Violation of Art. 9;No separate issue under Art. 10;Non-pecuniary damage - finding of violation sufficient

The applicant was born in 1932 and lives in Xanthi.

In 1990 one of the two Muslim religious leaders of Thrace, the Mufti of Xanthi, died. On 15 February 1990 the local Prefect (Νομάρχης) appointed the applicant to act as a deputy (τοποτηρητής).

In August 1990 the two independent Muslim Members of Parliament for Xanthi and Rodopi requested the State to organise elections for the post of Mufti of Xanthi. Having received no reply, the two independent MPs decided to organise themselves elections at the mosques on 17 August 1990 after the prayers. On that date the applicant was chosen to be the Mufti of Xanthi by those attending Friday prayers at the mosques.

On 24 December 1990 the President of the Republic, on the proposal of the Council of Ministers and under Article 44 § 1 of the Constitution, adopted a Legislative Act (πράξη νομοθετικού περιεχομένου) by which the manner of election of the Muftis was changed. Law no. 1920/1991 retroactively validated the Legislative Act of 24 December 1990.

On 20 August 1991, in accordance with the new regulations, the Greek State appointed another Mufti. The applicant refused to step down.

Eight sets of criminal proceedings were instituted against the applicant under Articles 175 and 176 of the Criminal Code for having usurped the functions of a minister of a “known religion”. The Court of Cassation, considering that there might be disturbances in Xanthi, decided, under Articles 136 and 137 of the Code of Criminal Procedure, that the proceedings should take place in other cities. The applicant was legally represented throughout the proceedings by lawyers of his own choice. The courts heard a number of prosecution and defence witnesses.

On 17 January 1994 criminal proceedings were instituted against the applicant on the ground that on 11 January 1993 and 19 April 1993 he had issued messages in the capacity of the mufti of Xanthi.

On 28 June 1996 the single-member first instance criminal court (Μονομελές Πλημμελειοδικείο) of Agrinio found the applicant guilty and sentenced him to ten months’ imprisonment (decision no. 2206/1996). The applicant appealed (see below paragraph 19).

On an unspecified date the applicant was charged for having issued messages in the capacity of the mufti of Xanthi on 3 January 1994, 19 January 1994 and 10 February 1994.

On 28 June 1996 the single-member first instance criminal court of Agrinio found the applicant guilty and sentenced him to ten months’ imprisonment (decision no. 2207/1996). The applicant appealed.

On 29 April 1998 the three-member first instance criminal court (Τριμελές Πλημμελειοδικείο) of Agrinio upheld the applicant’s conviction in the first and second sets of proceedings. It imposed a global sentence of six months’ imprisonment and converted it into a fine (decision no. 682/1998). The applicant appealed in cassation. He alleged that his conviction amounted to a violation of Articles 6, 9, 10 and 14 of the Convention (see below paragraph 29).

On 20 January 1996 a third set of proceedings was instituted against the applicant for the same offence on the ground that on 3 May 1995, 11 November 1995, 13 December 1995, 30 December 1995 and 17 January 1996 he had issued messages in the capacity of the mufti of Xanthi.

On 3 April 1997 the single-member first instance criminal court of Lamia found the applicant guilty and sentenced him to twelve months’ imprisonment (decision no. 1336/1997). The applicant appealed.

On 25 February 1998 the three-member first instance criminal court of Lamia upheld the applicant’s conviction and imposed a sentence of eight months’ imprisonment. The court converted this sentence into a fine (decision no. 641/1998). The applicant appealed in cassation. He alleged that his conviction amounted to a violation of Articles 6, 9, 10 and 14 of the Convention (see below paragraph 29).

On 10 September 1996 a fourth set of proceedings was instituted against the applicant on the ground that on 8 August 1995 he had issued a message in the capacity of the mufti of Xanthi.

On 3 April 1997 the single-member first instance criminal court of Lamia found the applicant guilty and imposed on him an eight months’ prison sentence (decision no. 1335/1997). The applicant appealed.

On 25 February 1998 the three-member first instance criminal court of Lamia upheld the applicant’s conviction but reduced the prison sentence to six months and converted it into a fine (decision no. 640/1998). The applicant appealed in cassation. He alleged that his conviction amounted to a violation of Articles 6, 9, 10 and 14 of the Convention (see below paragraph 29).

On an unspecified date a fifth set of proceedings was instituted against the applicant on the ground that on 6 March 1994, 15 May 1994, 14 August 1994, 22 November 1994, 24 December 1994 and 9 January 1995 he had issued messages in the capacity of the mufti of Xanthi.

On 7 May 1996 the single-member first instance criminal court of Thessaloniki found him guilty and sentenced him to ten months’ imprisonment (decision no. 23145/1996). The applicant appealed.

On 5 November 1998 the three-member first instance criminal court of Thessaloniki upheld the applicant’s conviction but reduced the prison sentence to eight months and converted it into a fine (decision no. 14370/1998). The applicant appealed in cassation. He alleged that his conviction amounted to a violation of Articles 6, 9, 10 and 14 of the Convention (see below paragraph 30).

On 12 March 1999 the Court of Cassation rejected the applicant’s appeals concerning the first, second, third and fourth sets of proceedings. It considered that the offence in Article 175 of the Criminal Code was committed “when somebody appeared as a minister of a known religion and when he discharged the functions of the minister’s office including any of the administrative functions pertaining thereto”. The court considered that the applicant had committed this offence because he behaved and appeared as the Mufti of Xanthi. It further considered that the applicant’s conviction was not contrary to Articles 9, 10 and 14 of the Convention, because the applicant had not been punished for his religious beliefs or for expressing certain views but for usurping the functions of a Mufti. As regards Article 6 of the Convention, the Court of Cassation considered that the applicant was legally represented by lawyers of his own choice throughout the proceedings and that he had exercised all his defence rights (judgments nos. 592/1999 and 594/1999).

On 2 June 1999 the Court of Cassation rejected the applicant’s appeal concerning the fifth set of proceedings for the reasons set out in its judgments nos. 592/1999 and 594/1999 (judgment no. 1133/1999).

Three more sets of proceedings were instituted against the applicant on the ground that on various dates he had issued messages in the capacity of the mufti of Xanthi. The applicant was found guilty by the single-member first instance criminal court of Lamia (decisions nos. 4660/1997, 2552/1998 and 4699/1997).

On 28 March 2001 the three-member first instance criminal court of Lamia acquitted the applicant in the light of the Court’s judgment in the Serif v. Greece case (no. 38178/97, ECHR 1999–IX). The court held that, by addressing religious messages to a group of people who voluntarily followed him as their religious leader, the applicant had not usurped the functions of a minister of a “known religion”, but had simply exercised his right to manifest his religion, a right guaranteed by Article 9 of the Convention (decisions nos. 1000/2001, 1001/2001 and 1002/2001).

Article 11 of the Treaty of Peace of Athens between Greece and others, on the one hand, and the Ottoman Empire, on the other, which was concluded on 17 May 1913 and ratified by the Greek Parliament by a law published in the Official Gazette on 14 November 1913, provides as follows:

(original)

« La vie, les biens, l’honneur, la religion et les coutumes de ceux des habitants des localités cédées à la Grèce qui resteront sous l’administration hellénique seront scrupuleusement respectés.

Ils jouiront entièrement des mêmes droits civils et politiques que les sujets hellènes d’origine. La liberté, la pratique extérieure du culte seront assurées aux Musulmans (...)

Aucune atteinte ne pourra être portée à l’autonomie et à l’organisation hiérarchique des communautés musulmanes existantes ou qui pourraient se former, ni à l’administration des fonds et immeubles qui leur appartiennent (...)

Les Muftis, chacun dans sa circonscription, seront élus par les électeurs musulmans (...)

Les Muftis, outre leur compétence sur les affaires purement religieuses et leur surveillance sur l’administration des biens vacoufs, exerceront leur juridiction entre musulmans en matière de mariage, divorce, pensions alimentaires (néfaca), tutelle, curatelle, émancipation de mineurs, testaments islamiques et successions au poste de mutévelli (Tévliét).

Les jugements rendus par les Muftis seront mis à exécution par les autorités helléniques compétentes.

Quant aux successions, les parties Musulmanes intéressées pourront, après accord préalable, avoir recours au mufti, en qualité d’arbitre. Contre le jugement arbitral ainsi rendu toutes les voies de recours devant les tribunaux du pays seront admises, à moins d’une clause contraire expressément stipulée. »

On 10 August 1920 Greece concluded two treaties with the principal Allied Powers in Sèvres. By the first treaty the Allied powers transferred to Greece all the rights and titles which they had acquired over Thrace by virtue of the Peace Treaty they had signed with Bulgaria at Neuilly-sur-Seine on 27 November 1919. The second treaty concerned the protection of minorities in Greece. Article 14 § 1 of the second treaty provides as follows:

“Greece agrees to take all necessary measures in relation to the Moslems to enable questions of family law and personal status to be regulated in accordance with Moslem usage.”

On 30 January 1923 Greece and Turkey signed a treaty for the exchange of populations. On 24 July 1923 Greece and others, on the one hand, and Turkey, on the other, signed the Treaty of Peace of Lausanne. Articles 42 and 45 of this treaty give the Moslem minority of Greece the same protection as Article 14 § 1 of the Treaty for the Protection of Minorities of Sèvres. On the same day Greece signed a Protocol with the principal Allied Powers bringing into force the two treaties concluded in Sèvres on 10 August 1920. The Greek Parliament ratified the three above-mentioned treaties by a law published in the Official Gazette on 25 August 1923.

In its decision no. 1723/1980 the Court of Cassation considered that it was obliged to apply Islamic law in certain disputes between Moslems by virtue of the Treaty of Peace of Athens of 1913, the Treaty for the Protection of Minorities of Sèvres of 1920 and the Treaty of Peace of Lausanne of 1923.

Law no. 2345/1920 provided that the Muftis, in addition to their religious functions, would have competence to adjudicate on family and inheritance disputes between Moslems in so far as these disputes are governed by Islamic law. It also provided that the Muftis were directly elected by the Moslems who had the right to vote in the national elections and who resided in the Prefectures in which the Muftis would serve. The elections were to be organised by the State and theological school graduates had the right to be candidates. Article 6 § 8 of the law provided for the promulgation of a royal decree to make detailed arrangements for the elections of the Muftis. Such a decree was never promulgated.

Under the legislative act of 24 December 1990 the functions and qualifications of the Muftis remain largely unchanged. However, provision is made for the appointment of the Muftis by presidential decree following a proposal by the Minister of Education who, in his turn, must consult a committee composed of the local Prefect and a number of Moslem dignitaries chosen by the State. The act expressly abrogates Law no. 2345/1920. In the act it is envisaged that it should be ratified by law in accordance with Article 44 § 1 of the Constitution.

Law no. 1920/1991 retroactively validated the legislative act of 24 December 1990.

Article 44 § 1 of the Constitution provides as follows:

“In exceptional circumstances, when an extremely urgent and unforeseeable need arises, the President of the Republic may, on the proposal of the Council of Ministers, adopt legislative acts. These acts must be submitted to Parliament for approval ... within forty days ...”

Article 175 of the Criminal Code provides as follows:

“1. A person who intentionally usurps the functions of a State or municipal official is punished with imprisonment up to a year or a fine.

This provision also applies when a person usurps the functions of a lawyer or a minister of the Greek Orthodox Church or another known religion.”

The Court of Cassation has considered that this provision applies in the case of a former priest of the Greek Orthodox Church who continues to wear the priest robes (decision no. 378/1980). The priest in question was defrocked after he joined the Old Calendarists, a religious movement formed by Greek Orthodox priests who wanted the Church to maintain the Julian calendar. In decision no. 454/1966 the Court of Cassation considered that the offence in Article 175 of the Criminal Code is also committed by a person who purports to discharge the administrative functions of a priest. In decisions nos. 140/1964 and 476/1971 the Court of Cassation applied Article 175 of the Code to cases of persons who had purported to exercise the religious functions of an Orthodox priest by conducting services, christening children etc.

Article 176 of the Criminal Code provides as follows:

“A person who publicly wears the uniform or the insignia of a State or municipal official or of a religious minister of those referred to in Article 175 § 2 without having the right to do so ... is punished with imprisonment up to six months or a fine.”

Ministers of the Greek Orthodox Church and other “known” religions enjoy a number of privileges under domestic law. Inter alia, the religious weddings they celebrate produce the same legal effects as civil weddings and they are exempt from military service.


The applicant, Mr Ruben Smith, is a United Kingdom national, born in 1947, and he is currently in prison in Surrey. He is represented before the Court by Austin and Allen, a firm of solicitors practising in Bedfordshire.

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

In 1968 the applicant was convicted of inflicting grievous bodily harm.

On 30 August 1998 the applicant’s cousin shot a man at point blank range in the thigh with a sawn-off shotgun in the living room of the applicant’s home. The applicant was arrested on 31 August 1998. He denied any knowledge of the incident claiming that that night he had been to a number of pubs, gone home, had tea and gone to bed.

On 1 September 1998 he was interviewed by the police and he declined to answer questions. Later, on the same day, he requested an interview with the police. This time he told the police that he knew who was responsible for the shooting but that he had nothing to do with it. He said the shooting had taken place outside his house and that he had not been present. He was charged at the conclusion of that interview with wounding with intent to cause grievous bodily harm and with possession of a firearm. He then requested a further interview when he admitted that he had been at a pub with the victim and his cousin. The applicant claimed that when he arrived home the shooting had already happened and this time he named his cousin as responsible. When asked how he knew if he was not present at the time, he said that he had received a phone call from his cousin admitting responsibility.

On 26 March 1999, the applicant’s cousin was subsequently convicted of wounding with intent to cause grievous bodily harm and was sentenced on 10 September 1999 to ten years’ imprisonment.

The applicant, who had fallen ill during the trial, was tried later in August 1999 on one count of wounding with intent to cause grievous bodily harm and one count of possession of firearm with intent to endanger life. He did not give evidence at his trial or call any witnesses on his behalf. The victim’s evidence was that the applicant had entered the room in his house with a sawn-off shotgun, had pointed the gun at the victim’s head and legs and then left the room. He came back within a minute with his cousin, his cousin had the gun, the cousin pointed the gun at the victim’s head and then his legs and then shot the victim in the thigh. It was the prosecution’s case that the applicant had been behind the shooting and was responsible for providing the weapon. There was unchallenged evidence that the victim’s blood and flesh were found on the chair where he was shot in the applicant’s house and wadding from a shotgun cartridge and more of the victim’s blood were found outside the applicant’s house.

At the close of the prosecution case it was submitted on behalf of the defence that there was no case to answer. The trial judge rejected the application ruling that there was no inherent weakness sufficient to enable him to withdraw the case from the jury. The applicant, who began to feel unwell during these proceedings, did not leave the court until after the judge’s ruling. Since the applicant was not intending to give evidence or call any evidence in his defence, at that stage all that remained were the closing speeches of counsel to the jury. The trial judge had already enquired as to whether the applicant had been warned of the possible consequences of not giving evidence before the applicant was taken ill.

The trial judge adjourned the trial to seek a report on the applicant’s health. He was informed that the applicant was suffering from angina and was to be discharged from hospital that afternoon. The trial judge directed the trial to resume the next day. The applicant attended but his counsel requested permission for the closing speeches to be given in his absence. The prosecution and the trial judge agreed that the applicant could go home.

On 20 August 1999 the trial judge gave a detailed summing-up to the jury. In outlining to the jury the functions of the judge and jury, he stated:

“... You must ... be careful to decide the case only on the evidence which has been placed before you. You are entitled to draw inferences; that is to come to common sense conclusions based upon the evidence which you accept, but you must not speculate about what evidence there might have been because that amounts to no more than guessing, and you must not do that.”

As to the burden and standard of proof, he pointed out that:

“As in all cases under the English criminal law, the prosecution must prove that the defendant is guilty. [The applicant] does not have to prove his innocence. Indeed, he has chosen not to give evidence. That is his right.

In a criminal trial, the burden of proving the defendant’s guilt lies always upon the prosecution, and in order to succeed in proving the defendant’s guilt, the prosecution must make you sure of it. Nothing less than that will do, and so if after you have considered all the evidence you are sure than Mr Smith is guilty, then you must return a verdict of guilty. If you are not sure, your verdict must be not guilty.”

He then went on to deal with the separate consideration of the two counts against the applicant:

“[The applicant] faces two counts on this indictment. You must consider the case against and for the defendant on each count separately. They are merely there as a matter of convenience on the same sheet, but you may feel that in this instance they stand or fall together”.

and he then dealt with the earlier conviction of the applicant’s cousin:

“... you have heard that [the applicant’s cousin] who is named in count one of this indictment with [the applicant], has been convicted. Well, the only reason you have been given this information is because it is evidence which goes to prove that this offence was committed at least by [the applicant’s cousin] ... [The applicant’s cousin] and other evidence tells you that it occurred in a room in [the applicant’s] home, but that is the only purpose of the evidence. It does not prove anything else, and apart from its relevance to that matter, it has no bearing and must not have any bearing on your decision as to whether the prosecution has made you sure of this defendant’s guilt”.

The trial judge then dealt with the question of the relevance of the earlier lies told by the applicant to the police:

“You know, you may feel, that [the applicant] has lied to the police. Certainly, virtually the whole of the first interview were lies and it may be that you will conclude that there are lies in [interviews] two and three as well. Well, you are entitled to consider whether this supports the case against him. You should consider: “Why did he lie?”. Now, the mere fact that a defendant tells a lie is not in itself evidence of guilt. A defendant may lie for many reasons. They may possibly be innocent ones ... in the sense that they do not denote guilt of this offence. For example, it may be ... to bolster a true defence mentioned to you by [the applicant’s counsel] a short while ago. It might be to protect somebody else or to conceal some conduct, which is not good conduct, but falls short [of] the commission of the offence, or it might be out of panic or confusion. If you think there is, or may be, an innocent explanation for the lies, then you should take no notice of them. It is only if you are sure that he did not lie for an innocent reason, then the lies can be regarded by you as evidence supporting the prosecution case and going towards the proof of guilt.”

He then directed the jury as regards the inferences that might be drawn from the applicant’s failure to give evidence:

“Now, [the applicant] has not given evidence. That is his right. He is entitled to remain silent and require the prosecution to prove its case. Indeed, it would be strange if he were not because at the start of every interview he is given a caution: “You do not have to say anything”, and a few more words are added.

So, ladies and gentlemen, you must not assume he is guilty just because he has not given evidence. Because failure to give evidence cannot on its own prove guilt. But, of course, he was told, and you have heard me mention it to [the applicant’s counsel] earlier today, that depending on the circumstances, you may take into account the failure to give evidence when deciding on your verdict.

[The applicant] did answer questions in interview and he now seeks to rely on those answers which are, of course, evidence in the case, but they are merely evidence of what he said then when being questioned by the police. It is a matter for you to decide what weight you should give to them, but you are entitled to bear in mind that those answers were not given here before you. They were not given on oath, and the prosecution has had no opportunity to test them before you in cross-examination.”

On 20 August 1999 the jury found the applicant guilty of wounding with intent to cause grievous bodily harm and of possessing a firearm with intent to endanger life. In October 1999 he was sentenced to life imprisonment pursuant to section 2 of the Crime (Sentences) Act 1997 and a tariff of 3 years and 6 weeks was fixed.

In his application for leave to appeal against conviction to a single judge of the Court of Appeal, the applicant argued that the trial judge wrongly rejected the defence submission that there was no case to answer and wrongly failed to withdraw the case from the jury. On 21 December 1999 the single judge rejected the applicant’s appeal, finding as follows:

“The trial judge pointed out with sufficient care the contradictions and weaknesses in the evidence against you. There was evidence that you told or indicated to your partner ... to leave the room; that you then entered the room where the victim was with a sawn-off shotgun and pointed it at his head, chest and legs; that you then left the room and returned with Edwin Smith who now held the gun which was loaded and you were present when he fired at the victim. The Jury were entitled to infer either that when you entered the room with the gun it was loaded or that it was subsequently loaded in your presence. There would have been no need to load it if the only intention was to frighten the victim. Thereafter you were seen to dispose of something in the garden and both you and [your cousin] tidied up the room where the shooting occurred. You then either lied to the Police or said that you had no comment to make to their questions.

In those circumstances, there was evidence for the Jury to consider and evidence from which they could infer that you had the necessary intent to be a joint participant in the offence.”

In June 2000 the applicant submitted amended grounds of appeal with his renewed leave to appeal application to the full Court of Appeal, adding numerous complaints about the trial judge’s summing up.

The full Court of Appeal rejected each ground of appeal against conviction on 30 June 2000. It “emphatically” agreed with the single judge’s views as regards the first ground of appeal (that there was no case to answer) and rejected each allegation as regards the trial judge’s summing up.

As to his claim that the trial judge invited the jury to consider the applicant’s failure to give evidence against him in terms that were not sufficiently clear, the Court of Appeal found that the trial judge could have said more at the relevant juncture but it wondered whether any further degree of clarity would have helped the applicant in the circumstances. It did not accept the applicant’s complaint about the trial judge’s reference to his not giving evidence as a “failure” to give evidence: it found that the use of the word “failure” in that context was neutral, proper, fair without innuendo or pejorative force.

Finally, the applicant’s claim that the trial judge had invited the jury to consider drawing an adverse inference against him for not giving evidence at his trial when in fact he was medically unfit to attend his trial was also rejected, the Court of Appeal noting that the defence had already declared before the applicant absented himself that it would not be calling any evidence and that the trial judge had satisfied himself, by asking the applicant’s counsel, that the applicant had been warned of the possible consequences of not giving evidence.

On 12 July 2001, on the applicant’s appeal against sentence, the Court of Appeal quashed the sentence of life imprisonment and substituted a term of seven years’ imprisonment.

Section 35 of the Criminal Justice and Public Order Act 1994, which concerns the exercise of the defendant’s right to silence at trial, provides that:

“(1) At the trial of any person for an offence, sub-sections (2) and (3) below apply unless–

(a) the accused’s guilt is not in issue; or

(b) it appears to the court that the physical or mental condition of the accused makes it undesirable for him to give evidence;

but subsection (2) below does not apply if, at the conclusion of the evidence for the prosecution, his legal representative informs the court that the accused will give evidence or, where he is unrepresented, the court ascertains from him that he will give evidence.

(2) Where this subsection applies, the court shall, at the conclusion of the evidence for the prosecution, satisfy itself (in the case of proceedings on indictment, in the presence of the jury) that the accused is aware that the stage has been reached at which evidence can be given for the defence and that he can, if he wishes, give evidence and that, if he chooses not to give evidence, or having been sworn, without good cause refuses to answer any question, it will be permissible for the court or jury to draw such inferences as appear proper from his failure to give evidence or his refusal, without good cause, to answer any question.

(3) Where this subsection applies, the court or jury, in determining whether the accused is guilty of the offence charged, may draw such inferences as appear proper from the failure of the accused to give evidence or his refusal, without good cause, to answer any question.”

Section 38 (3) adds that:

“A person shall not ... be convicted of an offence solely on an inference drawn from such a failure or refusal as is mentioned in section 34(2)...”

Section 35(2) of the 1994 Act is the subject of Practice Direction: Crown Court (Defendant’s Evidence) ([1995] 2 Cr.App.R. 192 (Court of Appeal) Guidance) which sets out how the trial judge must ensure in open court that a defendant who decides not to give evidence at trial has been warned (by his counsel) that the jury may draw adverse inferences from this.

In R. v. Cowan ([1996] 1 Cr.App.R. 1), Lord Taylor considered the direction that should be given by the trial judge to the jury and emphasised five essential points.

“1. The judge will have told the jury that the burden of proof remains upon the prosecution throughout and what the standard required is.

It is necessary for the judge to make clear to the jury that the defendant is entitled to remain silent. That is his right and his choice.

An inference from failure to give evidence cannot on its own prove guilt. That is expressly stated in section 38(3) of the Act.

Therefore, the jury must be satisfied that the prosecution have established a case to answer before drawing any inferences from silence. Of course, the judge must have thought so or the question whether the defendant was to give evidence would not have arisen. But the jury may not believe the witnesses whose evidence the judge considered sufficient to raise a prima facie case. It must therefore be made clear to them that they must find there to be a case to answer on the prosecution evidence before drawing an adverse inference from the defendant’s silence.

If despite any evidence relied upon to explain his silence or in the absence of any such evidence, the jury conclude the silence can only sensibly be attributed to the defendant’s having no answer or none that would stand up to cross-examination, they may draw an adverse inference.”

The Judicial Studies Board specimen direction for the use of trial judges concerning section 35 at the time of the applicant’s trial stated:

“The defendant has not given evidence. That is his right. He is entitled to remain silent and require the prosecution to prove its case. You must not assume he is guilty just because he had not given evidence because failure to give evidence cannot, on its own, prove guilt. However, as he has been told, depending on the circumstances, you may take into account his failure to give evidence when deciding on your verdict.

In the first place when considering the evidence as it now is, you may bear in mind that there is no evidence from the defendant himself which in any way undermines or contradicts or explains the evidence put before you by the prosecution.

In the second place if you think in all the circumstances it is right to do so, you are entitled, when deciding whether the defendant is guilty of the offence(s) charged, to draw such inferences from his failure to give evidence as you think proper. In simple terms, this means that you may hold this failure against him.

[There is evidence before you on the basis of which the defendant’s advocate invites you not to hold it against the defendant that he has not given evidence. That evidence is (here set out the evidence). If you think that this amounts to a reason why you should not hold it against the defendant that he has not given evidence, do not hold his silence against him. If, on the other hand, it does not in your judgment provide an adequate explanation for his absence from the witness box, then you may, if you think it right, hold his failure to give evidence against him.]

What inference can you properly draw from the defendant’s decision not to give evidence before you? If you conclude that there is a case for him to meet, you may think that if he had an answer to it he would have gone into the witness box to tell you what it is.

If, in your judgment, the only sensible reason for his decision not to give evidence is that he has no explanation or answer to give, or none that would have stood up to cross-examination, then it would be open to you to hold against him his failure to give evidence, that is, taken it into account as some additional support for the prosecution’s case. You are not bound to do so. It is for you to decide whether it is fair to do so.”


The applicant, Mr José Monedero Angora, is a Spanish national who was born in 1960 and lives in Alcazar de San Juan. He was represented before the Court by Mr M. Cobo del Rosal, a lawyer practising in Madrid.

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

On 18 June 2004 the applicant was arrested in Spain and remanded in custody in execution of a European arrest warrant issued by the French judicial authorities following a judgment by the Pau tribunal de grande instance delivered in his absence on 12 January 1993. In that judgment, the court had sentenced the applicant to five years’ imprisonment for a drug-related offence.

On 25 June 2004 central examining magistrate no. 4 referred the case to the Audiencia Nacional for a decision on the merits. However, he considered that the statutory time-limit for surrendering the applicant to the French authorities had not been complied with and that the application to have the applicant surrendered to the French authorities could therefore be rejected, the applicant being opposed to it.

On 15 July 2004 the applicant submitted an application for bail, arguing that there was nothing to indicate that he had committed the offence in respect of which the French courts had delivered their judgment in 1993. The Audiencia Nacional dismissed his application by a decision of 20 July 2004.

However, on 27 July 2004 the same court ordered the applicant’s release. At the same time, it requested the French authorities to provide the fingerprints of the person who had been detained in France, and asked Interpol for the fingerprints of the person who was the subject of the extradition request.

In a decision of 22 December 2004, the Audiencia Nacional agreed to surrender the applicant to the French authorities. It noted that the procedure complied with the conditions laid down in Law 3/2003 of 14 March 2003, which had been enacted in Spain pursuant to the obligations on the State under the framework decision on the European arrest warrant and the surrender procedures between member States adopted by the Council of the European Union on 13 June 2002 (OJEC L 190/1 of 18 July 2002). The decision made the surrender of the applicant to the French authorities conditional on any sentence that might be imposed upon him being executed in Spain, as the judgment convicting him had been delivered in his absence and was therefore subject to appeal.

On 30 December 2004 the applicant submitted an application for interpretation (aclaración) of that decision. The application concerned, firstly, whether he had been identified and by what means and, secondly, the application to his case of Law 4/1985 of 21 March 1985 on passive extradition and not of the framework decision of the Council of the European Union of 13 June 2002, given that the facts at the origin of the criminal proceedings in France had taken place between February 1991 and January 1992. On 31 January 2005 the Audiencia Nacional dismissed the application, considering that the contested decision did not fall into the category of cases subject to an application for interpretation under section 267 of the Judicature Act. Owing to an error, the applicant was not informed that his application had been dismissed.

On the same day, the Audiencia Nacional ordered that the applicant be detained for surrender to the French authorities. An appeal (recurso de súplica) lodged against that decision was dismissed on 18 February 2005, as the measure had been adopted for the purposes of surrendering the applicant to the French authorities but the applicant could still serve the final sentence in Spain.

Relying on Article 24 (right to a fair trial) in conjunction with Articles 17 (right to freedom) and 25 (principle of legality) of the Constitution, the applicant lodged an amparo appeal (action for infringement of fundamental rights) with the Constitutional Court against the decisions of 22 December 2004 and 31 January and 18 February 2005. The Constitutional Court dismissed the appeal in a judgment delivered on 18 July 2005 and served on 27 July 2005.

It dismissed the complaints relating to the decision of 22 December 2004 as they were out of time, and considered that the applicant had not been adversely affected by the failure to notify him of the rejection of his application for interpretation of the decision delivered on 31 January 2005 because that application had clearly been futile.

With regard to the decisions of 31 January and 18 February 2005 relating to the detention of the applicant for the purposes of surrendering him to the French authorities, the Constitutional Court noted that the amparo appeal did not contain any complaint about those decisions; the applicant had confined himself to arguing, firstly, that the Audiencia Nacional should have applied the extradition law, which he considered to be of greater relevance to his case, and not Law 3/2003 on the European arrest warrant and, secondly, that the French criminal proceedings resulting in a European arrest warrant being issued against him had related to a statute-barred offence. In that connection, the Constitutional Court observed that it was not its task to reconstruct the reasons given by applicants for lodging an appeal.

The applicant then requested that the decision of 31 January 2005 be served on him, which was done on 7 September 2005. On 14 September 2005 he lodged a further amparo appeal with the Constitutional Court. In a decision of 29 September 2005, the court dismissed the appeal, holding that an application for interpretation which artificially extended the proceedings was inadmissible.

“1. The courts cannot amend decisions once they have been signed; however they can interpret obscure concepts and correct clerical errors ...”

“... The purpose of this Law is to fulfil the obligations which the framework decision creates for the member States, and which consist of replacing extradition procedures with a new procedure for surrender [to the authorities of the applicant State] of persons who are suspected of having committed an offence or who try to escape justice after being convicted by a final decision. ...

The application of the principle of mutual recognition requires that, once the competent authority has received the European warrant with a view to its execution, this takes place practically automatically, without the judicial authority that executes the warrant having to examine the application again to verify its conformity with domestic law. Therefore, the reasons enabling the judicial authority to refuse execution are laid down by law, and the nature [of the warrant] allows that authority to make an objective assessment. Thus the usual reasons for refusal in extradition proceedings are eliminated, such as those relating to the non-surrender of nationals or to the fact that certain offences are considered to be political offences.

The extremely innovative nature of this procedure is even clearer if we consider that it applies to the long list of categories of offences set out in the framework decision, for which the existence of double criminality can no longer be verified. Accordingly, when the judicial authority receives a European arrest warrant for one of the types of offence listed, and provided that the corresponding sentence exceeds a given threshold, it must proceed with execution, whether or not its criminal legislation provides for such an offence. ...”


Preliminary objection joined to merits and dismissed (non-exhaustion of domestic remedies);Remainder inadmissible;Violation of Art. 3 (substantive aspect);Violation of Art. 3 (procedural aspect);Non-pecuniary damage - award

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

The applicant was born in 1974. His present place of residence is unknown.

On 4 August and 5 November 2003 Ms Z. and Ms G. were robbed in their flats. The first robbery took place in the building where the applicant’s acquaintance Ms M. lived, while the second victim was her distant relative.

On 5 November 2003 the police questioned Ms M., who was suspected by one of the victims. She stated that both robberies had been committed by the applicant and his friends.

On 8 November 2003 Ms M. was hospitalised with a head injury and concussion. On 10 November 2003 she complained to the Ministry of the Interior that she had been coerced by the police into testifying against the applicant. After this Ms M. went into hiding from the authorities. Her complaint was later examined as part of the applicant’s trial (see paragraph 14 below).

Late in the evening of 5 November or during the early hours of 6 November 2003 the applicant was apprehended by the police on suspicion of the robberies of Ms Z. and Ms G. His arrest was documented on 6 November 2003.

On 2 June 2004 the Solomyanskyy District Court of Kyiv (“the Solomyanskyy Court”) severed the charge concerning the robbery of Ms Z. and remitted the case in that part for additional investigation. Its outcome is unknown.

While it is not known when the applicant began to be legally represented, it transpires from the aforementioned ruling of 2 June 2004, as well as from the subsequent judicial decisions, that from that point onwards one or sometimes two lawyers represented him in the course of the trial.

Although the applicant consistently denied guilt, both during the pre-trial investigations and the trial, on 11 November 2004 the Solomyanskyy Court found him guilty of the violent robbery of Ms G. and sentenced him to seven years and six months’ imprisonment with confiscation of all his personal property. The court relied on the statements of the victim, who recognised the applicant as one of the perpetrators, as well as the statements of a witness who had seen him close to the crime scene around the time of the robbery. The court further relied on the statements given by Ms M. during the pre-trial investigation. It also heard statements from two defence witnesses, according to which the applicant had spent the whole day with them on 5 November 2003, but did not trust the statements, deeming them too general and contradictory.

On 24 May 2005 the Kyiv City Court of Appeal (“the Court of Appeal”) quashed the judgment and remitted the case for additional investigation, having pointed out a number of procedural shortcomings.

On 22 May 2007 the Solomyanskyy Court delivered a new judgment, the operative part of which was identical to the previous one. The court additionally heard a number of defence witnesses who stated that they had either spent the whole day on 5 November 2003 in the applicant’s company or had seen him at various times on that date. The court decided, however, that those statements were either untruthful, because the witnesses were the applicant’s friends and wanted to help him avoid criminal liability, or unrelated to the precise time when the robbery had been committed. Ms M. was questioned during the trial and retracted her earlier statements incriminating the applicant as given under duress. However, the court chose to rely on those earlier statements as more plausible and concordant with the other facts. It noted, in particular, that she had not requested a medical examination until two days after her questioning by the police and that there was no evidence that the injuries discovered had been inflicted on her in police custody. While Ms M. contended that she had been hiding in fear that the police might seek revenge, the court considered it more probable that she had in fact been afraid that the applicant’s accomplices who had not been detained might seek revenge.

On 5 February and 9 June 2008 the Court of Appeal and the Supreme Court respectively upheld the aforementioned judgment.

On 12 August 2009 the applicant was released on parole.

According to the applicant, the Chief and Deputy Chief of the Criminal Investigation Unit of the Solomyanskyy District Police Department (начальник та заступник начальника відділу кримінального розшуку Солом’янського РУ ГУ МВС України в м. Києві), officers T. and Z., tortured him in the police station at Povitroflotskyy Avenue during the night of 5-6 November 2003. They allegedly sought, but failed to obtain, a confession from him to several counts of robbery.

As submitted by the applicant, T. and Z. punched and kicked him, forced him to stand for a long time with his legs wide apart, attempted to insert a truncheon into his anus, and put a plastic bag over his head, stopping him from breathing. In the early hours of 6 November 2003 they allegedly took him to the police station garage, where they forced him to undress, handcuffed him to a radiator and poured cold water on him from a car-wash hose until he lost consciousness. After the applicant regained consciousness, he found himself inside the police station and was given a mug of hot water to drink and some drops.

On 6 November 2003 the applicant wrote an “explanatory note”, stating that he had accidentally fallen in the street the night before and had received some injuries as a result. He noted that he had no complaints against the police.

In the afternoon of 6 November 2003 the applicant was taken to another police station in Shutov Street, Solomyanskyy District, TUM-4 (Територіальне управління міліції № 4, ТУМ-4).

On 11 November 2003 the applicant’s mother complained to the Ombudsman that he had been ill-treated in police custody.

On 12 November 2003 representatives of the Ombudsman visited the applicant in TUM-4 and took photographs of his injuries. The applicant provided the Court with seven colour photographs, which, according to him, are those taken by the Ombudsman’s representatives. From these photographs, the following injuries can be seen on his body: a large bruise on the inner part of his left thigh, a considerable number of bruises on the upper parts of both buttocks, several sores and bruises on the front of both ankles, and sores on the bridge of his nose. The date printed on the photographs is 12 November 2003.

On the same date the applicant gave an account of the 5-6 November events to the Ombudsman’s representatives in writing. He submitted that on 6 November 2003 he had been forced to write that he had no complaints against the police.

On 13 November 2003 the Ombudsman wrote to the Ministry of the Interior that the applicant’s situation called for investigation.

On the same date a doctor examined the applicant and discovered sixteen bruises on his face, arms, buttocks and legs (with the largest one measuring 21 x 20 centimetres), as well as sores on his wrists and feet. He concluded that the injuries were not serious, and that they had been inflicted by blunt objects, possibly on 5 or 6 November 2003.

On 17 November 2003 an investigator of TUM-4 and the Chief Inspector of Staff of the Kyiv Police Department (начальник Інспекції по особовому складу РУ МВС України) questioned the applicant about his alleged ill-treatment.

On 21 November 2003 another investigator of TUM-4 ordered another forensic medical examination aimed at answering the following questions: whether the applicant had any injuries on his body and, if so, how they had been inflicted; whether those injuries could have been inflicted on 5 or 6 November 2003; and how serious they were.

On 25 December 2003 the Solomyanskyy District Prosecutor’s Office (“the SDPO”) instituted a criminal investigation, without naming any specific individuals, into the allegation that Solomyanskyy District police officers had exceeded their powers by engaging in violent and degrading treatment of the applicant. The investigation was entrusted to SDPO investigator N.

On 26 January 2004 a new forensic medical report confirmed the results of the applicant’s medical examination of 13 November 2003.

On 9 February 2004 the investigator ordered another medical examination to clarify: whether the applicant could have inflicted the injuries on himself; whether he could have sustained those injuries by falling; what his body position had been during the infliction of the injuries; and whether he could have sustained them in self-defence.

On 12 February 2004 an expert report answered those questions as follows: the injuries were to parts of the applicant’s body on which self-infliction would be possible; the possibility that they had been the result of a fall was excluded; and the remaining two questions could not be answered.

In the meantime, on 11 February 2004, the applicant was assigned victim status.

On 6 April 2004 the investigator questioned the forensic medical expert, who confirmed that the applicant could have sustained his injuries at the time and under the circumstances described by him.

On 20 April 2004 the SDPO opened a criminal case against police officers T. and Z. on suspicion of abuse of power associated with violence and degrading treatment (Article 365 § 2 of the Criminal Code), given that the applicant had recognised them as those who had allegedly tortured him.

On the same date those officers were suspended from duty.

On 30 April 2004 they were indicted, and the case was sent to the Golosiyivskyy District Court of Kyiv (“the Golosiyivskyy Court”).

On 9 August 2004 the Golosiyivskyy Court directed the SDPO to find out with whom the applicant had shared cells from 6 to 12 November 2003 and to question these persons.

On 20 October 2004 the court referred the case back to the SDPO for additional investigation, which was to clarify the origin of the applicant’s injuries given that, on the one hand, they were to parts of his body on which self-infliction would be possible and, on the other hand, his cell-mates at the time had not been identified or questioned.

On 22 January 2005 the forensic medical expert, repeatedly questioned by the investigator, confirmed again her earlier findings that the applicant’s injuries could have been inflicted as he had described.

On 8 February 2005 formal charges were brought against T. and Z. under Article 365 § 2 of the Criminal Code.

On 18 February 2005 the SDPO invited the Kyiv Chief of Police to consider suspending T., who had resumed his work as a police officer at some point in the meantime, from his duties.

On 25 March 2005 the SDPO approved a bill of indictment against T. and Z. and sent the case to the Golosiyivskyy Court for examination.

On 26 April 2005 the trial began.

On 16 May 2005 the applicant lodged a civil claim seeking compensation for non-pecuniary damage in the amount of 200,000 Ukrainian hryvnias (UAH).

On 16 August 2005 the Golosiyivskyy Court found T. and Z. guilty and sentenced them to four years’ imprisonment with a prohibition on working in law-enforcement bodies for two years. The prison sentence was suspended for two years on probation. The court also awarded the applicant UAH 20,000 in compensation for non-pecuniary damage, to be paid by the defendants.

While both defendants admitted that they had questioned the applicant on the night of 5-6 November 2003 in the police station at Povitroflotskyy Avenue, they denied any coercion. However, the court found that there was sufficient evidence to establish their guilt. It took into account statements by several witnesses, who had seen the applicant during the day before his arrest without any visible injuries. Furthermore, the court relied on the statements of the applicant’s cell-mates in TUM-4 at Shutov Street (where he had been placed in the afternoon of 6 November 2003), who, on the one hand, had seen numerous bruises and sores on his body, but, on the other, denied any ill-treatment in TUM-4. Also, the police officers who had escorted the applicant from the police station at Povitroflotskyy Avenue to TUM-4 on 6 November 2006 stated that at that time his face was already bruised and swollen. The court also examined the photographs of the applicant taken by the Ombudsman’s representatives on 12 November 2003 and relied on the findings of the medical reports of 26 January and 12 February 2004. It noted that the applicant’s description of the police station garage where he had allegedly been ill-treated, was very detailed and subsequently confirmed as accurate, which showed that he had indeed been there.

On 13 February 2006 the Court of Appeal quashed the judgment and remitted the case for additional investigation. It concluded that the investigation had been incomplete, mainly because it had failed to establish how exactly the injuries had been inflicted on the applicant.

On 22 March 2006 investigator S. of the SDPO took the case over.

On 21 April 2006 he ordered another forensic medical examination with a view to clarifying the number, nature, location, origin and date of each of the applicant’s injuries.

On 15 May 2006 an expert report was produced, which confirmed the findings of the earlier reports. It further specified that the abrasions on the applicant’s wrists could have been caused by handcuffs, while the bruises could have been caused by being punched, kicked or hit with a truncheon.

On 24 July 2006 the investigator instructed the Kyiv Chief of Police to find the truncheon with which the applicant could have been beaten. The reply given on 27 July 2006 stated that it could not be found.

On 25 July 2006 T. was again suspended from duty (it is not known when he resumed his duties following the earlier removal).

On 22 August 2006 investigator S. decided to withdraw from the case. He considered that the evidential basis was limited to the applicant’s allegations and not corroborated by any other valid evidence. The investigator grounded his withdrawal by that view and further referred to the principle of the impartiality of the investigation.

On the same date the SDPO reversed that withdrawal as lacking legal basis.

On 27 March 2007 the investigator applied to the Deputy General Prosecutor for an extension of the term of the pre-trial investigation to eight months (the six-month term was to expire on 7 April 2007) given that the accused had not yet studied the case file. In the application the investigator however indicated that T. and Z. had been protracting the investigation by taking an unjustifiably long time to familiarise themselves with the file and by unmeritorious requests for unnecessary investigation measures.

On 16 June 2007 the SDPO indicted T. and Z. again.

On 30 July 2007 the Golosiyivskyy Court started the examination of the case.

On 17 September 2007 the applicant brought a new civil claim against T. and Z. within the criminal proceedings.

During the period between September 2007 and March 2008 the court adjourned hearings eight times for a total of over three months because of the absence of a number of witnesses.

On 7 March 2008 the Golosiyivskyy Court again remitted the case for additional investigation on the following grounds: the defendants’ lawyer had been deprived of his licence at some point during the pre-trial investigation, but had nonetheless continued to represent them. As a result, the court considered that the defence rights of T. and Z. had been violated.

On 29 May 2008 the Court of Appeal quashed that decision and referred the case back to the first-instance court, allowing the public prosecutor’s appeal.

On 10 July 2009 the Golosiyivskyy Court issued a special ruling (окрему ухвалу) bringing to the attention of the Kyiv Chief of Police the latter’s failure to comply with the court orders of 14 April, 20 May and 19 June 2009, that the obligatory attendance of numerous witnesses should be ensured. The orders were that the police were to take appropriate measures and report to the court.

On 21 July 2009 the applicant wrote the following statement addressed to the President of the Golosiyivskyy Court:

“I, Teslenko Anatoliy Grigoryevich, would like to make the following statement. The Golosiyivskyy District Court of Kyiv is currently examining a case against the Chief of the Criminal Investigation Department [T.] and [Z.], in which I am a victim. I retract the statements which I gave in the prosecutor’s office under pressure from the investigator and in court, namely that it was precisely [T. and Z.] who had beaten and humiliated me. The investigator [N.] demanded that I identify [T. and Z.]. In exchange, he promised I would be acquitted and that criminal department officials would be held liable. I remembered [T.] because he had been the Chief, and [Z.] because he had been wearing glasses. I could recognise only those two, as I could not, and do not now, remember any other officers. I was beaten up at Shutov Street, no. 3, as they really needed my confession to the robbery. But I did not remember any officers from Shutov [street], and I was advised to incriminate those I remembered. When the investigator [N.] came to see me, I was at a loss and did not know what to tell him. But he reassured me and told me that I did not have to worry and that I was to testify against those I remembered. As to what exactly I had to tell and to show, he told that he would help me. At the same time, he promised that if I followed his advice I would be at liberty shortly. It is very difficult for me now to testify before the court, for I have got confused in my statements because it was the investigator [N.] who gave them to me. I therefore request you not to disturb me any longer regarding the case of [T. and Z.] and not to bring me to the court”.

On 18 September 2009 the Golosiyivskyy Court directed the SDPO investigator to establish the actual places of residence of twenty-two witnesses whose obligatory presence had been ordered, but who had failed to attend and whom the police had failed to bring to the courtroom. Ten of the witnesses in question were police officers, nine were detained (at the time) in the police stations where the applicant had been placed on 6 November 2003, two were acquaintances of the applicant, and one was the forensic expert.

On 6 October 2009 the Golosiyivskyy Court also ordered obligatory attendance by the applicant, who had been released from prison in the meantime in July 2009 and had not been appearing for hearings.

On 19 October 2009 the police informed the court that the applicant’s actual place of residence could not be established.

On 24 March and 18 May 2010 the court ordered mandatory attendance by the applicant, to be ensured by the police.

On 24 June 2010 the Golosiyivskyy Court referred the case for additional investigation, given the need to question the applicant regarding his statement of 21 July 2009.

On 20 September 2010 the Kyiv Court of Appeal quashed the aforementioned decision and remitted the case to the first-instance court for examination. The parties did not provide the Court with a copy of this ruling.

According to the most recent information submitted by the Government in February 2011, the case remains pending before the Golosiyivskyy Court.

Article 365 § 2, as worded in November 2003, provided for three to eight years’ imprisonment with a prohibition on holding certain offices or carrying out certain activities for a period of up to three years as punishment for exceeding one’s power by engaging in the violent or degrading treatment of a victim.

The relevant extracts from Chapter 3.3 provide as follows:

“... On 11 November 2003 the mother of detained A. Teslenko complained [to the Ombudsman] that her son had been tortured in the Solomyanskyy Police Department (у Солом’янському РУ ГУ МВС України в м. Києві). Staff members of the Ombudsman’s Secretariat verified this allegation on site and found numerous traces of beatings on the body of A. Teslenko (photos were taken).

A. Teslenko gave the following explanations to the staff of the Ombudsman’s Secretariat: “I was tortured for thirteen hours in the district police station. Trying to extract a confession to a crime from me, they beat me, forced me to stand with my legs wide apart (садили на «шпагат»), prevented me from breathing by putting a plastic bag over my head, hanged me naked from handcuffs and poured cold water on me for forty minutes, threatening to make a General Karbyshev out of me. To conceal the torture, they forced me to write a statement that I had injured myself by an accidental fall on my way home the previous evening and that I had no complaints against the police.”

By the way, this is a typical example: police officers often force the victims of torture to write a no-complaint statement under threats that the torture will continue or in exchange for release. Later on [such statement] is used by the police as a key proof of their innocence as regards any injuries sustained by the person.

After its own investigation and the Ombudsman’s application to the General Prosecutor’s Office concerning the verification of A.Teslenko’s allegations, the Solomyanskyy District Prosecutor’s Office opened a criminal case concerning the police officers, which is now being examined by the Golosiyivskyy District Court of Kyiv. ...”


Remainder inadmissible;Violation of Art. 6-1;No violation of Art. 6-1 (length);Pecuniary damage - claim dismissed;Non-pecuniary damage - finding of violation sufficient;Costs and expenses award - Convention proceedings;Costs and expenses (domestic proceedings) - claim dismissed

The applicant was born in 1957 and lives in the town of Artemivsk, the Donetsk region.

On 14 August 1997 the applicant was transferred from her position of deputy director of the Joint Stock Company “Artemivska Raiagrotekhnika” (“the Company”) to the position of economist.

On 17 September 1997 she instituted proceedings in the Artemivsk Town Court (“the Artemivsk Court”) against the Company, seeking reinstatement in the position of deputy director.

On 20 October 1997 the applicant was dismissed from the position of economist, as she refused to take up her new duties.

In November 1997 she lodged with the Artemivsk Court a new claim against the Company, seeking annulment of her dismissal, recovery of salary arrears and compensation. The new claim was joined to the initial proceedings.

On 27 January 1998 the applicant challenged the judge, Mr B., who was dealing with her case, and the Artemivsk Court, alleging that they lacked impartiality, as the Company had produced and installed window grids in the court's new building free of charge. On 30 January 1998 the President of that court, Mr V.L.G., rejected the applicant's motion on the grounds that it did not contain any reasons for the disqualification of the judge.

By letter of 16 February 1998, the President of the Artemivsk Court requested the Chairman of the Executive Board of the Company to provide the court with a computer. The letter read as follows:

“The Artemivsk Town Court of the Donetsk Region requests you to provide a computer for the court's use.”

The letter also contained a handwritten resolution, allowing the request.

On 2 March 1998 the court found in part for the applicant. It annulled the Company's order of 14 August 1997. On 20 April 1998 the Donetsk Regional Court quashed the decision of the first instance court and remitted the case for a fresh consideration.

On 16 December 1998 the Artemivsk Court found in part for the applicant. It ordered the Company to pay the applicant UAH 440.77 in salary arrears and other payments. The court further rejected the applicant's claim against her dismissal.

The applicant appealed in cassation. On 25 January 1999 the Donetsk Regional Court quashed the decision of 16 December 1998 concerning the pecuniary award and remitted that part for a fresh consideration.

On 2 April 1999 the Artemivsk Court found against the applicant. On 24 May 1999 the Donetsk Regional Court rejected the applicant's appeal in cassation.

On an unspecified date the President of the Donetsk Regional Court lodged a protest (a request for a supervisory review) with the Presidium of that court, seeking annulment of the decisions of 2 April and 24 May 1999. On 14 July 1999 the Presidium allowed the protest, quashed those decisions and remitted the case for a fresh consideration.

On 6 September 1999 the applicant challenged the impartiality of the Artemivsk Court. On 19 October 1999 the President of the court rejected the applicant's motion as unsubstantiated.

On 6 March 2000 the applicant changed her claim, seeking modification of the reasons for her dismissal, recovery of salary arrears and compensation.

On 9 March 2000 the Artemivsk Court found in part for the applicant. It ordered that the reasons for the applicant's dismissal be changed and awarded her UAH 8,071.75 in salary arrears and other payments. That decision was not appealed against and became final.

On an unspecified date the Deputy President of the Donetsk Regional Court lodged a protest with the Presidium of that court, seeking annulment of the decision of 9 March 2000 as regards the pecuniary award. On 5 July 2000 the Presidium allowed the protest, quashed the decision of 9 March 2000 in respect of the award and remitted that part for a fresh consideration.

On 24 October 2000 the Artemivsk Court found in part for the applicant and ordered the Company to pay her UAH 8,689.08 in salary arrears and other payments. That decision was not appealed against.

On an unspecified date the Acting President of the Donetsk Regional Court lodged a protest with the Presidium of that court, seeking annulment of the decision of 24 October 2000. On 20 June 2001 the Presidium allowed the protest, quashed the decision of the first instance court and remitted the case for a fresh consideration.

On 7 September 2001 the applicant lodged with the Artemivsk Court an appeal in cassation against the decision of 20 June 2001. On 13 September 2001 the President of the Artemivsk Court rejected the applicant's appeal in cassation, as the disputed decision could not be appealed.

The Artemivsk Court scheduled a hearing in the case for 31 July 2001. Following the applicant's request, the hearing was postponed until 5 October 2001.

On 5 November 2001 the President of the court, sitting as a single judge, found against the applicant.

In her appeal against the decision of 5 November 2001, the applicant raised a complaint of actual bias of the President of the Artemivsk Court, alleging that the court had received certain goods due to 'unofficial' relations between the Company's management and Mr V.L.G.

On 21 February 2002 the Donetsk Regional Court upheld the decision of 5 November 2001. The court did not deal with the applicant's allegations of bias on the part of the President V.L.G.

On 14 May 2002 the applicant appealed in cassation. On 19 August 2002 the Supreme Court of Ukraine refused to consider the applicant's appeal for being lodged out of time. It further held that the first instance court should have ruled on the admissibility of the applicant's appeal in cassation.

On 18 September 2002 the applicant requested an extension for lodging an appeal in cassation. On 19 September 2002 the Artemivsk Court granted her the extension requested, finding that the applicant had complied with the statutory time-limit for lodging her appeal in cassation.

On 1 October 2002 the applicant lodged with the same court her new appeal in cassation, in which she reiterated her complaint about actual bias of the President V.L.G.

On 21 April 2003 the panel of three judges of the Supreme Court of Ukraine, sitting in camera, rejected the applicant's request for leave to appeal in cassation, having found that there were no grounds for referring the case to the Civil Chamber of the Supreme Court.

According to the records provided by the Government, out of around fifty-three hearings held between September 1997 and April 2003 seven were adjourned due to the absence or at the request of the applicant. Twelve hearings were adjourned because of the absence of the representatives of the defendant company.

Article 18 of the Code provided five grounds on which a judge could be challenged and should withdraw from the case:

if he participated at an earlier stage of the proceedings as a witness, expert, interpreter, representative, prosecutor, court secretary;

if he was personally interested, directly or indirectly, in the outcome of the proceedings;

if his relatives took part in the proceedings;

if he had particular relations with the persons who took part in the proceedings; or

if there were other reasons for which his impartiality could be doubted.

Under Articles 20-21, the persons who took part in the proceedings could lodge a motivated application for withdrawal of a judge. The application should be examined by the court hearing the case.

According to Article 291, the resolutions adopted by the courts concerning the applications for withdrawal of a judge could not be appealed against. The parties could, nonetheless, submit their objections against such resolutions together with their appeal against the judgment in their case.

Pursuant to Articles 301 and 305, the court of appeal verified whether the decision of the first instance court was lawful and duly reasoned. The court of appeal had the power to examine new evidence, and the evidence which allegedly had not been examined in compliance with the Code. It was entitled:

to reject an appeal;

to quash the judgment of the first instance court and to remit the case for a fresh consideration, if a procedural violation prevented the court of appeal to examine new evidence or the evidence which the first instance court had not examined;

to quash the judgment of the first instance court and to discontinue the proceedings;

to change the judgment or to adopt a new judgment.

According to Article 307, the judgment of the first instance court should be quashed and the case should be remitted for a fresh consideration:

if the case had been considered by a person, who had not been entitled to sit as a judge in the case;

if the judgment had been adopted or singed by a judge who had not heard the case;

if the case had been heard in absence of a person who had not been duly informed about the time and place of a hearing; or

if the judgment concerned the rights and obligations of persons who had not participated in the case.

Under Article 320, the grounds for an appeal in cassation were incorrect application of substantive law by the lower courts or violation of procedural rules. Article 328 provided that the case should be referred to the Chamber of the Supreme Court:

if the appeal raised an issue of incorrect application of the procedural rules by lower courts;

if a similar case was pending before the Chamber;

if application of the law by lower courts run contrary to the practice of the court of cassation; or

if the court of appeal had acted as a first instance court in the case.

The case could also be referred to the Chamber if the decisions had significant importance for uniform application of the law, or if the appeal contained information about the erroneous application of substantive or procedural law which had led or could have led to the wrongful decision in the case.

Pursuant to Article 321 of the Code, an appeal in cassation was to be lodged within three months after the decision of a court of appeal had been pronounced. By the Act of 7 March 2002, which came into force on 4 April 2002 and was later repealed as of 1 September 2005, the above time-limit was reduced to one month. The time-limit for lodging an appeal in cassation could be extended by a first instance court, if it found that the initial time-limit had not been complied with for good reasons.

Article 329 of the Code provided for the filter of appeals in cassation by a panel of three judges of the Supreme Court who were entitled to decide whether or not leave to appeal should be granted. No participation of the parties was foreseen at that stage of proceedings. Leave to appeal was granted unless the panel unanimously decided otherwise.

Pursuant to Article 334, the court of cassation had power:

to reject an appeal;

to quash, in full or in part, the decision at issue and to remit the case for a fresh consideration to the court of first instance or the court of appeal;

to quash the decision of the court of appeal and to uphold the judgment of the first instance court;

to quash the decisions in the case and to discontinue the proceedings; or

to change the decision on the merits of the case.

According to section 19 of the Act, the regional departments of justice (territorial branches of the Ministry of Justice) were responsible for technical maintenance of the district and town courts.

Under section 26 of the Act, the president of a district or town court exercised specific managerial and procedural functions. The president presided in court hearings, appointed judges to preside in a hearing, and distributed work among judges. He was also responsible for regular meetings with citizens, explanation of the law to them, and receiving complaints and propositions from them. The president oversaw the work of the registry and bailiffs. He organised the work on judicial statistics, standardisation of judicial practice, and training of the court staff.


The applicant, Elfriede Strasser, is an Austrian national, born in 1947 and living in Salzburg. She is represented before the Court by Mr F. Hitzenbichler, a lawyer practising in Salzburg.

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

On 5 June 1989, the applicant filed an action with the Salzburg District Court (Bezirksgericht) requesting the repayment of rent and of capital expenditure (Investitionskostenaufwand) from her lessor. In these and the subsequent proceedings the applicant was represented by counsel.

On 18 December 1991, the District Court dismissed the action. The applicant appealed against this decision on 6 February 1992.

On 4 May 1992, the Salzburg Court of Appeal (Oberlandesgericht) referred the case back to the Salzburg District Court requesting that additional evidence be taken. As regards the capital expenditure the applicant appealed against this decision on 4 June 1992.

On 31 August 1992, the Supreme Court dismissed the appeal and confirmed the Court of Appeal’s decision to refer the case back to the Salzburg District Court for the taking of additional evidence.

The District Court held hearings on 16 March and 7 June 1993. An expert was appointed on 17 August 1993, who submitted his opinion on 28 September 1994. Following a change of the competent judge a further hearing was held on 2 May 1995 where the expert was present and orally explained his opinion.

On 7 July 1995, the District Court, having regard to the submissions of the parties, the witnesses, and the experts, rendered a partial judgment granting the applicant’s claim for repayment of certain sums which she had paid in rent. Her claim for repayment of capital expenditure was admitted in substance, the precise amount remaining to be fixed after the taking of further evidence.

On 27 November 1995, the Salzburg Court of Appeal dismissed the applicant’s appeal as far as the claim for capital expenditure was concerned.

The defendant filed a further appeal on points of law on 6 February 1996. Thereupon, on 25 October 1996, the Supreme Court confirmed the Court of Appeal’s decision as to the claim for repayment of rent, but agreeing with the defendant dismissed the applicant’s claim for compensation for capital expenditure finding that the Court of Appeal had wrongly applied the law in this respect. The decision was served on 2 December 1996.

Section 91 of the Courts Act (Gerichtsorganisationsgesetz), which has been in force since 1 January 1990, provides as follows.

"(1) If a court is dilatory in taking any procedural step, such as announcing or holding a hearing, obtaining an expert’s report, or preparing a decision, any party may submit a request to this court for the superior court to impose an appropriate time-limit for the taking of the particular procedural step; unless sub-section (2) of this section applies, the court is required to submit the request to the superior court, together with its comments, forthwith.

(2) If the court takes all the procedural steps specified in the request within four weeks after receipt, and so informs the party concerned, the request is deemed withdrawn unless the party declares within two weeks after service of the notification that it wishes to maintain its request.

(3) The request referred to in sub-section (1) shall be determined with special expedition by a chamber of the superior court consisting of three professional judges, one of whom shall preside; if the court has not been dilatory, the request shall be dismissed. This decision is not subject to appeal."