CASE OF DOROZHKO AND POZHARSKIY v. ESTONIA

Violation of Art. 6-1;Non-pecuniary damage - award

Isabelle Berro-Lefèvre;Mark Villiger;Mirjana Lazarova Trajkovska;Peer Lorenzen;Rait Maruste;Renate Jaeger;Volodymyr Butkevych

Mr Aleksandr Dorozhko, the applicant in application no. 14659/04 (“the first applicant”), was born in 1960. Mr Vyacheslav Pozharskiy, the applicant in application no. 16855/04 (“the second applicant”), was born in 1981. Both of them are currently serving prison sentences.

The applicants were arrested around midnight on the night of 8 to 9 November 2002. They were initially suspected of having caused grievous bodily harm and of temporary unauthorised use of other persons’ movable property (cars). Subsequently, the applicants were also charged with robbery.

On 20 November 2002 the Tallinn City Court (linnakohus) refused to extend the applicants’ detention. The second applicant was released. The first applicant, however, was not released by the police; he was kept under arrest and declared under suspicion of an offence of threatening behaviour. On 22 November 2002 the City Court authorised his further detention.

In the meantime, on 20 November 2002, the police chief inspector I. P. ordered that a team of investigators be set up for the criminal case concerned. The team consisted of I. P. himself as the head of the team and three other senior police inspectors: L., G. and K.

In the submission of the Government, the further criminal investigation was practically solely carried out by police investigator L., while only a few procedures were performed by investigators G. and K. The criminal case file did not contain any indication that I. P. personally performed any investigative actions or that he issued any instructions or guidelines to the members of the team.

Nevertheless, the first applicant was informed by the Tallinn Police Prefecture and the Public Prosecutor’s Office during the pre-trial investigation, in response to his complaints, that I. P. was a member of the team of investigators set up for the criminal case concerned and he had the powers to conduct all investigative activities.

On 14 March 2003 the Lääne County Court (maakohus) authorised the second applicant’s detention until 14 May 2003 in different criminal proceedings not related to the present case.

In the meantime, on 3 February and again on 29 April 2003, after the Public Prosecutor’s Office had amended the charges, the applicants were committed for trial by the Tallinn City Court. The case was heard by a court composed of a professional judge, E. P., and two lay judges. The hearings before the City Court took place on several dates.

At a City Court hearing on 30 May 2003 the first applicant said in his closing statement that because he had refused to cooperate with the police investigators B., I. P. and K., the charges against him had been changed. He also said that although a judge had ordered his release, police investigators I. P. and K. had not released him from the police cell but had detained him again on suspicion of threatening behaviour.

On 30 May 2003 the City Court convicted the applicants of robbery and temporary unauthorised use of other persons’ movable property. The first applicant was also convicted of an offence of threatening behaviour. The first applicant was sentenced to nine years’ and the second applicant to seven years’ imprisonment.

The applicants and the first applicant’s lawyer appealed against the judgment. The applicants in their appeals challenged, inter alia, the impartiality of the City Court’s judge E. P., as her husband, I. P., had headed the team of investigators which had been set up for the investigation of the criminal case concerned. The second applicant noted that this issue had been raised at a City Court hearing but judge E. P. had not withdrawn.

On 6 June 2003 the first applicant’s wife also lodged a complaint to the Court of Appeal, arguing, inter alia, that judge E. P. should have withdrawn because her husband had been involved in the pre-trial investigation.

At the hearing before the Court of Appeal on 9 October 2003 the first applicant raised the issue of impartiality of the City Court judge E. P. According to the record of the hearing, he stated as follows:

“The presiding judge was [E. P.]. Her husband was the person who carried out the preliminary investigation. I only learned about it after the court hearing. This fact affected the impartiality of the judge. It could also be seen from the record [of the court hearing] because it is imprecise. ... It affected the judicial investigation. The judge did not grant my requests, everything happened very quickly. She[] wanted to have me imprisoned. I did not request the removal of the judge. I did not know at that time that her husband had been the head of the preliminary investigation.”

According to the prosecutor the applicants had not been aware that E. P. and I. P. were married to each other when the City Court began to hear the case. In her submission they had become aware of it later, by the time of the subsequent hearings. However, no requests for removal of the judge had been made.

At the end of the Court of Appeal hearing the second applicant said that I. P. had interrogated him. He added: “[I. P.] threatened me [and said] that if I confessed, I would not go to prison.”

On 9 October 2003 the Tallinn Court of Appeal (ringkonnakohus) acquitted the applicants in respect of the second count of temporary unauthorised use of other persons’ movable property. It upheld the City Court’s judgment in the remaining part.

Referring to Article 20 § 1 of the Code of Criminal Procedure (Kriminaalmenetluse koodeks), which concerned grounds for disqualification of a judge, the Court of Appeal found that the applicants’ allegations did not warrant quashing the City Court’s judgment and referring the case to the first-instance court for a new trial. Moreover, it was noted that none of the parties to the proceedings had requested judge E. P.’s disqualification during the proceedings in the City Court; neither had the impartiality of the judge nor that of the court been put into doubt in the appeals. The first applicant had submitted at the Court of Appeal hearing that he had become aware of the fact that I. P. was the judge’s husband during the court proceedings. The Court of Appeal found, however, that the judge’s possible relationship with an official participating in the preliminary investigation did not prove the judge’s partiality. It noted that although I. P. had been the head of the team of police officers investigating the case, the investigation had in fact been carried out by another police investigator. None of the reports concerning various investigative activities (uurimistoimingu protokoll) in the case file had been drawn up by I. P. Moreover, besides judge E. P., two lay judges had taken part in deciding the case. The Court of Appeal considered that the allegation concerned was artificial and had been submitted with a view to delaying the proceedings.

In his appeal to the Supreme Court (Riigikohus), the first applicant argued that judge E. P. could not have been unaware of the fact that her husband had led the team of investigators and that the applicant had made several complaints during the preliminary investigation to the Public Prosecutor’s Office against the police investigators, including I. P. He asserted that judge E. P. should have withdrawn from hearing the case. In his view the judicial investigation in the City Court had not been impartial; the lack of impartiality had particularly been reflected in the severity of the sentence. The applicant had not requested E. P.’s removal because he had found out too late and through informal sources that she was married to I. P. Nevertheless, he was of the opinion that his failure to request the judge’s removal should not deprive him of the right to impartial adjudication of the charges against him.

The second applicant argued in his appeal to the Supreme Court that judge E. P. had had no right to administer justice in respect of him because she was the wife of the head of the team of police investigators.

On 21 January 2004 the Supreme Court refused the applicants leave to appeal.

According to Article 20 § 1 of the Code of Criminal Procedure (Kriminaalmenetluse koodeks), as in force at the material time, a judge could not participate in criminal proceedings and had to be disqualified if he or she had a direct or indirect personal interest in the case or if other circumstances gave reasons to doubt his or her impartiality. Article 20 § 3 provided that a person who was related to an official conducting a preliminary investigation or court proceedings in a criminal case could not participate in the proceedings as an expert, specialist, defence counsel or representative of a victim, plaintiff or defendant, or as an interpreter or translator.

Article 26 § 1 (2) of the Code stipulated that a person whose spouse had participated in the proceedings of a criminal case (menetlusosaline kriminaalasjas) could not act as a judge in that case. The same applied in respect of a person with regard to whom facts were presented which gave reason to doubt his or her impartiality (Article 26 § 1 (4)).

Article 34 § 1 of the Code provided that participants in the criminal proceedings (kriminaalmenetluse osaline; menetlusosaline) were: suspect, accused, accused at trial and his or her defence counsel, prosecutor in court proceedings, and victim, plaintiff, defendant and their representative.

In Article 107-1 § 1 of the Code the rights and obligations of a head of the investigation (uurimisjuht) were enumerated. He or she could monitor the activities of a preliminary investigator and give him or her instructions; form teams of investigators (uurimisgrupp); annul unlawful or unjustified orders of preliminary investigators; participate in the actions of preliminary investigators or personally perform actions in a criminal matter.

Under Article 178 of the Code a head of the investigation could form a team of investigators by his or her order. The head of the team of investigators (uurimisgrupi vanem) had to be named in the order. The latter had to coordinate the activities of the team of investigators.

Article 231 of the Code provided that after a judge had announced the panel of the court, he or she had to explain to the participants in the proceedings their right to request the judge’s or lay judges’ disqualification.

Article 232 of the Code stipulated that judges and lay judges had to withdraw from hearing of the case, and the participants in the proceedings had the right to request their disqualification, under the circumstances specified in Article 20 or 26 of the Code.


The applicant is a Turkish national, born in 1944 and living in Istanbul. He is represented before the Court by Mrs İmmihan Yaşar, Mr Talat Tepe, Mr Ahmet Akkuş and Mrs Naciye Kaplan, lawyers practising in Istanbul.

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

Until 1995 the applicant lived in the Kalkanlı village attached to the Yayladere district in the province of Bingöl. The applicant owns a piece of land and he had a house in the village.

In 1994 and 1995 the applicant, along with other villagers, was continually intimidated by the members of the security forces called “special team”. The villagers were subjected to food rationing imposed by the military commander of the district. The village was under military control and access to the village was subject to prior permission from the special teams. Subsequently, the majority of the villagers abandoned their village due to the pressure by the security forces.

In 1995 the applicant gave the keys of his house to the commander in the village before he went to Istanbul in order to spend the winter there. The applicant said to the commander that in case the security forces wanted to conduct a search in his house they could go in. He further said to the commander not to break the windows or the door of the house had they conduct a search. While in Istanbul the applicant learnt from his neighbours that on 24 March 1995 his house had been burnt down by the security forces. The applicant returned back to his village and saw that his house and all its contents had been burnt.

The applicant was told by a commander called Ali that his house had been burnt down by the terrorists.

A villager, G.A., who had witnessed the burning of the houses in the village, told the applicant that his house, along with the other houses in the village, had been burnt with explosives installed by the security forces. The other villagers also told the applicant that only the houses of those who refused to abandon the village had been burnt down. The villagers further told the applicant that a commander called Alpay had been conducting the burning of the houses.

On 3 April 1995 the applicant filed petitions with the offices of the Kığı public prosecutor, the Yayladere District Governor, and the Governor for the state of emergency region. He stated that his house had been burnt down on 24 March 1995. He requested that an investigation be initiated about the burning of his house and asked for compensation for his losses.

On 24 April 1995 the applicant filed petitions with the offices of the Prime Minister, the Minister of Interior and the Minister of State in charge of human rights. He requested that an investigation be initiated and that the perpetrators be identified about the burning of his house. He further requested compensation for his losses. The applicant received no replies to these applications.

In a letter dated 5 May 1995 to the Yayladere Heska Villages Solidarity and Culture Association (Yayaladere Heska Köyleri Dayanışma, Yardımlaşma ve Kültür Derneği) from the office of the Bingöl Governor it was stated that the villagers form the Haktanır, Yolgüden, Sürmelikoç, Kalkanlı and Aydınlar villages attached to Yayladere district had complained that in March 1995 they had been given twenty four hours by the security forces to abandon their villages. These villagers had further complained that their houses had been burnt by the security forces and requested that an investigation be initiated into their allegations. However, some of these houses had been destroyed by the winter weather and some of them had been intentionally burnt down by the villagers in order to obtain compensation from the authorities. The houses in the Kalkanlı village had been burnt down in the clashes with the PKK. The authorities were not responsible for the damages occurred.

On 16 May 1995 the office of the Yayladere District Governor sent a letter in reply to the applicant stating that the authorities were not responsible for the burning of the houses. The applicant’s house had been burnt in the clashes between the security forces and the terrorists on 24 March 1995. The applicant had alleged that he had left the keys of his house to the commander before he went to Istanbul. However, this allegation had been unsubstantiated.

On 21 August 1995 the public prosecutor at the Diyarbakır State Security Court decided to join the two applications that were previously registered with the office of the Kığı public prosecutor and that were transferred to his office. In his decision the prosecutor noted that the Kığı public prosecutor had issued a decision of lack of jurisdiction (görevsizlik kararı) on 2 May 1995 (decision no. 1995/25-9) concerning the clashes took place at the Kalkanlı station between the security forces and the terrorists on 24 March 1995. The prosecutor decided to register the investigation file related to this event at his office. The prosecutor further noted that the Kığı public prosecutor had issued a decision of lack of jurisdiction (görevsizlik kararı) on 8 August 1995 (decision no. 1995/24-23) concerning the burning of the applicant’s house. The prosecutor finally decided to register the two investigation files at his office under investigation file number 1995/2006.

On 18 July 1996 the applicant filed another petition with the office of the Yayladere District Governor. In this petition the applicant stated that he left his village in 1994 and that his house had been burnt on 5 May 1995. He also asked compensation for his losses.

On 25 July 1996 the applicant filed a petition with the office of the Prime Minister. In this petition the applicant stated that his house had been burnt in the clashes in April 1995. He asked compensation for the losses he had sustained due to the destruction of his properties.

Administrative liability

Article 125 of the Turkish Constitution provides as follows:

“All acts or decisions of the administration are subject to judicial review...

The administration shall be liable to indemnify any damage caused by its own acts and measures.”

The above provision is not subject to any restrictions even in a state of emergency or war. The latter requirement of the provision does not necessarily require proof of the existence of any fault on the part of the administration, whose responsibility is of an absolute, objective nature, based on a concept of collective liability and referred to as the theory of “social risk”. Thus the administration may indemnify people who have suffered damage from acts committed by unknown or terrorist authors when the State may be said to have failed in its duty to maintain public order and safety, or in its duty to safeguard individual life and property.

The principle of administrative liability is reflected in the additional section 1 of Law no. 2935 of 25 October 1983 on the State of Emergency, which provides:

“... actions for compensation in relation to the exercise of the powers conferred by this Law are to be brought against the administration before the administrative courts.”

Criminal responsibility

The Turkish Criminal Code makes it a criminal offence:

(a) to deprive an individual unlawfully of his or her liberty (Article 179 generally, Article 181 in respect of civil servants),

(b) to oblige an individual through force or threats to commit or not to commit an act (Article 188),

(c) to issue threats (Article 191),

(d) to make an unlawful search of an individual’s home (Articles 193 and 194),

(e) to commit arson (Articles 369, 370, 371, 372), or aggravated arson if human life is endangered (Article 382),

(f) to commit arson unintentionally by carelessness, negligence or inexperience (Article 383), or

(g) to damage another’s property intentionally (Articles 516).

For all these offences complaints may be lodged, pursuant to Articles 151 and 153 of the Code of Criminal Procedure, with the Public Prosecutor or the local administrative authorities. The public prosecutor and the police have a duty to investigate crimes reported to them, the former deciding whether a prosecution should be initiated, pursuant to Article 148 of the Code of Criminal Procedure. A complainant may appeal against the decision of the public prosecutor not to institute criminal proceedings.

If the suspected authors of the contested acts are military personnel, they may also be prosecuted for causing extensive damage, endangering human lives or damaging property, if they have not followed orders in conformity with Articles 86 and 87 of the Military Code. Proceedings in these circumstances may be initiated by the persons concerned (non-military) before the competent authority under the Code of Criminal Procedure, or before the suspected persons’ hierarchical superior (sections 93 and 95 of Law no. 353 on the Constitution and Procedure of Military Courts).

If the alleged author of a crime is an agent of the State, permission to prosecute must be obtained from local administrative councils (the Executive Committee of the Provincial Assembly). The local council decisions may be appealed to the Supreme Administrative Court; a refusal to prosecute is subject to an automatic appeal of this kind.

Provisions on compensation

Any illegal act by civil servants, be it a crime or a tort, which causes material or moral damage may be the subject of a claim for compensation before the ordinary civil courts.

Proceedings against the administration may be brought before the administrative courts, whose proceedings are in writing.


Violation of Art. 6-1 with regard to access to court;No separate issue under Art. 6-1 with regard to the length of the proceedings;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses (domestic proceedings) - claim dismissed;Costs and expenses partial award - Convention proceedings

The applicant company is owned by Mr Smail Smailagić who lived in Banja Luka, which is situated on the territory of the present day Republika Srpska, a part of Bosnia and Herzegovina, until 15 May 1992 when he fled to Croatia and went to live in Porat-Červar.

On 13 August 1992 the Croatian Military Police requisitioned a vehicle belonging to the applicant company.

According to the Government the vehicle had been requisitioned by the military authorities from Bosnia and Herzegovina. Upon the request by the military authorities from Bosnia and Herzegovina for the return of vehicles which had been requisitioned in Bosnia and Herzegovina for military purposes, in case that they were located in Croatia, the Croatian Ministry of Defence conferred the applicant company's vehicle after having found it. The vehicle was conferred to the Bosnian authorities on 19 August 1993 and has ever since been in their possession.

According to the applicant the vehicle was requisitioned by the Croatian authorities and conferred to the Croatian para-military forces in Bosnia and Herzegovina, the so-called Croatian Defence Council (Hrvatsko vijeće obrane). The applicant company repeatedly requested the Croatian Defence Council to return the vehicle, but to no avail.

On 11 October 1993 the applicant company filed a civil claim for damages in the amount of 15,600 German Marks (DEM) against the Republic of Croatia, with the Zagreb County Commercial Court (Okružni privredni sud u Zagrebu). It appears that the case was subsequently transferred to the Zagreb Municipal Court (Općinski sud u Zagrebu).

On 15 May 1995 the Republic of Croatia filed its reply denying the plaintiff's claim. It requested the court to stay the proceedings until the end of war in Croatia. It stated further that the vehicle had been requisitioned only temporarily for needs of the army and would be returned to the applicant company after the war.

At the hearing on 14 September 1995 the applicant company specified the claim for damages seeking 58,000 Croatian Kunas (HRK).

On 12 March 1998 the applicant company requested the Ministry of Justice to speed up the proceedings.

On 13 July 1998 the court decided that an expertise be carried out in order to establish the value of the vehicle in question. The applicant company was invited to pay an advance for the costs of the expertise.

On 31 August 1998 the case-file was assigned to an expert who submitted his opinion on 5 October 1998.

It appears that the defendant asked the court to stay the proceedings claiming that it was uncertain whether the applicant company still existed because the excerpt from the Banja Luka Court registry on the applicant company's legal status was quite old.

On 4 May 1999 the court invited the company's representative to submit a new excerpt from the relevant registry.

The applicant company's legal representative informed the court that he no longer represented the applicant.

On 5 July 1999 the applicant company requested the court to schedule a hearing.

On 19 July 1999 the applicant company's representative submitted an uncertified excerpt from the Banja Luka Court's registry dating from 1990.

On 25 August 1999 the court invited the applicant to submit a new excerpt, not older than six months, showing that Mr Smailagić was entitled to represent the applicant company.

On 6 November 1999 Parliament introduced a change of the Civil Obligations Act which provided that all proceedings concerning actions for damages resulting from acts of members of the Croatian army or police when acting in their official capacity during the war in Croatia were to be stayed.

On 10 December 1999 the court stayed the proceedings pursuant to the above change in law.

On 29 December 1999 the applicant company appealed against the above decision claiming that the Zagreb Municipal Court erred in its application of the law as the vehicle in question was not taken by any member of the Croatian army or police acting in an official capacity but exclusively for the needs of the Croatian Defence Council, a military formation of Bosnia and Herzegovina, operating in that country.

It appears that on 15 November 2000 a party in some other proceedings concerning the same matter filed a constitutional claim challenging the above legislation. However, the Constitutional Court has not yet adopted any decision.

On 8 May 2001 the Zagreb County Court (Županijski sud u Zagrebu) upheld the Zagreb Municipal Court decision of 10 December 1999.

On 16 June 2001 the applicant company filed a request for revision with the Zagreb Municipal Court, repeating its arguments from the earlier appeal. On 28 June 2001 the Zagreb Municipal Court rejected the above request as inadmissible. It found that the Civil Procedure Act (Zakon o parničnom postupku) allows a party to file a request for revision only against a final decision of an appellate court while the decision of the Zagreb County Court did not represent a final decision in that case.

On 21 July 2001 the applicant company appealed against the Municipal Court's decision.

On 2 October the Zagreb County Court dismissed the appeal.

Section 184 (a) of the 1999 Act on Changes of the Civil Obligations Act (Zakon o dopunama Zakonu o obveznim odnosima, Official Gazette no. 112/1999) provides that all proceedings instituted against the Republic of Croatia for damages caused by the members of the Croatian army or police when acting in their official capacity during the Homeland War in Croatia from 7 August 1990 to 30 June 1996 are to be stayed.

The Act also imposed an obligation on the Government to submit to Parliament special legislation, regulating the responsibility for such damages, at the latest within six months from the entry into force of the present Act. So far no new legislation has been introduced.


The applicant, Mr Zbigniew Guz, is a Polish national who was born in 1962 and lives in Subkowy. He was represented before the Court by Mr C. Pastwa, a lawyer practising in Świecie. 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 27 October 1995 the Tczew Police opened an investigation against the applicant on suspicion of aggravated assault.

It appears that on 2 November 1995 the applicant went to Germany. Subsequently, the Tczew District Prosecutor (Prokurator Rejonowy) stayed the investigation since the applicant had not replied to the summons and his place of residence was unknown. On 30 November 1995 the District Prosecutor issued a search and arrest warrant in respect of the applicant on suspicion of aggravated assault.

On 13 November 2000 the applicant was arrested by the police and subsequently the investigation against him was resumed. The District Prosecutor laid additional charges against the applicant.

Subsequently, the District Prosecutor applied to the Tczew District Court (Sąd Rejonowy) for the applicant to be detained pending the investigation. On 16 November 2000 the District Court remanded the applicant in custody until 13 February 2001 on suspicion of aggravated assault, handling stolen goods and forgery of a car body. It found that in the light of the evidence obtained, in particular witnesses’ testimonies, there was a strong likelihood that the applicant had committed the offences with which he had been charged. It also observed that there was a reasonable risk that the applicant would go into hiding given that he had been at large since 1995.

On 11 December 2000 the Gdańsk Regional Court (Sąd Okręgowy) upheld that decision. It underlined that the applicant had been suspected of committing the offences in question between April 1993 and August 1995 and that five search and arrests warrants had been issued. It also observed that progress in the proceedings against the applicant had been impossible as he had gone into hiding for five years. Further, it held that the applicant’s detention was justified by the severity of the anticipated sentence.

It appears that the applicant’s pre-trial detention was prolonged by the Gdańsk Regional Court on 8 February 2001 for an unspecified period.

On 7 March 2001 the Gdańsk Court of Appeal (Sąd Apelacyjny) upheld the Regional Court’s decision of 8 February 2001. In addition to the arguments previously invoked, it also found that on the day of his arrest, the applicant had been using a forged driving licence. That, in the court’s view, further warranted the prolongation of the applicant’s detention so as to prevent him from absconding.

On 5 April 2001 the District Prosecutor ordered that the applicant undergo psychiatric observation. The relevant report was submitted to the prosecutor on 7 May 2001.

On 12 April 2001 the Regional Court extended the applicant’s detention until 13 June 2001, relying on the same grounds as in the earlier decisions. That decision was upheld on appeal on 23 May 2001.

On 7 June 2001 the Regional Court ordered that the applicant be held in custody until 13 July 2001. It reiterated the grounds previously given.

On 11 July 2001 the Tczew District Prosecutor filed a bill of indictment against the applicant. He was charged with attempted homicide, handling stolen goods, forgery of documents and a car body and having used a forged driving licence. The second defendant, S.G., was charged with directly endangering the life of another person. The prosecution requested the trial court to hear evidence from 21 witnesses.

On 12 July 2001 the Regional Court extended the applicant’s detention until 13 October 2001. It considered, having regard in particular to the victim’s evidence, that there was a strong suspicion that the applicant had committed the offences in question. It also observed that the applicant’s continued detention was necessary in order to secure the proper conduct of the proceedings given the severity of the likely sentence. On 8 August 2001 the Gdańsk Court of Appeal upheld the Regional Court’s decision. It observed that the applicant’s detention was necessary given the fact that he had evaded justice for several years. It also noted that the severity of the sentence which could be imposed justified of itself the applicant’s continued detention. It appears that the applicant’s detention was subsequently extended on later unspecified dates.

On 9 April 2002 the Regional Court ordered that the applicant be held in custody until 30 June 2002, reiterating the grounds previously given.

On 18 June 2002 the Regional Court prolonged the applicant’s detention until 30 September 2002. That decision was upheld by the Court of Appeal on 10 July 2002. The courts repeatedly relied on the strong likelihood that the applicant had committed the offences with which he was charged. In addition, they had regard to the severity of the likely sentence and the fear that he might go into hiding if released. The latter was justified, in the courts’ view, by the length of time the applicant had evaded justice prior to his arrest and his having used a forged identity document.

The Gdańsk Regional Court held 18 hearings on the following dates: 12 and 24 October, 13 November, 4 and 19 December 2001; 8 January, 12 and 19 February, 12 March, 9 and 30 April, 21 May, 4 and 18 June, 3 September, 1, 17 and 25 October 2002. One trial hearing was adjourned on account of the absence of the applicant’s lawyer (19 December 2001).

On numerous occasions the applicant requested the trial court to release him. However, his requests were dismissed for the same reasons which had served to justify his continued detention.

On 31 October 2002 the Gdańsk Regional Court gave judgment. It convicted the applicant as charged and sentenced him to seven and a half years’ imprisonment. It also prolonged the applicant’s detention on remand until 31 January 2003. The applicant appealed against the first-instance judgment.

On 15 October 2003 the Gdańsk Court of Appeal upheld the judgment of the Regional Court. The applicant lodged a cassation appeal against the judgment of the Court of Appeal.

On 20 May 2004 the Supreme Court (Sąd Najwyższy) dismissed the applicant’s cassation appeal due to its manifestly ill-founded character.

The Code of Criminal Procedure of 1997, which entered into force on 1 September 1998, defines detention on remand as one of the so-called “preventive measures” (środki zapobiegawcze). The other measures are bail (poręczenie majątkowe), police supervision (dozór policji), surety by a responsible person (poręczenie osoby godnej zaufania), surety by a social entity (poręczenie społeczne), temporary ban on engaging in a given activity (zawieszenie oskarżonego w określonej działalności) and prohibition on leaving the country (zakaz opuszczania kraju).

Article 249 § 1 sets out the general grounds for imposition of preventive measures. That provision reads:

“1. Preventive measures may be imposed in order to ensure the proper conduct of proceedings and, exceptionally, also in order to prevent an accused’s committing another, serious offence; they may be imposed only if the evidence gathered shows a significant probability that an accused has committed an offence.”

Article 249 § 5 of the 1997 Code, in the version applicable at the relevant time, provides:

“The court shall inform the detainee’s lawyer of the time of a court session at which a decision is to be taken on the prolongation of detention on remand or at which an appeal against a decision imposing or prolonging detention on remand is to be examined.”

Article 258 lists grounds for detention on remand. It provides, in so far as relevant:

“1. Detention on remand may be imposed if:

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

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

If an accused has been charged with a serious offence or an offence for the commission of which he may be liable to a statutory maximum sentence of at least 8 years’ imprisonment, or if a court of first instance has sentenced him to at least 3 years’ imprisonment, the need to continue detention to ensure the proper conduct of proceedings may be based on the likelihood that a severe penalty will be imposed.”

The Code sets out the margin of discretion as to the continuation of a specific preventive measure. Article 257 reads, in so far as relevant:

“1. Detention on remand shall not be imposed if another preventive measure is sufficient.”

Article 259, in its relevant part, reads:

“1. If there are no special reasons to the contrary, detention on remand shall be lifted, in particular if depriving an accused of his liberty would:

(1) seriously jeopardise his life or health; or

(2) entail excessively harsh consequences for the accused or his family.”

The 1997 Code not only sets out maximum statutory time-limits for detention on remand but also, in Article 252 § 2, lays down that the relevant court – within those time-limits – must in each detention decision determine the exact time for which detention shall continue.

Article 263 sets out time-limits for detention. In the version applicable up to 20 July 2000 it provided:

“1. In imposing detention in the course of an investigation, the court shall determine its term for a period not exceeding 3 months.

The whole period of detention on remand until the date on which the first conviction at first instance is imposed may not exceed 2 years.

Only the Supreme Court may, on application made by the court before which the case is pending or, at the investigation stage, on application made by the Prosecutor General, prolong detention on remand for a further fixed period exceeding the periods referred to in paragraphs 2 and 3, when it is necessary in connection with a stay of the proceedings, a prolonged psychiatric observation of the accused, a prolonged preparation of an expert report, when evidence needs to be obtained in a particularly complex case or from abroad, when the accused has deliberately prolonged the proceedings, as well as on account of other significant obstacles that could not be overcome.”

On 20 July 2000 paragraph 4 was amended and since then the competence to prolong detention beyond the time-limits set out in paragraphs 2 and 3 has been vested with the court of appeal within whose jurisdiction the offence in question has been committed. In addition, new paragraph 5 was added. It provides:

“A decision of the Court of Appeal taken pursuant to paragraph 4 may be appealed against to the Court of Appeal sitting in a panel of three judges.”


CASE OF PEDERSEN AND BAADSGAARD v. DENMARK

No violation of Art. 6-1;No violation of Art. 10

Luzius Wildhaber;Nicolas Bratza;Paul Mahoney

The applicants were two television journalists. At the relevant time they were employed by one of the two national television stations in Denmark, Danmarks Radio. They produced two television programmes which were broadcast at 8 p.m. on 17 September 1990 and 22 April 1991 respectively. It was estimated that approximately 30% of all viewers above the age of 12 saw the programmes. The programmes, described as documentaries, were called “Convicted of Murder” (Dømt for mord) and “The Blind Eye of the Police” (Politiets blinde øje) respectively and dealt with a murder trial in which on 12 November 1982 the High Court of Western Denmark (Vestre Landsret) had convicted a person, hereafter called X, of murdering his wife on 12 December 1981 between approximately 11.30 a.m. and 1 p.m. X was sentenced to twelve years’ imprisonment. On appeal, the Supreme Court (Højesteret) upheld the sentence in 1983. On 13 September 1990, following his release on probation, X requested the Special Court of Revision (Den Særlige Klageret) to reopen the case.

The applicants had started to prepare the programmes in March 1989, establishing contact with witnesses through advertising in the local paper and via police reports.

Both programmes began with a statement of the premise on which they had been produced:

“In this programme we shall provide evidence by way of a series of specific examples that there was no legal basis for X’s conviction and that, by imposing its sentence, the High Court of Western Denmark disregarded one of the fundamental tenets of the law in Denmark, namely that the accused should be given the benefit of the doubt.

We shall show that a scandalously bad police investigation, in which the question of guilt was prejudged right from the start, and which ignored significant witnesses and concentrated on dubious ones, led to X being sentenced to twelve years’ imprisonment for the murder of his wife.

This programme will show that X could not have committed the crime of which he was convicted on 12 November 1982”.

At an early stage in the first programme, “Convicted of Murder”, the following comment was made:

“In the case against X, the police investigation involved about 900 people. More than 4,000 pages of reports were written – and thirty witnesses appeared before the High Court of Western Denmark.

We will try to establish what actually happened on the day of the murder, 12 December 1981. We shall critically review the police investigations and evaluate the witnesses’ statements regarding the time of X’s wife’s disappearance.”

When preparing this first programme, the applicants had invited the police of Frederikshavn district, who had been responsible for the investigation of the murder case, to take part. Having corresponded with the applicants on this subject for some time, the chief of police informed them by a letter of 19 April 1990 that the police could not participate in the programme as certain conditions for granting the interview, inter alia, that the questions be sent in writing in advance, had not been met.

Following the broadcast of the first programme on 17 September 1990, the applicants were charged with defamation on the ground that they had unlawfully connected the friend of X’s wife (“the schoolteacher”) with the death of two women referred to, one being X’s wife. The defamation case ended on 14 December 1993 before the High Court with a settlement according to which the applicants were to pay the schoolteacher 300,000 Danish kroner (DKK), apologise unreservedly, and give an undertaking never to broadcast the programme again.

The applicants alleged that the chief superintendent, in a telephone conversation with Mr Pedersen at some unknown time before the broadcast of the second programme, had declined to participate in the programme.

In the introduction to the second programme, the following comment was made:

“It was the police of Frederikshavn district who were responsible at that time for the investigations which led to X’s conviction. Did the police assume right from the start that X was the killer, and did they therefore fail to investigate all the leads in the case, as required by the law?

We have investigated whether there is substance in X’s serious allegations against the police of Frederikshavn district.”

A little later in the programme, the second applicant interviewed a taxi driver, who explained that she had been questioned by two police officers a few days after the disappearance of X’s wife, and that she had mentioned on that occasion two observations she had made on 12 December 1981: she had seen a Peugeot taxi (which was later shown to have no relevance to the murder), and before that she had seen X and his son at five or ten minutes past noon. She had driven behind them for about one kilometre. The reason she could remember the date and time so clearly was because she had to attend her grandmother’s funeral on that day at 1 p.m.

The following comment was then made:

“Commentator: So in December 1981, shortly after X’s wife disappeared and X was in prison, the Frederikshavn police were in possession of the taxi driver’s statement, in which she reported that shortly after noon that Saturday she had driven behind X and his son for about a kilometre ... So X and his son were in Mølleparken [residential area] twice, and the police knew it in 1981.”

The interview went on:

“Second applicant: What did the police officers say about the information you provided?

Taxi driver: Well, one of them said that it couldn’t be true that X’s son was in the car, but in fact I am a hundred percent certain it was him, as I also know the son because I have driven him to the day-care centre.

Second applicant: Why did he say that to you?

Taxi driver: Well, he just said that it couldn’t be true that the son was there.

Second applicant: That it couldn’t be true that you saw what you saw.

Taxi driver: No, that is, he didn’t say that I hadn’t seen X, it just couldn’t be true that the son was with him.

Second applicant: These were the two police officers who questioned the taxi driver in 1981 and who wrote the police report.

We showed the taxi driver her statement of 1981, which she had never seen before.

Taxi driver: It’s missing, the bit about – there was only ... about the Peugeot, there was nothing about the rest, unless you have another one.

Second applicant: There is only this one.

Taxi driver: But it obviously cannot have been important.

Second applicant: What do you think about that?

Taxi driver: Well it says, I don’t know, well I think when you make a statement, it should be written down in any case, otherwise I can’t see any point in it, and especially not in a murder case.

Commentator: So the taxi driver claims that in 1981 she had already told two police officers that she had seen X and his son. Not a word of this is mentioned in this report.

Second applicant: Why are you so sure that you told the police this at the time, which was 1981?

Taxi driver: Well I am a hundred percent sure of it and also, my husband sat beside me in the living room as a witness so... , so that is why I am a hundred percent certain that I told them.

Second applicant: And he was there throughout the entire interview?

Taxi driver: Yes, he was.

Second applicant: Not just part of the interview?

Taxi driver: No, he was there all the time.

Commentator: It was not until 1990, nine years later, that the taxi driver heard of the matter again, shortly after the ‘Convicted of Murder’ programme had been shown; even though the taxi driver’s report had been filed as a so-called 0 report, she was phoned by a chief inspector of the Flying Squad [Rejseholdet] who had been asked by the public prosecutor to do a few more interviews.

Taxi driver: The chief inspector called me and asked whether I knew if any of my colleagues knew anything they had not reported, or whether I had happened to think of something, and I then told him on the phone what I said the first time about the Peugeot and that I had driven behind X and his son up to Ryets Street, and then he said that if he found anything out, or if... or if there was anything else, then... then he would get in touch with me again, which he didn’t, not until a while afterwards, when he called me and asked whether I would come for another interview.

Second applicant: When you told the chief inspector in your telephone call that you followed X, and that his son was in the car, what did he say about that?

Taxi driver: Well, he didn’t say anything.

Second applicant: He did not say that you had never reported this?

Taxi driver: No, he didn’t.”

The second applicant then conducted a short interview with X’s new counsel:

“Second applicant: Have you any comment on the explanation the taxi driver has given now?

X’s new counsel: I have no comment to make at this time.

Second applicant: Why not?

X’s new counsel: I have agreed with the public prosecutor, and the President of the Special Court of Revision, that statements to the press in this matter will in future only be issued by the Special Court of Revision.

Commentator: Even though X’s new counsel does not wish to speak about the case, we know from other sources that it was he who, in February this year, asked for the taxi driver to be interviewed again. So in March she was interviewed at Frederikshavn police station in the presence of the chief superintendent, which is clearly at odds with what the public prosecutor previously stated in public, namely that the Frederikshavn police would not get the opportunity to be involved in the new inquiries.”

The interview with the taxi driver continued:

“Second applicant: And what happened at the interview?

Taxi driver: What happened was that I was shown into the office of the chief inspector of the Flying Squad and the chief superintendent was there too.

Second applicant: Was any explanation given about why he was present?

Taxi driver: No.

Second applicant: So what did you say in this interview?

Taxi driver: I gave the same explanations as I had done the first time when I was interviewed at home.

Second applicant: Ten years before, that is.

Taxi driver: Yes.

Second applicant: And that was?

Taxi driver: Well, that I had driven behind X and his son up to Ryets Street.

Second applicant: What did they say about that?

Taxi driver: They didn’t say anything.

Second applicant: The report which was made in 1981, did you see it?

Taxi driver: No.

Second applicant: Was it there in the room?

Taxi driver: There was a report there when I was being interviewed, but I wasn’t allowed to see it.

Second applicant: Did you expressly ask whether you could see the old report?

Taxi driver: I asked whether I could see it but the chief inspector said I couldn’t ...”

After the interview with the taxi driver the commentator said:

“Now we are left with all the questions: why did the vital part of the taxi driver’s explanation disappear and who, in the police or public prosecutor’s office, should bear the responsibility for this?

Was it the two police officers who failed to write a report about it?

Hardly, sources in the police tell us they would not dare.

Was it [the named chief superintendent] who decided that the report should not be included in the case file? Or did he and the chief inspector of the Flying Squad conceal the witness’s statement from the defence, the judges and the jury? ...”

Pictures of the two police officers, the named chief superintendent and the chief inspector of the Flying Squad, were shown on the screen simultaneously and parallel with the above questions. The questions went on:

“Why did the chief inspector phone the taxi driver shortly after the television programme ‘Convicted of Murder’? After all, the police had taken the view that the taxi driver had no importance as a witness and had filed her statement among the 0 reports.

Why did the chief inspector not call her in for an interview when she repeated her original explanation on the telephone?

Why was the taxi driver interviewed at the Frederikshavn police station in the presence of the chief superintendent, which was completely at odds with the public prosecutor’s public statement?

On 20 September last year [a named] Chief Constable stated to [a regional daily]: ‘All the information connected to the case has been submitted to the defendants, the prosecution and the judges.’ Did the Chief Constable know about the taxi driver’s statement, when he made this statement? Did the State Prosecutor know already in 1981 that there was a statement from a witness confirming that X had been in Mølleparken twice, and that X’s son had been with him both times? Neither of them have agreed to make any statement at all about the case.”

In the meantime, on 11 March 1991, before the broadcast of the second programme, the taxi driver had again been interviewed by the police, at the request of X’s new counsel. She stated that on 12 December 1981 she had attended her grandmother’s funeral at 1 p.m. and that on her way there, around five or ten minutes past noon, she had driven behind X and his son. She had arrived at the funeral just before 1 p.m. She also explained that she had told the police about this when first interviewed in 1981. Later on 11 March 1991 the police carried out a check which revealed that the funeral of the taxi driver’s grandmother had indeed taken place on 12 December 1981, but at 2 p.m.

Subsequently, the police held three interviews with the taxi driver, during which she changed her explanation, in particular as follows.

On 24 April 1991 she maintained having seen X shortly after noon but agreed that the funeral had taken place at 2 p.m. On her way there she realised she had forgotten a wreath. She had had to return home and had consequently arrived at the funeral just before 2 p.m.

On 25 April 1991 she stated that she was not sure about the date or the time she had seen X and his son. Moreover, she was uncertain whether, shortly after the murder, she had told the police about having seen X. She also explained that, during the shooting of her interview with Mr Baadsgaard on 4 April 1991, he had suggested that she say something like “where is the other report?” when he showed her the 1981 report.

On 27 April 1991 she initially stated that she had not seen X and his son on 12 December 1981. She had never before connected this episode to the funeral. She also admitted having made up the story about the forgotten wreath, but had wanted “things to fit”. Later during the interview she maintained that she had seen X and his son on 12 December 1981, but at around 1 p.m.

On 23 May 1991 the chief superintendent reported the applicants and the television station to the police for defamation. It appears, however, that the prosecution’s decision as to whether or not to charge the applicants was adjourned pending the decision whether to reopen X’s case.

This was decided in the affirmative by the Special Court of Revision on 29 November 1991 after two hearings and the examination of ten witnesses, including the taxi driver. Two judges (out of five) in the Special Court of Revision found that new testimonial evidence had been produced on which X might have been acquitted, had it been available at the trial. Two other judges found that no new testimonial evidence had been produced on which X might have been acquitted, had it been available at the trial. The fifth judge agreed with the latter, but found that in other respects special circumstances existed which made it overwhelmingly likely that the available evidence had not been judged correctly. Accordingly, the court granted a retrial.

In the meantime, following the television programmes, an inquiry had commenced into the police investigation of X’s case. The inquiry resulted in a report of 29 July 1991 by the Regional State Prosecutor, according to which the police in Frederikshavn had not complied with section 751(2) of the Administration of Justice Act (Retsplejeloven). This provision, introduced on 1 October 1978, provides that a witness must be given the opportunity to read through his or her statement. The non-compliance had not been limited to the investigation in X’s case. Instead, allegedly in order to minimise errors or misunderstandings, the police in Frederikshavn usually interviewed witnesses in the presence of two police officers and made sure that crucial witnesses repeated their statements before a court as soon as possible. In this connection, the Regional State Prosecutor noted that the High Court, before which X had been convicted in 1982, had not made any comments on the failure to comply with section 751(2) of the Administration of Justice Act with regard to the witnesses who were heard before it in 1982. Finally, the Regional State Prosecutor noted that the Frederikshavn district police were apparently not the only district police failing to comply with the said provision. The Regional State Prosecutor considered it unjustified to maintain that the taxi driver, when interviewed in December 1981, had stated that she had seen X on the day of the murder. During the inquiry this had been contradicted by the two police officers who had interviewed her in 1981. Moreover, the inquiry did not indicate that anyone within the Frederikshavn police had suppressed any evidence in X’s case, or in any other criminal case for that matter.

Consequently, on 20 December 1991, the Prosecutor General (Rigsadvokaten) stated in a letter to the Ministry of Justice that it was unfortunate and open to criticism that the police in Frederikshavn had not implemented the above provision as part of their usual routine, and informed the Ministry that he had agreed with the State Police Academy that he would produce a wider set of guidelines concerning the questioning of witnesses, which could be integrated into the Police Academy’s educational material.

X’s retrial ended with his acquittal in a judgment of 13 April 1992 by the High Court of Western Denmark, sitting with a jury.

A lawyer who represented the applicants in another case had become aware of a letter of 18 May 1992 from the Prosecutor General to the Legal Affairs Committee (Retsudvalget) of the Danish parliament mentioning that, subsequent to the broadcast of the programme “The Blind Eye of the Police”, the applicants had been reported to the police by three police officers from Frederikshavn. By a letter of 10 July 1992, the lawyer requested that the Prosecutor General state whether the applicants had been charged, and if so with what offence. By a letter of 17 July 1992, he was told that no charge had been brought against the applicants.

On 19 January 1993 the Chief Constable in Gladsaxe informed the applicants that they were charged with defaming the chief superintendent. On 28 January 1993 the applicants were questioned by the police in Gladsaxe.

A request of 11 February 1993 by the prosecution to seize the applicants’ research material was examined at a hearing in the Gladsaxe City Court (Retten i Gladsaxe) on 30 March 1993, during which the applicants’ counsel, claiming that the case concerned a political offence, requested that a jury in the High Court – instead of the City Court – try the case. Both requests were refused by the Gladsaxe City Court on 28 May 1993. In June 1993 the prosecution appealed against the decision on seizure and the applicants appealed against the decision on venue. At the request of one of the applicants’ counsel, an oral hearing was scheduled to take place in the High Court of Eastern Denmark (Østre Landsret) on 15 November 1993. However, on 7 October 1993 counsel challenged one of the judges in the High Court, alleging disqualification, and requested an oral hearing on the issue. The High Court decided on 15 October 1993 to refuse an oral hearing and on 11 November 1993 it decided that the judge in question was not disqualified. It appears that counsel requested leave to appeal against this decision to the Supreme Court (Højesteret), but to no avail. As to the appeal against non-seizure and the question of venue, hearings were held in the High Court on 6 January and 7 March 1994, and by a decision of 21 March 1994 the High Court upheld the City Court’s decisions. The applicants’ request for leave to appeal to the Supreme Court was refused on 28 June 1994.

On 5 July 1994 the prosecution submitted an indictment to the City Court. A preliminary hearing was held on 10 November 1994 during which it was agreed that the case would be tried over six days in mid-June 1995. However, as counsel for one of the parties was ill, the final hearings were rescheduled to take place on 21, 24, 28 and 30 August and 8 September 1995.

On 15 September 1995 the Gladsaxe City Court delivered a sixty-eight-page judgment, finding that the questions put in the television programme concerning the named chief superintendent amounted to defamatory allegations, which should be declared null and void. However, the court did not impose any sentence on the applicants as it found that they had had reason to believe that the allegations were true. The court also ruled in favour of the applicants regarding a compensation claim by the widow of the named chief superintendent, who had died before the trial. The judgment was appealed against by the applicants immediately, and by the prosecution on 27 September 1995.

On 15 April 1996 the prosecutor sent a notice of appeal to the High Court, and on 30 April 1996 he invited counsel for the applicants and the attorney for the widow of the chief superintendent to a meeting concerning the proceedings. Counsel for one of the parties stated that he was unable to attend before 17 June 1996, and accordingly the meeting was held on 25 June 1996. The High Court received the minutes of the meeting, from which it appeared that counsel for one of the parties was unable to attend the trial before November 1996, and that he preferred the hearings to take place in early 1997. On 16 August 1996 the High Court scheduled the hearings for 24, 26 and 28 February and 3 and 4 March 1997.

On 6 March 1997 the High Court gave judgment convicting the applicants of tarnishing the honour of the chief superintendent by making and spreading allegations of an act likely to disparage him in the eyes of his fellow citizens, under Article 267 § 1 of the Penal Code. The allegations were declared null and void. The applicants were each sentenced to twenty day-fines of DKK 400 (or twenty days’ imprisonment in default) and ordered to pay compensation of DKK 75,000 to the estate of the deceased chief superintendent.

On 6, 16 and 25 March 1997 the applicants sought leave from the Leave-to-Appeal Board (Procesbevillingsnævnet) to appeal to the Supreme Court. Before deciding, the Board requested an opinion from the prosecuting authorities, namely the Chief of Police, the State Prosecutor and the Prosecutor General. On 27 June 1997 they submitted a joint opinion opposing leave to appeal. However, in the meantime, it appears that a lawyer representing the television station Danmarks Radio had contacted the State Prosecutor, proposing that the public prosecution assist in bringing the case before the Supreme Court as, according to the television station, the High Court’s judgment was incompatible with the Media Responsibility Act (Medieansvarsloven). Consequently, the public prosecutors initiated a new round of consultation on this question, and their joint opinion was forwarded to the Board on 3 September 1997. On 29 September 1997, having heard the applicants’ counsel on the prosecution’s submissions, the Board granted the applicants leave to appeal to the Supreme Court.

The Prosecutor General submitted a notice of appeal and sent the case file to the Supreme Court on 3 October and 6 November 1997 respectively.

As counsel for the applicants wanted to engage yet another counsel, on 20 November 1997 they asked the Supreme Court whether costs in this respect would be considered legal costs. Moreover, they stated that their pleadings could not be submitted until early January 1998. On 17 March 1998 the Supreme Court decided on the question of costs, and on 19 March 1998 scheduled the hearing for 12 and 13 October 1998.

By a judgment of 28 October 1998, the Supreme Court upheld the High Court’s judgment, but increased the compensation payable to the estate to DKK 100,000. The majority of judges (three out of five) held:

“In the programme ‘The Blind Eye of the Police’, [the applicants] not only repeated a statement by the taxi driver that she had already explained to the police during their inquiries in 1981 that shortly after noon on 12 December 1981 she had driven behind X for about one kilometre, but also, in accordance with the common premise for the programmes ‘Convicted of Murder’ and ‘The Blind Eye of the Police’, took a stand on the truth of the taxi driver’s statement and presented matters in such a way that viewers, even before the final sequence of questions, were given the impression that it was a fact that the taxi driver had given the explanation as she alleged she had done in 1981 and that the police were therefore in possession of this statement in 1981. This impression was strengthened by the first of the concluding questions: ‘... why did the vital part of the taxi driver’s explanation disappear and who, in the police or public prosecutor’s office, should bear the responsibility for this?’. In connection with the scenes about the two police officers [the applicants] include two questions in the commentator’s narrative, to which the indictment relates; irrespective of the fact that they were phrased as questions, viewers undoubtedly received a clear impression that a report had been made about the taxi driver’s statement that she had seen X at the relevant time on 12 December 1981; that this report had subsequently been suppressed; and that such suppression had been decided upon either by the named chief superintendent alone or by him and the chief inspector of the Flying Squad jointly. The subsequent questions in the commentator’s narrative do not weaken this impression, and neither does the question whether the Chief Constable or the public prosecutor were aware of the taxi driver’s statement. On this basis we find that in the programme ‘The Blind Eye of the Police’ [the applicants] made allegations against the named superintendent which were intended to discredit him in the eyes of his peers, within the meaning of Article 267 § 1 of the Penal Code [Straffeloven]. We find further that it must have been clear to [the applicants] that they were, by way of their presentation, making such allegations.

[The applicants] have not endeavoured to provide any justification but have claimed that there is no cause of action by virtue of Article 269 § 1 of the Penal Code – [which protects] a party who in good faith justifiably makes an allegation which is clearly in the general public interest or in the interest of other parties ...

As laid down in Thorgeir Thorgeirson v. Iceland (judgment of 25 June 1992), there is a very extensive right to public criticism of the police. As in that decision there is, however, a difference between passing on and making allegations, just as there is a difference between criticism being directed at the police as such and at individual named officers in the police force. Even though being in the public eye is a natural part of a police officer’s duties, consideration should also be given to his good name and reputation.

As stated, [the applicants] did not limit themselves in the programme to referring to the taxi driver’s statement or to making value judgments on this basis about the quality of the police investigations and the chief superintendent’s leadership thereof. Nor did [the applicants] limit themselves to making allegations against the police as such for having suppressed the taxi driver’s explanation; they alleged that the named chief superintendent had committed a criminal offence by suppressing a vital fact.

When [the applicants] were producing the programme, they knew that an application had been made to the Special Court of Revision for the case against X to be reopened and that, as part of the Court of Revision’s proceedings in dealing with the said application, the taxi driver had been interviewed by the police on 11 March 1991 at the request of X’s defence as part of the proceedings to reopen the case. In consequence of the ongoing proceedings for reopening the case, [the applicants] could not count on the chief superintendent and the two police officers who had interviewed the taxi driver in 1981 being prepared to participate in the programme and hence possibly anticipate proceedings in the Court of Revision. Making the allegations cannot accordingly be justified by lack of police participation in the programme.

[The applicants’] intention, in the programme, of undertaking a critical assessment of the police investigation was legitimate in relation to the role of the media as public watchdog, but this does not apply to every allegation. [The applicants] had no basis for making such a serious allegation against a named police officer, and [the applicants’] opportunities for achieving the aims of the programme in no way required the questions upon which the charges are based to be included.

On this basis, and even though the exemptions provided in Article 10 § 2 of the Convention must be narrowly interpreted and Article 10 protects not only the content of utterances but also the manner in which they are made, we agree that the allegation made was not caught by the exemption in Article 269 § 1 of the Penal Code. Indeed, as a result of the seriousness of the allegation, we agree that there is no basis for the punishment to be remitted in accordance with Article 269 § 2 of the Penal Code. We agree further that there are no grounds for a remittal of penalty under Article 272.

We also concur with the findings on defamation.

We agree with the High Court that the fact that the allegation was made in a programme on the national television station Danmarks Radio and hence could be expected to get widespread publicity – as indeed it did – must be regarded as an aggravating factor for the purposes of Article 267 § 3. Considering that it is more than seven years since the programme was shown, we do not find, however, that there are sufficient grounds for increasing the sentence.

For the reasons given by the High Court, we find that [the applicants] must pay damages to the heirs of the chief superintendent. In this connection, it should be noted that it cannot be regarded as crucial that the nature of the claim for damages was not stated in the writ of 23 May 1991, since the chief superintendent’s claim for financial compensation could not relate to anything other than damages. Due to the seriousness of the allegation and the manner of its presentation, we find that the compensation should be increased to DKK 100,000.”

The minority of two judges who argued for the applicants’ acquittal held, inter alia:

“We agree that the statements covered by the indictment, irrespective of their having been phrased as questions, have to be regarded as indictable under Article 267 § 1 of the Penal Code and that [the applicants] had the requisite intention.

As stated by the majority, the question of culpability must be decided in accordance with Article 269 § 1, taken together with Article 267 § 1, interpreted in the light of Article 10 of the European Convention on Human Rights and the European Court of Human Rights’s restrictive interpretation of the exemptions under Article 10 § 2.

In reaching a decision, consideration must be given to the basis on which [the applicants] made their allegations, their formulation and the circumstances under which they were made, as well as [the applicants’] intentions in the programme.

... We find that [the applicants] had cause to suppose that the taxi driver’s statement that she had seen X on 12 December 1981 shortly past noon was true. We further find ... that [the applicants] had reason to assume that the taxi driver, when interviewed in 1981, had told the two police officers that she had seen X ...We accordingly attach weight to the fact that it is natural for such an observation to be reported to the police; that it is also apparent from her explanation in the police report of 11 March 1991 that she had already told the police about her observations in 1981; and that her explanation about the reaction of the police to her information that X’s son had been in the car strengthened the likelihood of her having reported the observation at the interview in 1981.

... It is apparent from the television programme that [the applicants] were aware that the Frederikshavn police had not at that time complied with the requirement to offer a person interviewed an opportunity to see the records of his or her statements. [The applicants] may accordingly have had some grounds for supposing that the December report did not contain the taxi driver’s full statement or that there was another report thereon ...

We consider that [the applicants], in putting the questions covered by the indictment, did not exceed the limits of the freedom of expression which, in a case such as the present one, which relates to serious matters of considerable public interest, should be available to the media. We also attach some weight to the fact that the programme was instrumental in the Court of Revision’s decision to hear witnesses and we attach some weight to X’s subsequent acquittal.

Overall, we accordingly find that [the allegation] is not punishable by virtue of Article 269 § 1 of the Penal Code ...

[We agree that] the allegation should be declared null and void since its veracity has not been proved ...”

The relevant provisions of the Danish Penal Code applicable at the time read as follows:

“If a person in the exercise of a public office or function has been guilty of false accusation, an offence relating to evidence ... or breach of trust, the penalty prescribed for the particular offence may be increased by not more than one-half.”

“1. Any person who gives false evidence before a public authority with the intention that an innocent person shall thereby be charged with, convicted of, or subject to the legal consequence of, a punishable act shall be liable to mitigated detention [hæfte] or to imprisonment for a term not exceeding six years.

Similar punishment shall apply to any person who destroys, distorts or removes evidence or furnishes false evidence with the intention that any person shall thereby be charged with, or convicted of, a criminal act ...”

“1. Any person who tarnishes the honour of another by offensive words or conduct or by making or spreading allegations of an act likely to disparage him in the eyes of his fellow citizens shall be liable to a fine or to mitigated detention.

When imposing sentence it shall be considered an aggravating circumstance if the insult was made in printed documents or in any other way likely to give it wider circulation, or in such places or at such times as greatly to aggravate the offensive character of the act.”

“If an allegation has been maliciously made or disseminated, or if the author has no reasonable ground to regard it as true, he shall be guilty of defamation and liable to mitigated detention or to imprisonment for a term not exceeding two years. If the allegation has not been made or disseminated publicly, the punishment may, in mitigating circumstances, be reduced to a fine.”

“1. An allegation shall not be punishable if its truth has been established or if the author of the allegation has in good faith been under an obligation to speak or has acted in lawful protection of an obvious public interest or of the personal interest of himself or of others.

The punishment may be remitted where evidence is produced which justifies the grounds for regarding the allegations as true.”

“The penalty prescribed in Article 267 of the Penal Code may be remitted if the act has been provoked by improper behaviour on the part of the injured person or if he is guilty of retaliation.”

Section 751 of the Administration of Justice Act read as follows:

“(1) The relevant parts of the given testimonies must be included in the reports and particularly important parts of the testimonies should as far as possible be reported using the person’s own words.

(2) The person interviewed shall be given the opportunity to acquaint himself with the report. Any corrections or supplementary information shall be included in the report. The person interviewed shall be informed that he is not obliged to sign the report.

(3) Audio recordings of the interview may only take place after informing the person interviewed.”


David Thór Björgvinsson;Giovanni Bonello;Lech Garlicki;Ledi Bianku;Nicolas Bratza;Stanislav Pavlovschi

The applicant, Mr John Higham, is a British national who was born in 1943 and lives in Kent. He was represented before the Court by Royds Rdw, solicitors in London. The United Kingdom Government (“the Government”) were represented by their Agent, Mr C. Whomersley of the Foreign and Commonwealth Office.

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

The applicant’s wife died on 5 September 1997. On 20 June 2000, the applicant made a claim for widows’ benefits. On 6 July 2000, the applicant was informed that his claim had been disallowed as he was not a woman. On 28 July 2000 the applicant made a request for reconsideration. On 18 August 2000 his claim was reconsidered but the decision remained unchanged. The applicant did not appeal further as he considered or was advised that such a remedy would be bound to fail since no such social security benefit was payable to widowers under United Kingdom law.

The domestic law relevant to this application is set out in Runkee and White v. the United Kingdom, no. 42949/98, §§ 40-41, 25 July 2007.