A preventive measure [including detention on remand] shall be immediately lifted or varied, if the basis for it has ceased to exist or new circumstances have arisen which justify lifting a given measure or replacing it with a more or less severe one.”

Article 225 stated:

“Detention on remand shall be imposed only when it is mandatory; this measure shall not be imposed if bail or police supervision, or both of those measures, are considered adequate.”

The provisions for “mandatory detention” (for instance, detention pending an appeal against a sentence of imprisonment exceeding three years) were repealed on 1 January 1996 by the Law of 29 June 1995 on Amendments to the Code of Criminal Procedure and Other Criminal Statutes.

Finally, Article 218 stipulated:

“If there are no special reasons to the contrary, detention on remand should be lifted, in particular, if:

(1) it may seriously jeopardise the life or health of the accused; or

(2) it would entail excessively burdensome effects for the accused or his family.”

Until 4 August 1996, i.e. the date on which the relevant provisions of the Law of 29 June 1995 entered into force, the law did not set any time-limits on detention on remand in the court proceedings.

Originally, the provisions setting out time-limits for detention were to enter into force on 1 January 1996; however, their entry into force was eventually postponed until 4 August 1996.

Article 222 of the Code of Criminal Procedure in the version applicable after 4 August 1996 provided, in so far as relevant:

“3. The whole period of detention on remand until the date on which the court of first instance gives judgment may not exceed one year and six months in cases concerning offences. In cases concerning serious offences [offences for the commission of which a person is liable to a sentence of a statutory minimum of at least three years' imprisonment] this period may not exceed two years.

In particularly justified cases the Supreme Court may, on an application made by the court competent to deal with the case, ... prolong detention on remand for a further fixed period exceeding the time-limits set out in paragraphs. 2 and 3, when it is necessary in connection with a suspension of the proceedings, a prolonged psychiatric observation of the accused, when evidence needs to be obtained from abroad or when the accused has deliberately obstructed the termination of the proceedings in the terms referred to in paragraph 3.”

On 28 December 1996, by virtue of the Law of 6 December 1996, paragraph 4 of that Article was amended and the grounds for prolonging detention beyond the statutory time-limits included also:

“... other significant obstacles, which could not be overcome by the authorities conducting the proceedings...”

No appeal laid in law against the Supreme Court's decision on an application made under Article 222 § 4.

In cases where the Supreme Court dismissed such an application, a detainee had to be released. As long as it had not reached a decision, an application of the relevant court – which had a form of a decision (“postanowienie”) – was as a basis for the continued detention.

At the material time the relations between the authorities of the Polish State were set out in interim legislation, the Constitutional Act of 17 October 1992 (Mała Konstytucja). Article 1 of the Act affirmed the principle of the separation of powers in the following terms:

“The legislative power of the State shall be vested in the Sejm and the Senate of the Republic of Poland; the executive power shall be vested in the President of Poland and the Council of Ministers; and judicial power shall be vested in the independent courts.”

The Law of 20 June 1985 (as amended) on the Structure of Courts of Law (Ustawa o ustroju sądów powszechnych) in the version applicable at the material time provided, in section 1:

“1. Courts of law shall dispense justice in the Republic of Poland.

Courts of law shall be courts of appeal, regional courts and district courts.”

The Law of 20 June 1985 (as amended) on Prosecution Authorities (Ustawa o Prokuraturze) set out general principles concerning the structure, functions and organisation of prosecution authorities.

Section 1 of the Law, in the version applicable at the material time, stipulated:

“1. The prosecution authorities shall be the Prosecutor General, prosecutors and military prosecutors. Prosecutors and military prosecutors shall be subordinate to the Prosecutor General.

The Prosecutor General shall be the highest prosecution authority; his functions shall be carried out by the Minister of Justice.”

Chapter III of the Code entitled: “Parties to proceedings, defence counsel, representatives of the victims and representatives of society” described a prosecutor as a party to criminal proceedings. Under all the relevant provisions of the Code taken together, a prosecutor performed investigative and prosecuting functions in the course of criminal proceedings. As regards the general position of the prosecution, at the material time they were not independent from the executive since the Minister of Justice carried out the duties of the Prosecutor General.

At the material time there were three different legal avenues enabling a detainee to challenge the lawfulness of his detention: appeal to a court against a detention order made by a prosecutor; proceedings in which courts examined applications for prolongation of detention made by a prosecutor at the investigation stage and proceedings set in motion by a detainee's application for release.

As regards the last of these, Article 214 of the Code (in the version applicable at the material time) stated that an accused could at any time apply to have a preventive measure quashed or lifted. Such an application had to be decided by the prosecutor or, after the bill of indictment had been lodged, by the court competent to deal with the case, within a period not exceeding three days.

Under Article 88 of the Code of Criminal Procedure the presence of the parties at judicial sessions other than hearings was a matter for discretion of the court. Sessions concerning an application for release, a prosecutor's application for prolongation of detention or an appeal against a decision on detention on remand were held in camera. If the defendant asked for release at a hearing, the court made a decision either during the same hearing or at a subsequent session in camera.

At the material time the law did not give the detainee the right to participate in any court session concerning his detention on remand. In practice, only the prosecutor was informed of and could participate in such sessions. If he was present, he was entitled to adduce arguments before the court. The prosecutor's submissions were put on the record of the session (cf. Włoch v. Poland, no. 27785/95, judgment of 19 October 2000, §§ 6973).

Articles 82-90 of the Code of Execution of Criminal Sentences of 1969 (the Code is no longer in force; it was repealed and replaced by the “new” Code of Execution of Criminal Sentences of 5 August 1997, which entered into force on 1 September 1998) concerned the execution of detention on remand. Under Article 89 § 2 of the Code, a detainee might receive visitors in prison or might contact his family by prison internal phone provided that he had obtained permission in writing from the investigating prosecutor (at the investigation stage) or from the trial court (once the trial commenced). The authorities could order that a visit should take place in the presence of a prison guard.

Pursuant to the same provision, all correspondence of a detainee was, as a rule, censored, unless a prosecutor or a court decided otherwise. There was no legal means whereby a detainee could appeal against or, in any other way, contest censoring of his correspondence or the scope of that measure (cf. Niedbała v. Poland, no. 27915/95, judgment of 4 July 2000, §§ 33-36).


The applicant, Mr Brian Anthony Hill, is a British national, who was born in 1963 and lives in Gloucester (UK).

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

On 20 November 1986, the Provincial High Court of Valencia convicted the applicant and his brother of arson and sentenced them to a term of imprisonment of six years and one day. The applicant lodged an appeal (recurso de casación) to the Spanish Supreme Court. On 6 July 1988, the Supreme Court rejected the appeal. The amparo appeal to the Constitutional Court was rejected on 8 May 1989.

On 1 October 1992, the applicant and his brother submitted an application to the UN Human Rights Committee complaining that their right to a fair trial had been breached by the Spanish courts, namely the Provincial High Court of Valencia. Invoking several provisions of the International Covenant on Civil and Political Rights, they complained of the judicial authorities’ repeated refusal to grant bail before the trial, of the lack of competent interpreters during the interrogation by the police, that during the trial the legal aid lawyer had not defended them properly, and that his brother had been denied the right to defend himself in person.

On 2 April 1997, the Human Rights Committee found Spain to be in breach of Articles 9 § 3, 10 and 14 § 3 (c) and 5 of the Covenant. In the subsequent response given to the Human Rights Committee’ findings, the Spanish Government, on 9 October 1997, guaranteed the applicant the right to administrative and judicial redress by the way of domestic legal procedures and, if necessary, by means of supranational organisations.

On 10 June 1998, the applicant instituted two sets of proceedings. First, he claimed compensation from the Ministry of Justice for the defective operation of the machinery of justice under sections 292 and seq., of the Judicature Act (Ley Orgánica del Poder Judicial LOPJ). This appeal is still pending. Secondly, he lodged a judicial appeal with the Provincial High Court of Valencia asking for the annulment of the criminal proceedings. On 12 November 1999, the Provincial High Court of Valencia rejected the appeal on the ground that it had not been lodged within the specified time limit of five years after the notification of the judgment of 20 November 1986. Invoking Article 24 of the Spanish Constitution (right to a fair trial), the applicant lodged an amparo appeal with the Constitutional Court. By a decision of 13 November 2000, the Constitutional Court rejected the amparo appeal. The Court declared that granting compensation for the defective operation of the machinery of justice could be considered in certain circumstances as effective reparation in the case of a violation of Article 24 of the Constitution. However, when a person had been deprived of his liberty as in the present case, the grant of compensation was not the most appropriate way of remedying the infringement of fundamental rights. In these cases, the nullity appeal was not the only possibility and the applicant had at his disposal either an application for a retrial (recurso de revisión) or an application based on judicial error. The court came to the conclusion that the alleged violation could still be remedied. Consequently, it rejected the amparo appeal for non-exhaustion.


Karel Jungwiert;Mirjana Lazarova Trajkovska;Peer Lorenzen;Rait Maruste;Renate Jaeger;Zdravka Kalaydjieva;Zoryana Bortnovska

The first applicant, Ms Nataliya Mykhaylivna Vitrenko, is a Ukrainian national who was born in 1951 and lives in Kyiv. The second, third, fourth and fifth applicant are, respectively, Mr Volodymyr Romanovich Marchenko, Ms Liudmila Yakivna Bezugla, Mr Mykhailo Yuriyovich Sydoruk and Mr Petro Mykhailovych Romanchuk, who were born on different dates between 1949 and 1957 and are Ukrainian nationals. They all live in Kyiv. The respondent Government are represented by Mrs Y. Zaytsev, from the Ministry of Justice.

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

The first applicant is the leader of the Progressive Socialist Party of Ukraine. In 2002 the Nataliya Vitrenko Bloc political party nominated the applicants as candidates for the elections to the Verkhovna Rada of Ukraine (Parliament) that were to be held on 31 March 2002.

On 7 March 2002 the Studiya 1+1 TV Channel (the “1+1 Channel”) had scheduled a political debate on television. Ms Tymoshenko, the leader of another political party (the Yuliya Tymoshenko Bloc) was due to appear for the debate with the first applicant, but failed to do so.

As was later found in the court proceedings the 1+1 Channel cancelled this debate at the last minute by agreement with another TV channel, which planned to hold a debate between the first applicant and Ms Tymoshenko the following day. Therefore, Ms Tymoshenko was in fact not allowed on to the premises of the 1+1 Channel by the security.

Apparently being unaware of these facts, the first applicant reacted during the live broadcast to the non-appearance of her counterpart by saying “She [Ms Tymoshenko] definitely knew that I would prove that she was a thief (воровка), that because of her, Pavel Lazarenko and other oligarchs robbed Ukraine, there will be no way out for Ukraine until order is restored. She staged a piece of theatre here and she deliberately did not come here and she will never wash out her guilt, therefore tomorrow [on another TV channel] I will prove who she is. ... It is all planned with American technology. We will not participate in this provocation”.

Ms Tymoshenko lodged a complaint with the Central Electoral Commission that the first applicant had infringed electoral legislation and breached electoral rights. On 16 March 2002 the Central Electoral Commission gave an official warning to the first applicant finding that she had infringed electoral legislation (in particular, Article 51 § 1 of the Parliamentary Elections Act) and the principle of presumption of innocence enshrined in Article 62 of the Constitution of Ukraine. This warning was published in the Ukrainian national newspapers Golos Ukrainy and Uryadovyi kur'er.

The first applicant lodged a complaint against this decision with the Supreme Court. On 26 March 2002 the Supreme Court, composed of one judge, found against the first applicant. It also ruled that the Central Electoral Commission had acted lawfully and that the first applicant had infringed electoral legislation by publicly disseminating untrue statements about Ms Tymoshenko. In accordance with the procedural legislation in force at the material time this ruling was final and not subject to appeal. On 28 March 2002 a panel of three judges of the Supreme Court rejected the applicant's request for extraordinary review of this decision for lack of grounds.

Following these events, Ms Tymoshenko instituted defamation proceedings in the Obolonsky District Court of Kyiv (the “Obolonsky Court”) against the first applicant, seeking to protect her honour, dignity and business reputation and claiming that statements disseminated by the first applicant were untrue. She also requested the court to be given an opportunity to rebut these statements.

On 28 March 2002 the court held a hearing in which both parties participated. During the hearing the applicant challenged the videotape of her speech provided by the plaintiff. The court rejected this challenge by a separate ruling. The same day the first applicant tried to appeal against the separate ruling, but her appeal was rejected as that ruling was not subject to separate appeal. The first applicant's representative requested an adjournment of the hearing.

On 12 April 2002, during the next hearing, the first applicant lodged a petition with the court in which she requested the court to obtain from the General Prosecutor's Office and the State Tax Administration copies of the decisions related to investigation of the criminal cases against Ms Tymoshenko and other leaders of the United Energy Systems of Ukraine Company and violation of the tax legislation by them “[t]o confirm (на підтвердження) the words said by me with respect to [Ms] Tymoshenko Y. V. in the live broadcast of the 1+1 Channel during the TV debates on 7 March 2002”. This request was rejected on the ground that it was irrelevant to the proceedings in question.

The first applicant also requested the court to adjourn the hearing.

On 16 April 2002, during the next hearing, the first applicant lodged another, similar request with the court for documents from the General Prosecutor's Office and the State Tax Administration stating “[s]ince I used the word “thief” in its other generally accepted meaning, to confirm (на підтвердження) the words said by me with respect to [Ms] Tymoshenko Y. V. in the live broadcast on the 1+1” Channel during the TV debates on 7 March 2002...”. It was rejected on the same ground.

During the hearing the applicant's representative also requested the court to summon a representative of the Tax Administration who could explain about violations of the tax legislation by Ms Tymoshenko and her company. This request was also refused as irrelevant to the claim under examination.

Following refusal of her requests the applicant sought withdrawal of the judge. By a separate ruling the same day the challenge was rejected as unfounded.

During its next hearing, on 17 April 2002, the court decided to join the 1+1 Channel as co-defendant. That hearing was adjourned until 8 May 2002.

On 8 May 2002 the court postponed the hearing due to the absence of the first applicant and her representatives.

On 28 May 2002, having established that the first applicant and her representatives had failed to appear before the court for the second time without a plausible reason, the court decided to examine the case in their absence. The court found in part against the first applicant. In particular, it established that Ms Tymoshenko had never been convicted of theft or a similar criminal offence. Thus, the statements of the first applicant “she is a thief” and “she will never wash out her guilt” violated Article 62 of the Constitution of Ukraine (presumption of innocence). It also found untruthful the part of the first applicant's speech in which she had accused Ms Tymoshenko of deliberate failure to appear for the TV debate in question. The court ordered the 1+1 Channel to ensure that Ms Tymoshenko had 50 seconds of live broadcast to correct the statements disseminated about her by the first applicant. It also ruled that the first applicant had to pay for the 50-second broadcast which would be given to Ms Tymoshenko.

The first applicant appealed against this decision. She stated, in particular, that the term “thief” had been used to criticise the “political amorality” of Ms Tymoshenko's leadership of United Energy Systems of Ukraine in 1995-1997, and thus had been a value judgment. She further complained that the first-instance court had refused to obtain the evidence from the law-enforcement bodies that she had requested, had unlawfully refused her request for withdrawal of the judge and had held a hearing in her absence.

On 6 December 2002 the Kyiv Court of Appeal, having held a hearing in which all parties participated, upheld the decision of the Obolonsky Court. The court also considered that the refusal of the request for withdrawal of the judge and the decision to continue examination of the case in the applicant's absence were in compliance with the relevant law.

On 13 June 2003 a panel of three judges of the Supreme Court upheld the decisions of the lower courts.

On 31 March 2002 the Central Electoral Commission informed the applicants' party that they had received approximately 3.22 % of the ballots, while the electoral threshold was 4%. The applicants alleged that the election results had been falsified. On 10 April 2002 they lodged a complaint with the Central Electoral Commission against its resolution announcing the results of the elections. They further sought annulment of the election results and demanded that the Central Electoral Commission announce new elections. The Central Electoral Commission allegedly failed to react promptly to this complaint. On 12 April 2002 the applicants lodged a complaint against the Central Electoral Commission with the Supreme Court challenging this omission. On 15 April 2002 their claim was rejected on formal grounds as they had failed to comply with the procedural requirements stipulated by law.

As the Central Electoral Commission had not accepted the results of the elections in the majority electoral constituencies nos. 18, 35 and 201, new elections were scheduled there for 14 July 2002.

On 22 July 2002 the Central Electoral Commission adopted resolution no. 975, rejecting the first applicant's complaint against the resolution of the regional electoral commission of 15 July 2002 announcing that Mr S. had obtained a majority of the votes during the repeated elections of 14 July 2002. On 22 July 2002 the first applicant lodged a complaint with the Supreme Court against the Central Electoral Commission challenging its decision, on the grounds that Mr S. and his representatives had allegedly bribed voters. On 30 July 2002 the Supreme Court found against the first applicant. In accordance with the procedural legislation in force at the material time this ruling was final and not subject to appeal.

On 8 December 2002 additional parliamentary elections were held in constituency no. 82.

On 13 December 2002 the Central Electoral Commission adopted resolution no. 1030, rejecting the first applicant's complaint against the resolutions of the regional electoral commission of 9 December 2002 announcing that Mr Kh. had obtained a majority of the votes during the repeated elections of 8 December 2002 and rejecting the applicant's complaints about the election results. The first applicant lodged a complaint with the Supreme Court against the Central Electoral Commission. On 23 December 2002 the Supreme Court found against the first applicant. In accordance with the procedural legislation in force at the material time this ruling was final and not subject to appeal.

Additional elections had been announced in constituency no. 206 and the first applicant was registered as a candidate on 24 April 2003.

On 4 June 2003 the Deputy Prosecutor of the Chernigiv Region informed the constituency election commission about a violation of the electoral law in publishing campaign materials by the first applicant.

On 5 June 2003 the constituency commission, having established that Mr M. - the authorised agent of the first applicant in the election campaign - had published campaign material in support of the first applicant in violation of the electoral law, decided to cancel the applicant's registration for repeated violation of the requirements of the electoral law (resolution no. 68).

On 6 June 2003 the Desnyansky District Court of Chernigiv Region considered a complaint from Mr. P, another candidate from the same constituency, of violation of electoral legislation by the first applicant, namely several publications of campaign materials in the Dosvitni Ogni newspaper which were paid for with money not included in the official election expenses of the candidate. The court found against the applicant, confirming a violation of electoral legislation. It based its findings on the facts that the newspaper published this material at its own expense, that this newspaper was founded by the party of which the applicant was a leader, and that the editor-in-chief of the newspaper was Mr M. - the authorised agent of the first applicant in the election campaign.

On 7 June 2003 the Central Electoral Commission cancelled resolution no. 68 of the constituency commission of 5 June 2003, having established that the constituency commission had misinterpreted relevant legislative provisions.

On 7 June 2003 the constituency commission, by its resolution no. 72, cancelled the applicant's registration as a candidate on the basis of the court's decision of 6 June 2003 and in accordance with Article 49 § 3 (12) and (14) of the Parliamentary Elections Act. The same day the Central Electoral Commission upheld the resolution of the constituency commission by its resolution no. 50. The applicant appealed to the Supreme Court.

On 7 June 2003 the Supreme Court, in the presence of the first applicant's representatives and members of the Central Electoral Commission, considered the applicant's appeal and found that the decisions of the relevant electoral commissions were well-founded and in compliance with law. Therefore, the Supreme Court upheld the decisions on the cancellation of the applicant's registration.

Article 32

... Everyone is guaranteed judicial protection of the right to rectify incorrect information about himself or herself and members of his or her family, and of the right to demand that any type of information be rectified, and also the right to compensation for material and moral damage inflicted by the collection, storage, use and dissemination of such incorrect information.

Article 62

A person is presumed innocent of committing a crime and shall not be subjected to criminal punishment until his or her guilt is proved through legal procedure and established by a court verdict of guilty.

Article 77

...The procedure for conducting elections of People's Deputies of Ukraine shall be established by law.

Article 32. Financing of Elections of Deputies

Expenditures for the preparation and conduct of elections of deputies shall be incurred exclusively from the funds of the State Budget of Ukraine as well as the resources of election funds of parties (blocs) the candidates for deputy of which are registered in the multi-mandate constituency, and candidates for deputy registered in single-mandate constituencies.

In order to finance their election campaign, a party (bloc) of the candidates for deputy, which are registered in the multi-mandate constituency, as well as candidates for deputy registered in single-mandate constituencies, shall establish their election funds, which shall be formed in accordance with the procedure set forth by this Law.

Article 49. Cancellation of the Decision on Registration of a Candidate (Candidates) for Deputy

A constituency election commission shall cancel its decision regarding the registration of a candidate for deputy in the following cases:

12) establishment by the court that the candidate for deputy used other sources of financing besides the resources of his/her election fund to budget the election campaign;

14) if a candidate for deputy, upon getting a warning from the constituency or the Central Election Commissions, mentioned in paragraph four of this Article, repeatedly violated the same requirements of this Law.

In the event of the violation of other provisions of this Law on the part of a candidate for deputy or a party (bloc), a corresponding election commission may issue a warning, which shall be made public in the state-owned and municipal media or in a different way...

Article 51. Forms and Means of Election Campaign

Campaigning may be performed in any forms and by any means not conflicting with the Constitution of Ukraine and laws of Ukraine. Citizens of Ukraine shall have the right to discuss political programmes of parties (blocs), political, business, and personal features of candidates for deputies freely and thoroughly, to campaign in support or against parties (blocs), candidates for deputies...

Article 7. Protection of honour, dignity and reputation

A citizen or an organisation shall be entitled to demand in a court of law that a statement be refuted if it is not true or is set out untruthfully, degrades their honour and dignity or reputation, or causes damage to their interests, unless the person who disseminated the statement proves that it is truthful.

... Statements disseminated about a citizen or an organisation that do not conform to the truth and cause damage to their interests, honour, dignity or reputation shall be subject to rectification, and pecuniary and non-pecuniary damage can be recovered. A limitation period of one year shall apply to claims concerning rectification of such data and compensation.

The relevant extracts of the resolution read as follows:

“The Committee of Ministers ...

Recommends to member governments, as a minimum, that the position of the individual in relation to the media should be in accordance with the following principles:

In relation to information concerning individuals published in any medium, the individual concerned shall have an effective possibility for the correction, without undue delay, of incorrect facts relating to him which he has a justified interest in having corrected, such correction being given, as far as possible, the same prominence as the original publication.

In relation to the information concerning individuals published in any medium, the individual concerned shall have an effective remedy against the publication of facts and opinions which constitute:

ii. an attack upon his dignity, honour or reputation ...”

The relevant extracts of the recommendation read as follows:

“1. Scope of the right of reply

Any natural or legal person, irrespective of nationality or residence, should be given a right of reply or an equivalent remedy offering a possibility to react to any information in the media presenting inaccurate facts about him or her and which affect his/her personal rights.”