No violation of Art. 6-1 as regards parliamentary immunity;No violation of Art. 6-1 as regards lack of legal aid;No violation of Art. 8;No violation of Art. 14+6;No violation of Art. 13

The applicant is a United Kingdom national, born in 1971 and living in Bristol. She lives with her two children in a house owned by the local housing association, Solon Housing Association (SHA).

The SHA moved the applicant and her children to 50 Concorde Drive in 1994 following a report that she was suffering serious racial abuse at her then current address.

Concorde Drive is in the parliamentary constituency of Bristol NorthWest. On 17 July 1996, the member of Parliament (MP) for the Bristol North-West constituency, Mr Michael Stern, initiated a debate on the subject of municipal housing policy (and the SHA in particular) in the House of Commons. During the course of his speech, the MP referred specifically to the applicant several times, giving her name and address and referring to members of her family. He commented as follows:

“The subject of anti-social behaviour by what newspapers frequently call 'neighbours from hell' has been a staple of social housing throughout the country for some time, and the government are, of course, in the process of taking steps to provide local authorities with the power to do something about such behaviour. Whether authorities such as Bristol will actually use the power is another matter.

My reason for raising the subject of 50 Concorde Drive in my constituency and the behaviour of its shifting population is not just to draw attention to another example of neighbours from hell; it is also to note that housing practices by local authorities, which it appeared had been stamped out in the 1970s, are beginning to re-emerge in the voluntary housing movement. ...

Solon Housing Association (South-West) Ltd purchased 50 Concorde Drive in my constituency in the early 1990s ... and in early 1994 it moved in as the new tenants [the applicant] and her two children, who are now aged three and six. Her brother, currently in prison, also gives 50 Concorde Drive as his permanent address. ...

The Government's own Green Paper, 'Anti-Social Behaviour on Council Estates', published in April 1995, noted:

'Such behaviour manifests itself in many different ways and at varying levels of intensity. This can include vandalism, noise, verbal and physical abuse, threats of violence, racial harassment, damage to property, trespass, nuisance from dogs, car repairs on the street, joyriding, domestic violence, drugs and other criminal activities such as burglary.'

Inevitably, the majority – if not all – of these activities have been forced on the neighbours of 50 Concorde Drive during the tenancy of that property and the garage further up the street that goes with it, by [the applicant], her children and their juvenile visitors, who seem strangely reluctant to attend school during normal hours, and even more adult visitors who come to the house at all times of the day and night, frequently gaining entry by unorthodox means such as the bathroom window. Indeed, it is fair to say that there have been times when occupation of the house by the visitors has been more frequent than that of [the applicant].

So far as the garages grouped further along Concorde Drive are concerned – one of the garages automatically comes with the tenancy of No. 50 – complaints consist of numerous youths hanging around, vandalising cars, climbing on and damaging the garage roofs, under the apparent leadership, or at least the spirited concurrence of the [applicant's] family, adult and children, which makes improvement of those garages by other owners a complete waste of time. More seriously, arson inside the garage belonging to No. 50, and the regular destruction of its doors, have led other legitimate users of the garage to park their vehicles elsewhere for safety reasons.

But it is the conduct of [the applicant] and her circle which gives most cause for concern. Its impact on their immediate neighbours extends to perhaps a dozen houses on either side. Since the matter was first drawn to my attention in 1994, I have received reports of threats against other children; of fighting in the house, the garden and the street outside; of people coming and going 24 hours a day – in particular, a series of men late at night; of rubbish and stolen cars dumped nearby; of glass strewn in the road in the presence of [the applicant] and regular visitors; of alleged drug activity; and of all the other common regular annoyances to neighbours that are associated with a house of this type.”

The applicant denies the truth of the majority of the allegations. The MP has never tried to communicate with her regarding the complaints made about her by her neighbours and has never attempted to verify the accuracy of his comments made in his speech either before or after the debate. Shortly before the debate, the MP issued a press release to several newspapers, including the Bristol-based Evening Post and the national Daily Express. The press release was subject to an embargo prohibiting disclosure until the precise time when the speech commenced. The contents of the press release were substantially the same as those of the MP's speech. The following day, both newspapers carried articles consisting of purported extracts of the speech, although these were based upon the press release. Both articles included photographs of the applicant and mentioned her name and address. The main headline in the Evening Post was:

“MP Attacks 'Neighbours From Hell' ”

In the Daily Express the headline was:

“MP names nightmare neighbour”

The applicant was approached by journalists and television reporters asking for her response to the MP's allegations and her comments were summarised in each newspaper the same day, although they were not given as much prominence.

The applicant subsequently received hate mail addressed to her at 50 Concorde Drive. One letter stated that she should “be in houses with your own kind, not in amongst decent owners”. Another letter stated:

“You silly black bitch, I am just writing to let you know that if you do not stop your black nigger wogs nuisance, I will personally sort you and your smelly jungle bunny kids out.”

The applicant was also stopped in the street, spat at and abused by strangers as “the neighbour from hell”.

On 7 August 1996 a report was prepared for the SHA by a group which monitors racial harassment and attacks. The report found that “it has now come to the point where [the applicant] has been put in considerable danger as a result of her name being released to the public”. The report recommended that the applicant be re-housed as a matter of urgency. She was re-housed in October 1996 and her children were obliged to change schools.

On 2 August 1996 the applicant wrote through her solicitors to the MP outlining her complaints and seeking his comments thereon. The letter was referred to the Office of the Parliamentary Speaker by the MP. The Speaker's representative replied to the MP on 12 August 1996 to the effect that the MP's remarks were protected by absolute parliamentary privilege:

“Subject to the rules of order in debate, Members may state whatever they think fit in debate, however offensive it may be to the feelings or injurious to the character of individuals, and they are protected by this privilege from any action for libel, as well as from any other molestation.”

This letter was copied and forwarded to the applicant's solicitors in September 1996.

Also on 2 August 1996, the applicant's solicitors wrote to the then Prime Minister, Mr John Major, asking that, as leader of the political party to which Mr Stern belonged, he investigate the applicant's complaints and take appropriate action. The Prime Minister's Office replied on 6 August 1996, stating that:

“It is a matter for individual Members of Parliament to decide how they deal with their constituents and it is not for the Prime Minister to comment. There is a strict Parliamentary convention that Members of Parliament do not intervene in the affairs of other Members' constituencies and this applies equally to the Prime Minister.”

Words spoken by MPs in the course of debates in the House of Commons are protected by absolute privilege. This is provided by Article 9 of the Bill of Rights 1689, which states:

“... the freedome of speech and debates or proceedings in Parlyament ought not to be impeached or questioned in a court or place out of Parlyament.”

The effect of this privilege was described by Lord Chief Justice Cockburn in Ex parte Watson (1869) Queen's Bench Reports 573 at 576:

“It is clear that statements made by Members of either House of Parliament in their places in the House, though they might be untrue to their knowledge, could not be made the foundation of civil or criminal proceedings, however injurious they might be to the interest of a third party.”

Statements made by MPs outside the Houses of Parliament are subject to the ordinary laws of defamation and breach of confidence, save where they are protected by qualified privilege.

The question whether or not qualified privilege applies to statements made in any given political context turns upon the public interest. In Reynolds v. Times Newspapers Ltd [2001] 2 Appeal Cases 127, which concerned allegations made in the British press about an Irish political crisis in 1994, Lord Nicholls of Birkenhead stated in the House of Lords, at page 204:

Depending on the circumstances, the matters to be taken into account include the following. The comments are illustrative only. 1. The seriousness of the allegation. The more serious the charge, the more the public is misinformed and the individual harmed, if the allegation is not true. 2. The nature of the information, and the extent to which the subject matter is a matter of public concern. 3. The source of the information. Some informants have no direct knowledge of the events. Some have their own axes to grind, or are being paid for their stories. 4. The steps taken to verify the information. 5. The status of the information. The allegations may have already been the subject of an investigation which commands respect. 6. The urgency of the matter. News is often a perishable commodity. 7. Whether comment was sought from the plaintiff. He may have information others do not possess or have not disclosed. An approach to the plaintiff will not always be necessary. 8. Whether the article contained the gist of the plaintiff's side of the story. 9. The tone of the article. A newspaper can raise queries or call for an investigation. It need not adopt allegations as statements of fact. 10. The circumstances of the publication, including the timing.”

Press coverage, to the extent that it fairly and accurately reports parliamentary debates, is generally protected by a form of qualified privilege which is lost only if the publisher has acted “maliciously”. “Malice”, for this purpose, is established where the report concerned is published for improper motives or with “reckless indifference” to the truth. A failure to make proper enquiries is not sufficient in itself to establish malice, but it may be evidence from which malice (in the sense of reckless indifference to the truth) can reasonably be inferred.

MPs can waive the absolute immunity which they enjoy in Parliament as a result of section 13 of the Defamation Act 1996, which provides:

“(1) Where the conduct of a person in or in relation to proceedings in Parliament is in issue in defamation proceedings, he may waive for the purposes of those proceedings, so far as concerns him, the protection of any enactment or rule of law which prevents proceedings in Parliament being impeached or questioned in any court or place out of Parliament.

(2) Where a person waives that protection –

(a) any such enactment or rule of law shall not apply to prevent evidence being given, questions being asked or statements, submissions, comments or findings being made about his conduct, and

(b) none of those things shall be regarded as infringing the privilege of either House of Parliament.

(3) The waiver by one person of that protection does not affect its operation in relation to another person who has not waived it.

(4) Nothing in this section affects any enactment or rule of law so far as it protects a person (including a person who has waived the protection referred to above) from legal liability for words spoken or things done in the course of, or for the purposes of or incidental to, any proceedings in Parliament.”

General control is exercised over debates by the Speaker of each House of Parliament. Each House has its own mechanisms for disciplining members who deliberately make false statements in the course of debates. Deliberately misleading statements are punishable by Parliament as a contempt. Alternatively, as the Parliamentary Select Committee on Procedure (1988-89) has observed:

“... there already exists a wide range of avenues which can be pursued by an aggrieved person who wishes to correct or rebut remarks made about him in the House. He can approach his Member of Parliament with a view to his tabling an Early Day Motion, or an amendment where appropriate; there may be cases which can be raised through Questions if some ministerial responsibility can be established; he can petition the House, through a Member; and he can approach directly the Member who made the allegations in the hope of persuading him that they are unfounded and that a retraction would be justified. We believe that in these circumstances, the House would not expect a rigid adherence to the convention that one Member does not take up a case brought by the constituent of another, particularly if the latter was the source of the statement complained of, and so long as the courtesies of proper notification were observed.”

Under Schedule 2, Part II of the Legal Aid Act 1988, “[p]roceedings wholly or partly in respect of defamation” are excepted from the scope of the civil legal aid scheme.

“Green Form” assistance is available to potential litigants with insufficient means in order to allow them to receive two hours' free legal advice from a solicitor in cases of alleged defamation. The time can be extended upon application.

Under section 58 of the Courts and Legal Services Act 1990, solicitors may enter into conditional fee agreements in respect of any type of proceedings specified in an Order made by the Lord Chancellor. A conditional fee agreement is defined under that section as an agreement in writing between a solicitor and his client which provides that the solicitor's fees and expenses, or any part of them, are to be payable only in specified circumstances. The Conditional Fee Agreements Order 1998 (Statutory Instrument 1860 of 1998) permitted conditional fee agreements in relation to “all proceedings”. The Order entered into force on 30 July 1998. A conditional fee agreement cannot prevent an unsuccessful litigant from being potentially liable to pay all or part of his opponent's costs in connection with the proceedings.

The limitation period applicable to defamation proceedings in respect of statements made in July 1996 was three years pursuant to section 4A of the Limitation Act 1980, as inserted by section 57(2) of the Administration of Justice Act 1985.

A joint committee of both Houses of Parliament was set up in July 1997 and tasked with reviewing the law of parliamentary privilege. The committee received written and oral evidence from a wide variety of sources from within the United Kingdom and abroad and held fourteen sessions of evidence in public. Its report was published in March 1999. Chapter 2 sets out its conclusions on parliamentary immunity:

“38. The immunity is wide. Statements made in Parliament may not even be used to support a cause of action arising out of Parliament, as where a plaintiff suing a member for an alleged libel on television was not permitted to rely on statements made by the member in the House of Commons as proof of malice. The immunity is also absolute: it is not excluded by the presence of malice or fraudulent purpose. Article 9 protects the member who knows what he is saying is untrue as much as the member who acts honestly and responsibly. ... In more precise legal language, it protects a person from legal liability for words spoken or things done in the course of, or for the purposes of or incidental to, any proceedings in Parliament.

A comparable principle exists in court proceedings. Statements made by a judge or advocate or witness in the course of court proceedings enjoy absolute privilege at common law against claims for defamation. The rationale in the two cases is the same. The public interest in the freedom of speech in the proceedings, whether parliamentary or judicial, is of a high order. It is not to be imperilled by the prospect of subsequent inquiry into the state of mind of those who participate in the proceedings even though the price is that a person may be defamed unjustly and left without a remedy.

It follows that we do not agree with those who have suggested that members of Parliament do not need any greater protection against civil actions than the qualified privilege enjoyed by members of elected bodies in local government. Unlike members of Parliament, local councillors are liable in defamation if they speak maliciously. We consider it of utmost importance that there should be a national public forum where all manner of persons, irrespective of their power or wealth, can be criticised. Members should not be exposed to the risk of being brought before the courts to defend what they said in Parliament. Abuse of parliamentary freedom of speech is a matter for internal self-regulation by Parliament, not a matter for investigation and regulation by the courts. The legal immunity principle is as important today as ever. The courts have a duty not to erode this essential constitutional principle.”

Article 40 of the Statute of the Council of Europe provides:

“(a) The Council of Europe, representatives of members and the Secretariat shall enjoy in the territories of its members such privileges and immunities as are reasonably necessary for the fulfilment of their functions. These immunities shall include immunity for all representatives to the Parliamentary Assembly from arrest and all legal proceedings in the territories of all members, in respect of words spoken and votes cast in the debates of the Assembly or its committees or commissions.

(b) The members undertake as soon as possible to enter into agreement for the purpose of fulfilling the provisions of paragraph (a) above. For this purpose the Committee of Ministers shall recommend to the governments of members the acceptance of an agreement defining the privileges and immunities to be granted in the territories of all members. In addition, a special agreement shall be concluded with the Government of the French Republic defining the privileges and immunities which the Council shall enjoy at its seat.”

In pursuance of paragraph (b) above, the member States, on 2 September 1949, entered into the General Agreement on Privileges and Immunities of the Council of Europe. This provides, in its relevant parts, as follows:

“Article 14

Representatives to the Parliamentary Assembly and their substitutes shall be immune from all official interrogation and from arrest and from all legal proceedings in respect of words spoken or votes cast by them in the exercise of their functions.

Article 15

During the sessions of the Parliamentary Assembly, the Representatives to the Assembly and their substitutes, whether they be members of Parliament or not, shall enjoy:

(a) on their national territory, the immunities accorded in those countries to members of Parliament;

(b) on the territory of all other member States, exemption from arrest and prosecution. ...”

Article 5 of the Protocol to the General Agreement on Privileges and Immunities of the Council of Europe provides:

“Privileges, immunities and facilities are accorded to the representatives of members not for the personal benefit of the individuals concerned, but in order to safeguard the independent exercise of their functions in connection with the Council of Europe. Consequently, a member has not only the right but the duty to waive the immunity of its representative in any case where, in the opinion of the member, the immunity would impede the course of justice and it can be waived without prejudice to the purpose for which the immunity is accorded.”

Article 9 of the Protocol on the Privileges and Immunities of the European Communities, adopted in accordance with Article 28 of the Treaty establishing a Single Council and a Single Commission of the European Communities, provides:

“Members of the European Parliament shall not be subject to any form of inquiry, detention or legal proceedings in respect of opinions expressed or votes cast by them in the performance of their duties.”

Under Article 57 § 1 of the Federal Constitutional Law members of the Nationalrat (the lower house of Parliament) may never be held liable for votes cast in the exercise of their functions or on the ground of oral or written statements made in the course of their functions – so-called “professional immunity”. In these matters, members enjoy immunity from criminal, civil and administrative proceedings. The President however may require a member to keep to the subject or call the member to order if he/she violates the decency and dignity of the House or makes defamatory statements (section 102 of the Standing Orders Act).

Under Article 57 § 3, criminal or civil proceedings against an MP may be taken without the consent of the Nationalrat only where they are “manifestly not connected with the political activity of the member in question” – so-called “non-professional immunity”. MPs may therefore be subject to civil proceedings, the issue of whether the matter has manifestly no connection with their duties being determined by the prosecuting authorities. Where the authority considers that that connection is manifest or unclear, it must seek the consent of the Nationalrat. Where the MP concerned or one-third of the members of the Immunity Committee require it, consent must also be asked of the Nationalrat. According to the prevailing view, this level of immunity merely prevents legal action for a limited period of time, proceedings becoming possible once the MP loses his/her immunity status.

The Austrian Government emphasised that these provisions had strong historical roots in the national legal system, serving to guarantee the protection of MPs in their political activity, in particular their freedom to vote and state their views.

Articles 58 and 59 of the Belgian Constitution prohibit proceedings against a member of either Federal Chamber of Parliament concerning the expression of opinion or votes cast. Save in the case of flagrant délit, no member of a Chamber may be summoned before a court or arrested during a parliamentary session unless the Chamber has given consent. This immunity, even against acts infringing the rights of citizens, is regarded in domestic law and practice as an essential guarantee for the functioning of the legislature and its absolute nature as essential to the efficacy of that guarantee. Private rights have to be regarded as ceding to the overriding public interest.

The Netherlands Government drew attention to Article 71 of the Netherlands Constitution, which confers upon members of the Senate and House of Representatives of the States General an immunity from every category of legal proceedings.

They pointed out that the right to parliamentary immunity in the Netherlands is not absolute. The Rules of Procedure of both the Senate and the House of Representatives cover cases in which an MP abuses the protection afforded by Article 71. The President in each Chamber may admonish any member who violates the Rules of Procedure and then offer the member concerned a chance to retract the offending remark. If the member refuses to make a retraction, or persists in violating the Rules of Procedure, the President may forbid him or her from speaking further or from attending the rest of the sitting or further sittings the same day. Similar immunities and disciplinary procedures apply at the provincial and municipal level.

The Netherlands Government submitted that parliamentary immunity is indispensable to the operation of democracy and that to give the judiciary authority over what MPs say in their deliberations would represent an unacceptable infringement of the separation of powers.

According to section 30(1) of the Constitution (1999), an MP shall not be prevented from carrying out his or her duties as a representative. Section 30(2) provides that an MP cannot be charged in a court of law or be deprived of liberty owing to opinions expressed by the representative in Parliament or owing to conduct in the consideration of a matter, unless Parliament gives consent by a majority of five-sixths of the votes cast. The provisions concerning parliamentary privilege and immunities have a long tradition in the work of Parliament, dating back to 1723. The only restriction on the exercise of the freedom of expression of a representative is the requirement in section 31(2) that a representative conduct himself or herself with decorum and not act offensively towards another person. If a representative breaches this condition, the Speaker may issue a warning or prohibit the representative from continuing to talk. Parliament may caution a representative who has repeatedly breached the order or suspend him or her for a maximum of two weeks.

A waiver of immunity may be requested by any person having the right to prosecute or to request prosecution. The Speaker examines whether the party has such a right and whether the intended prosecution concerns the MP's official actions. Parliament decides on such a request in ordinary session and the decisive question is whether the intended prosecution is of such a nature that there is a public or private interest to refer the matter to a court of law. In most cases, Parliament has deemed such requests manifestly ill-founded and rejected them. In no case based on alleged damage to another person's reputation or allegedly incorrect information given by an MP has a prosecution been authorised.

The Finnish Government considered that freedom of speech and the general freedom to act were essential for the performance of the duties of an MP.

The provisions in the French system which protect the representatives of the people in the performance of their duties date back to 1789, deriving from respect for the expression of the will of the people and the necessity in a democratic State for elected representatives to exercise their mandate freely without fear of legal action or interference from either the executive or the judiciary. The immunity bestowed is absolute in that it covers all acts carried out by MPs in the exercise of their functions regarding criminal and civil liability and permanent since it continues after expiry of their mandates. The immunity is not concerned with the private interests of the MP but with the function that he or she exercises. Thus, it cannot be waived by an individual MP.

However, the immunity conferred is strictly interpreted and does not extend to acts outside the exercise of the MP's mandate, including speech in a private capacity within the Assembly or statements in press articles even where these merely repeat statements made during an Assembly debate. Parliamentary immunity carries with it a requirement of discretion (devoir de réserve) and unacceptable forms of expression may be subject to internal admonition.

The Irish Government submitted that parliamentary immunity has developed throughout the world not as a constraint upon the rights of the citizen, but as a fundamental liberty. They argued that a cursory consideration of the history of the principle, its widespread domestic and international constitutional entrenchment and the case-law of the Court all suggest that parliamentary immunity is protected by the Convention. They supported this argument by reference to the preamble to the Convention.

The Irish Government pointed to, inter alia, Articles 15.10 and 15.13 of the 1937 Constitution of Ireland, which provide:

“[15.10] Each House shall make its own rules and standing orders, with power to attach penalties for their infringement, and shall have power to ensure freedom of debate ...

[15.13] The Members of each House of the Oireachtas [Parliament] ... shall not, in respect of any utterance in either House, be amenable to any court or any authority other than the House itself.”

Article 40.3.2 of the Constitution expressly recognises, and imposes upon the State, an obligation to defend and vindicate the citizen's right to his or her good name. However, the Irish Government indicated that there is no absolute right to reputation or protection from defamatory utterances under Irish law.

They drew attention also to the privileges and immunities enjoyed by representatives to the Parliamentary Assembly of the Council of Europe and members of the European Parliament (see paragraphs 33-36 above). They submitted that it was difficult to see how such immunities could be consistent with the Convention if the conferring by individual States of similar immunities in respect of their own Parliaments itself violated the Convention.

The Irish Government argued that the importance of the legitimate objectives pursued by parliamentary immunity was difficult to overstate and that it was for the national authorities to seek to balance the right of individual citizens to a good name with the right of free parliamentary expression. In reviewing the proportionality of the balance struck, they said that the Court must have regard to the fact that States were in principle better placed than an international court to evaluate local needs and conditions.

The Italian Government pointed out that parliamentary privilege is recognised by a large number of democratic countries across Europe and the rest of the world, including Italy, together with international bodies such as the Council of Europe and the European Union. They submitted that such a privilege is a fundamental aspect of the separation of powers and the rule of law, both of which are political traditions upon which the Convention and the Council of Europe were founded.

They stated that, notwithstanding a recent revision in Italy of the rules of parliamentary privileges and immunities, the protection of free speech in Parliament against interference by the courts has never been questioned there and continues to be considered essential to parliamentary government. In the event of any dispute between Parliament and the judiciary as to the application of a privilege, it is a “neutral” authority, in the form of the Italian Constitutional Court, which has the final decision. That court is made up of fifteen judges, five of whom are appointed by Parliament, five by the supreme courts and five by the President of the Republic.

The Italian Government submitted that parliamentary privilege pursues its legitimate aim in a proportionate manner, particularly since its scope is limited to parliamentary activity. They argued that MPs would not be able to speak their mind freely in Parliament in the absence of an absolute immunity.

There is no general provision granting members of Parliament (Storting) immunity from judicial processes. However, Article 66 of the Constitution confers immunity in two limited situations. Members cannot be arrested on the way to or from Parliament (unless apprehended in “public crimes”) and cannot be called to account outside the meetings of Parliament for opinions expressed there. This immunity comprises both criminal and civil liability, and extends even to speech where it is alleged that the member has intentionally expressed untruths or where the member has expressed himself or herself on a subject unconnected with the issue under debate. An individual member cannot waive the immunity. The absolute nature of the immunity is regarded as necessary to prevent undermining the general purpose of the provision, which is to guarantee the unfettered exchange of information and ideas in Parliament, being considered indispensable in the Norwegian democratic system.

However, a member may be held accountable within Parliament, improper or insulting behaviour being prohibited and subject to the potential sanction of a warning from the President or exclusion by Parliament from the right to speak or participate in the proceedings for the rest of the day.


The applicant is a German national, born in 1947 and living in Altenstadt, Germany. Until 21 July 2001, he was serving a prison term in the Czech Republic. He was placed under guardianship by the Weiden District Court (Amtsgericht) in 1995 and his health requires permanent medical control. Before the Court, he is represented by Mr R. Giebenrath, a lawyer practising in Offenburg and Strasbourg. The respondent Government are represented by their Agent, Mr E. Slavík, from the Ministry of Justice.

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

On 9 February 1994 the Sokolov District Court (okresní soud) (“the District Court”) convicted the applicant of assault on a public officer and sentenced him conditionally to a year’s imprisonment. The applicant was further prohibited from driving motor vehicles for one year. The District Court established that on 2 July 1993 the applicant had driven his car at a policeman who had attempted to stop him after he had committed a road traffic offence. The policeman saved himself by jumping to one side. The Sokolov District Attorney (okresní státní zástupce) appealed against the judgment.

On 7 June 1995 the Plzeň Regional Court (krajský soud) (“the Regional Court”) modified the first instance judgment in that it imposed an immediate fifteen month prison sentence on the applicant. It also prohibited the applicant from driving motor vehicles for two years. The Regional Court noted that the applicant is a foreigner without a permanent or temporary residence in the Czech Republic. It therefore considered that it would be impossible to control the applicant’s behaviour during a probationary period if a conditional prison sentence were imposed.

In its judgment the Regional Court pointed out that the District Court had acted erroneously in that it had held the main hearing on 6 January 1994 in the applicant’s absence without duly notifying him. It considered, however, that the evidence available permitted a decision in the case without taking into account the evidence heard at the main hearing before the District Court. The Regional Court therefore held that these shortcomings did not affect the decision on the merits of the case. It appears that the applicant did not attend the hearing before the appellate court and that he was represented by a lawyer appointed ex officio.

On the same day, the judgment of the Regional Court became enforceable. According to the Government, it was served on the applicant on 12 October 1995.

On 6 February 1996 the District Court ordered the applicant to reimburse the fees of the lawyer who had been appointed to represent him. On 17 August 1998 the Regional Court dismissed the applicant’s complaint about that decision. On 24 July 2000 a clerk of the District Court delivered a decision rectifying the sum the applicant actually had to pay.

In the meantime, on 21 June 2000, the applicant had been arrested by the Czech police. He was placed in the Horní Slavkov prison where he started serving his prison sentence. On 13 July 2000 he was transferred to the Kynšperk nad Ohří prison.

On 2 August 2000 the applicant complained to the director of the Kynšperk nad Ohří prison that he had some problems with his glasses and that the water had not been running for an hour.

In two letters dated 2 and 23 September 2000, respectively, the applicant complained to the Constitutional Court (Ústavní soud) in summary terms about the criminal proceedings leading to his conviction and the enforcement of the sentence.

On 24 September 2000 the applicant sent a letter to several institutions and officials, including the Constitutional Court, the Attorney General (Vrchní státní zástupce) and the director of the Kynšperk prison, in which he complained that the Czech authorities had failed to react to his written submissions and that he had not been provided with adequate medical care in prison. He also made a request for a desk and a typewriter.

On 12 October 2000 the applicant complained to the prison director that he was no longer allowed to prepare his application in the prison dining room. He explained that he could not concentrate on such work in the cell where he was detained together with ten or eleven other people.

On 27 October 2000 he complained in writing to the prison director that he was not allowed to use a typewriter or make copies of documents. He also alleged that he was not provided with adequate medical care.

In January 2001 the applicant was taken to a hospital in Brno for an examination of his mental health.

On 3 January 2001 the Vice-President of the Constitutional Court warned the applicant that his petitions to the Constitutional Court did not satisfy the formal requirements for lodging a constitutional appeal. He informed the applicant that an appellant must be legally represented before the Constitutional Court, must indicate his name, specify the subject of his constitutional appeal, sign the appeal and date it. He also informed the applicant about the sixty-day time-limit for lodging a constitutional appeal.

On 16 January 2001 the Ministry of Justice (Ministerstvo spravedlnosti) informed the applicant that his two requests for the introduction of a complaint for a breach of law (podnět k podání stížnosti pro porušení zákona), on 1 July and 1 August 2000, were rejected as having no basis.

According to the Government, on 4 April 2001, after a discussion between the applicant and the prison director, the latter held that the applicant would be provided with necessary aid for his correspondence and, in particular, that his correspondence would be sent without delay and given to him immediately upon its arrival at the prison.

By letter of 25 April 2001, the Czech Bar Association (Česká advokátní komora) acknowledged receipt of the applicant’s letter of 23 March 2001 which, however, they had found to be unclear. He was therefore invited to specify his claims. A list of German speaking lawyers was joined to the letter.

By letter of 8 June 2001 the applicant urged the Constitutional Court inter alia to decide on his constitutional appeals.

Article 10 provides that the ratified and promulgated international treaties on human rights and fundamental freedoms, by which the Czech Republic is bound, shall be applicable as directly binding regulations having priority over the law.

According to Article 3 § 1, fundamental human rights and freedoms are guaranteed to everybody irrespective of sex, race, colour of skin, language, faith, religion, political or other conviction, ethnic or social origin, membership of a national or ethnic minority, property, birth, or other status.

According to Article 8 §§ 1 and 2, personal liberty is guaranteed. Nobody shall be persecuted or deprived of their liberty save for reasons and in a manner prescribed by law.

Article 10 §§ 1 and 2 provides inter alia that everybody is entitled to protection of his/her human dignity or personal integrity, and against unauthorised interference with private or family life.

According to Article 13, nobody may violate the confidentiality of correspondence or other papers and records, whether privately kept or sent by post or in another manner, except in cases and in a manner specified by law.

Article 31 guarantees inter alia to everybody the right to the protection of his /her health.

Article 36 provides that everybody can claim his/her rights in a prescribed manner before an independent and impartial tribunal or, in certain cases, before another organ.

According to Article 38, everybody is entitled to a fair and public hearing within a reasonable time, in his/her presence, and to comment upon all the evidence submitted.

Section 72(1)(a) provides that a constitutional appeal may be introduced by any natural person who claims to be the victim of a breach of the fundamental rights or freedoms recognised in a constitutional law or an international treaty (Article 10 of the Constitution) by a legitimate decision taken in proceedings to which he/she was a party, and being a measure or interference by ‘a public authority’. According to paragraph 2, a constitutional appeal shall be submitted within a period of sixty days. If the law affords a remedy for the protection of rights, this period starts to run on the day when the final effective decision becomes enforceable or, if no such remedy exists, on the day on which the impugned events occurred.

According to section 75(1), a constitutional appeal is inadmissible if the applicant failed to exhaust all the procedural remedies available in law for the protection of his/her rights.

Section 30(1) provides that the applicant must be represented by an attorney, a commercial lawyer or a notary to the extent provided for in the relevant special law.

Section 34(1) provides that a constitutional appeal shall be submitted in writing to the Constitutional Court. The appeal shall include the following information: the person who is making the appeal, the matter to which it relates, and its object. The appeal must be signed and dated. Furthermore, it shall include a true description of the crucial facts, indicate the evidence which the applicant will introduce, and specify the claim. The appeal shall contain the other elements required by this Act. According to paragraph 2, the appeal shall be submitted in a sufficient number of copies so that the Constitutional Court as well as each party to the appeal may have a copy.

According to section 82, in its judgment the Constitutional Court shall hold that it allows the constitutional appeal in its entirety, dismisses it in its entirety, or partially allows and partially dismisses it. If the court allows the constitutional appeal, it shall inter alia declare in its judgment which of the constitutionally guaranteed rights or freedoms or which provision of a constitutional act or an international treaty were violated, and what act by a public authority perpetrated the violation. If it allows the constitutional appeal of a natural person, the court shall annul the contested decision of the public authority, or, if a constitutionally guaranteed fundamental right or freedom has been violated as a result of an action by a public authority other than a decision, the court shall order the authority to discontinue the violation and order it, to the extent possible, to restore the situation to that which existed prior to the violation.

According to section 68(1)(c) and (d), a punishment becomes time-barred after the expiration of a period of ten years if it was a prison sentence exceeding five years, and after a five year period in respect of other sanctions.

Section 68(2) provides inter alia that the period of prescription begins on the date on which the judgment becomes enforceable. This period does not include any time when the sentenced person was abroad or was serving another prison sentence.

Code of Criminal Procedure (Act no. 141/1961, as amended)

Section 202(2) allows a trial to be held in the absence of the accused if the court considers that the case can be decided and the purpose of the criminal proceedings achieved in the accused’s absence, provided that the formal indictment was duly served, the accused was properly summoned to attend the trial and was heard as to the facts constituting the subject of the indictment by a competent authority, was officially informed of the charges (section 160) and of the possibility to study the criminal file and make any suggestions regarding the completion of the investigation (section 166(1)).

According to section 248(1), an appeal shall be lodged with an appellate court within eight days of the accused receiving the judgment against which appeal is made.

According to section 15, all prisoners have the same rights in the same circumstances within the scope of this Act.

Section 16(5) provides that a prisoner has the right to medical care in accordance with a special law on the subject, subject to the limitations associated with the aim of the punishment.

Section 26(1) provides that a prisoner has a right to file complaints and requests to the competent authorities in order to enforce those rights and interests protected by law. Such complaints and requests must be made without delay.

According to section 79, the medical expenses of an uninsured prisoner are to be met by the prison service.

According to section 3(1), a prisoner serves his/her prison sentence on the basis of a legitimate and enforceable court decision and pursuant to an order for the enforcement of that sentence.

Section 34(1) provides that a prisoner has a right to submit complaints and requests to national authorities or such international authorities and organisations which are considered, on the European and world level, to be part of the process of gathering and examining information concerning violations of human rights.

Section 18(2) provides that everyone has the right to legal representation. Those who cannot find legal representation may ask the Bar Association to appoint an attorney.

According to section 12, the Czech Bar Association may decide that the remuneration of the lawyer’s fees shall be reduced or waived if it assigns a lawyer to a person who could not find legal services and his/her social and financial situation justifies such a decision.


The applicant is a Dutch national, born in 1965 and currently serving a prison sentence in the Netherlands.

He is represented before the Court by Ms E. Prakken, a lawyer practising in Amsterdam.

On 24 December 1993 the applicant was arrested on suspicion of having raped three prostitutes (“Ms A”, “Ms B” and “Ms C”). In a statement made to police after this arrest, a fourth prostitute (“Ms D”) reported that she had also been raped. The applicant’s lawyer was notified by the police and, without having had the opportunity to discuss the matter with the applicant, attended Ms D’s making of this statement, at which occasion the lawyer was able to question Ms D. Ms B, Ms C and Ms D subsequently recognised the applicant as the man who had raped them from a series of photographs; in the case of Ms B and Ms D this identification took place in the presence of the applicant’s lawyer.

A DNA-examination was carried out on sperm found in a swab taken from Ms B. According to the results of the examination it could not be excluded that the sperm was the applicant’s - the lowest possible degree of probability to be attached to such results.

The applicant was convicted of attempted rape of Ms A and of rape of Ms B, Ms C and Ms D by the Regional Court (Arrondissementsrechtbank) of Amsterdam on 29 June 1994. He was sentenced to six years’ imprisonment.

The applicant lodged an appeal with the Court of Appeal (Gerechtshof) of Amsterdam. He requested that Ms B, Ms C and Ms D be heard as witnesses by the Court of Appeal and the court granted this request. However, at the hearing on 21 December 1994 none of these witnesses appeared. It transpired that, although properly summoned, Ms B and Ms D did not have a known place of residence or abode (zonder bekende woon- of verblijfplaats). An address was known for Ms C but the summons had not been sent there. The Court of Appeal adjourned the proceedings in order for Ms B, Ms C and Ms D to be summoned again.

At the hearing on 1 March 1995 the witnesses again failed to appear, although all three had been properly summoned. The proceedings were once more adjourned and the witnesses summoned again. This time, the Court of Appeal also issued an order to have Ms C brought before it.

At the hearing on 28 April 1995 none of the witnesses appeared. A police officer told the Court of Appeal that none of the three witnesses had been seen at the local community centre for prostitutes (“huiskamerproject”) since 1 March 1995. Ms C had not been seen near the Central Station since December 1994. The police had let other prostitutes in that area know that they were looking for Ms C. An address was known for her but when police went there on the morning of the hearing she was not there. The officer had furthermore been told that Ms B had gone to Germany where she was said to be staying at a drug rehabilitation centre but her address in Germany was not known. Ms B was said not to want to have anything to do with the case anymore. Ms D, finally, could not be found and her address was not known.

Hereupon the Court of Appeal decided to dispense with a further summoning of Ms B, Ms C and Ms D as in the circumstances it considered it unlikely that they would appear before it within an acceptable time.

Before the Court of Appeal the applicant acknowledged that he had had intercourse with Ms A, saying that she had screamed and that he had not paid her, but he denied having raped her. He further denied the charges against him in relation to Ms B, Ms C and Ms D, submitting that he had been elsewhere when the alleged offences had supposedly been committed. Counsel for the applicant argued that in violation of Article 6 §§ 1 and 3 (d) of the Convention the defence had not had sufficient opportunity to test the statements of Ms B, Ms C and Ms D. Counsel further complained of the manner in which the collection of photographs from which Ms B, Ms C and Ms D had recognised the applicant had been compiled. Regardless of the fact that the witnesses had described the perpetrator as having long or shoulder-length hair, only two photographs in the collection shown to them had featured a person with such a hair style. Finally, counsel requested that the proceedings be adjourned so that a second DNA-examination could be carried out.

By judgment of 12 May 1995 the Court of Appeal convicted the applicant of attempted rape of Ms A and of rape of Ms B, Ms C and Ms D, and sentenced him to six years’ imprisonment. The Court of Appeal found that the use in evidence of the statements made to the police by Ms B, Ms C and Ms D without the defence having been able to examine these witnesses was not contrary to Article 6 of the Convention. In this respect it took into account that considerable effort had been made to procure the appearance of the witnesses before the Court of Appeal, that a further summoning of those witnesses appeared to serve no useful purpose, that the statements made by the witnesses were supported by other evidence, and that, as regards Ms D, the applicant’s lawyer had been present both when she had been questioned and when she had identified the applicant from a photograph.

In respect of the series of photographs shown to Ms B, Ms C and Ms D, the Court of Appeal referred to the testimony given by an expert witness according to whom a computerised system had been used to select photographs of persons of a similar appearance. The Court of Appeal also examined the photographs itself. It found that the fact that only two of the nine photographs featured men with long hair could not detract from its opinion that the collection had been compiled with the requisite care, since a hair style was only of relative importance in this respect. The Court of Appeal further noted that each witness had, separately and with certainty, recognised the applicant.

The Court of Appeal further noted that the applicant had not disputed the findings of the DNA-examination, but that he had rather expressed the hope that a second such examination might exonerate him completely. However, as the Court of Appeal did not use the findings of this examination in evidence against him, it considered that to refuse a second examination would not be prejudicial to the applicant’s interests.

The Court of Appeal based its conviction of the applicant of the rape of Ms B, Ms C and Ms D on the following means of evidence, in respect of the particular charge to which each of them related only:

- the applicant’s statement before the Court of Appeal that he wore tattoos, that he used to drive a blue-grey Buick which was registered in the name of a Mr H, and that he had subsequently obtained a Chevrolet van;

- Ms B’s statement to the police in which she related, inter alia, that the perpetrator had been driving a big, metallic-blue coloured American car, and in which she described him as having long blond hair, tattoos on both arms and wearing a number of chains;

- Ms B’s recognition of the applicant as her assailant from nine photographs shown to her, at which occasion she stated, “That is Peter the rapist. He told me himself that he was called Peter”;

- a procès verbal drawn up by a police officer to the effect that the applicant’s girlfriend had told this police officer that the applicant was generally known as ‘Peter’;

- Ms C’s statement to the police in which she related, inter alia, that the perpetrator had been driving a big, silver-blue coloured American-style car and that he had pulled a chain around her neck. She further stated that the man had long blond hair worn in a pony tail and a tattoo on his upper arm;

- a procès verbal drawn up by a police officer to the effect that the registration number of the car indicated by Ms C as the car driven by her assailant had proved incorrect;

- a procès verbal drawn up by a police officer to the effect that Mr H used to have a Buick registered in his name with a registration number that differed one digit from the number indicated by Ms C;

- Ms C’s recognition of the applicant as her assailant from a number of photographs shown to her;

- Ms C’s confirmation that the chain featured on a photograph shown to her was of the kind that she had mentioned in her statement;

- a procès verbal drawn up by two police officers to the effect that a silver-coloured chain had been found in the Chevrolet van which they had investigated in relation to the suspicion that a number of rapes had taken place inside the vehicle;

- Ms D’s statement to the police in which she related, inter alia, that the perpetrator had been driving a large silver-grey car and that he had long hair;

- Ms D’s recognition of the applicant as her assailant from nine photographs shown to her;

- a procès verbal drawn up by a police officer to the effect that the owner of a breaker’s yard had recognised the applicant from a photograph shown to him as the man whom he had given a purple-blue Chevrolet in exchange for a metallic-grey Buick.

The applicant filed an appeal in cassation with the Supreme Court (Hoge Raad), raising the same arguments as he had before the Court of Appeal.

In a judgment of 7 May 1996, the Supreme Court found that Article 6 of the Convention did not prevent the use in evidence of Ms C’s statement to the police despite the fact that counsel had not been able to question her as a witness. In this respect the Supreme Court did not find unreasonable the conclusion that further attempts to make Ms C appear before the Court of Appeal would serve no useful purpose. The Supreme Court noted, moreover, that counsel had taken no initiative to examine the police officers who had taken Ms C’s statement. It also considered that Ms C’s statement was corroborated by other means of evidence used in respect of this charge, in particular concerning the physical appearance of the applicant and the car he used.

As regards the use in evidence of Ms D’s statement, the Supreme Court observed that counsel had attended Ms D’s interview with the police and that the applicant had thus had the opportunity to have this witness questioned on his behalf.

The Supreme Court found no issue with the manner in which the Court of Appeal had rejected the complaint concerning the compilation of the series of photographs from which the applicant had been recognised.

The Supreme Court quashed the judgment of the Court of Appeal in so far as it concerned the charge of rape of Ms B and the determination of the sentence. The Supreme Court held that a second DNA-examination could not be refused for the sole reason that the examination already carried out had been complete and that the results were not used in evidence. The Supreme Court referred this part of the case to the Court of Appeal of The Hague, which court was also to impose a sentence relating to the other offences of which the applicant had been found guilty.

On 24 December 1996 the Court of Appeal of The Hague convicted the applicant of the rape of Ms B. It sentenced the applicant to six years’ imprisonment with deduction of the time spent in pre-trial detention. In these proceedings the applicant again complained of his not having been able to question Ms B. The applicant filed an appeal in cassation against the judgment of the Court of Appeal, which proceedings are currently still pending before the Supreme Court.


The applicant, Mr Dmitriy Ivanov, is an Azerbaijani national who was born in 1973 and lives in Kazi-Magomed. He was represented before the Court by Mr I. Aliyev, a lawyer practising in Azerbaijan. The Azerbaijani Government (“the Government”) were represented by their Agent, Mr C. Asgarov.

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

In December 1999 the applicant got married. He and his wife lived together until March 2000.

After the applicant had moved out of his wife’s house, he had an intention to commence divorce proceedings. However, approximately at this time, he found out that his wife was pregnant. Believing that he was not the father of the yet unborn child, in August 2000 he requested the AliBayramli Register of Civil Status Acts not to list him as the biological father in the birth certificate upon the child’s birth.

In October 2000 the applicant’s wife gave birth to a daughter. Despite the applicant’s earlier request, based on a statutory presumption of paternity, the Register of Civil Status Acts issued a birth certificate mentioning the applicant as the child’s father. As the applicant and his wife were separated and no longer lived together as a family, on 27 November 2000 the AliBayramli District Court ordered the applicant to pay child support to his wife.

The applicant then instituted civil proceedings, disputing his paternity and asking the court to strike out his name as the child’s father from the relevant civil status documents. He claimed that, on the night after his wedding, he discovered that his wife was not a virgin as he expected. He was shocked by this and refused to continue the sexual intercourse with her. He further maintained that thereafter he had never had any sexual intercourse with his wife and that the child had been conceived in an adulterous relation with another person.

After a preliminary hearing, on 22 February 2001 the Ali-Bayramli District Court ordered a biological expert examination to determine the paternity. On 29 November 2001, an expert of the Ministry of Health issued an opinion on the applicant’s paternity. The expert performed an ABO blood group test by comparing the applicant’s, the child’s and the mother’s blood types and, based on its results, concluded that the applicant “could be the child’s father”. The expert noted that a DNA test would yield a more precise conclusion, but the expert did not possess adequate medical inventory to perform such a test.

Relying on the results of the ABO blood group test, the fact that the applicant and his wife lived together at the time of the child’s conception, as well as the witness testimony concerning the relations between the applicant and his wife, on 10 January 2002 the Ali-Bayramli District Court dismissed the applicant’s claim.

The applicant filed an appeal, arguing that the District Court’s judgment was arbitrary, because the expert opinion used by the court did not provide a definite conclusion and because the results of the ABO test could not be considered as a reliable source for identifying the child’s biological father. He further argued that only the DNA test could provide a conclusive answer to the question of paternity.

On 13 May 2002 the Court of Appeal upheld the first instance court’s judgment, holding that the applicant failed to substantiate his arguments or present any new evidence proving that he was not the child’s father. In its judgment, the court was silent about the applicant’s request for a DNA test. Upon the applicant’s appeal in cassation, on 29 January 2003 the Supreme Court upheld the lower courts’ judgments dismissing the applicant’s claim.

In May 2003 the applicant filed an additional cassation complaint with the President of the Supreme Court, requesting that the proceedings be reopened. On 6 June 2003 the President rejected this request.

However, in April 2005 the proceedings were reopened and the case was referred to the Plenum of the Supreme Court based on an application by the President of the Supreme Court. On 15 April 2005 the Plenum found that the Court of Appeal breached the procedural requirements by ignoring the applicant’s request to order a DNA test. It further noted that such a test would constitute the “principal type of evidence” in this case. The Plenum quashed the decision of the Supreme Court of 29 January 2003 and the related judgment of the Court of Appeal of 13 May 2002 and remitted the case to the Court of Appeal.

On 11 August 2005 the Court of Appeal instructed the Forensic Medicine and Pathologic Anatomy Department of the Ministry of Health to conduct a DNA test of the applicant, his former wife and her child. Despite having been notified about the time and place of the DNA testing, the applicant failed to appear for the test without any good reason. According to the Government, the applicant received several such notifications.

Furthermore, although they had been informed about the time and place of the appeal hearing, neither the applicant nor his former wife appeared for the hearing. In such circumstances, on 8 December 2005 the Court of Appeal noted that it had been impossible to obtain DNA evidence due to the applicant’s failure to cooperate. It therefore found that the parties (and in particular, the applicant) were not interested in obtaining new evidence that would enable the court to reach a different conclusion. For these reasons, the Court of Appeal again upheld the Ali-Bayramli District Court’s original judgment of 10 January 2002.

No cassation appeal was filed against the Court of Appeal’s judgment of 8 December 2005 within the statutory three-month period for filing cassation appeals.

“[T]he Supreme Court shall be the highest judicial authority with regard to civil ..., criminal, administrative and other disputes falling within the jurisdiction of the general and specialised courts.

The Supreme Court [is] a court of cassation instance...”

“The Plenum of the Supreme Court shall be composed of the President, Vice Presidents and judges of the Supreme Court, the President of the Economic Court, the President of the Court of Appeal and the President of the Supreme Court of the Nakhchivan Autonomous Republic. ...

The Plenum of the Supreme Court ... shall, in the manner established by law, review cases under the procedure of additional cassation ..., on submission of the President of the Supreme Court, or pursuant to a protest by the Chief Prosecutor or appeal by the defendant ...”

“The President of the Supreme Court ... shall, in cases and under the procedure provided by law, submit cassation-instance decisions for the review of the Plenum of the Supreme Court...”

“419.4. The decision [of the cassation-instance court] shall enter into force from the moment of its delivery.”

“Decisions of the Supreme Court of the Republic of Azerbaijan ... may be reviewed by the Plenum of the Supreme Court of the Republic of Azerbaijan under the procedure of additional cassation upon a submission, appeal or protest.”

“A submission concerning a decision of the Supreme Court of the Republic of Azerbaijan ... may be made by the President of the Supreme Court on the basis of an application by persons non-parties to the case whose interests are affected by the judicial acts. An appeal may be filed by a party to the case represented by an advocate. [A protest may be filed by the Chief Prosecutor in certain specified circumstances.]”

“424.1. The Plenum considers cases exclusively on the points of law.”

Article 424.2 lists the grounds which merit the review of the Supreme Court’s cassation-instance decision by the Plenum of the Supreme Court. These grounds are present if, inter alia, the Supreme Court’s decision was drawn up in violation of the formal requirements concerning the contents of a judicial decision, or was based on a legal norm declared as unconstitutional by the Constitutional Court, or if the Supreme Court’s ruling infringed the rights and obligations of persons who were not a party to the case.

“426.1. If appropriate grounds exist, the President [of the Supreme Court] shall refer the submission, appeal or protest, together with the case file, to the Plenum of the Supreme Court.

426.2. The submission, appeal or protest shall be filed within two months after the date of delivery of the [relevant] decision of the Supreme Court. ...”

“429.0. Upon review of a case under the procedure of additional cassation, the Plenum of the Supreme Court has the competence to: ...

429.0.1. uphold the decision of the cassation-instance court and dismiss the submission, appeal or protest;

429.0.2. make amendments to the decision of the cassation-instance court;

429.0.3. quash, in full or in part, the decision of the cassation-instance court, as well as the related decision of the appellate court, and remit the case for re-examination by the appellate court; ...”


Violation of Art. 5-3;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings

On 28 July 1996 police officers from the anti-terrorist branch of the İzmir Security Directorate arrested the applicants on suspicion of membership of an illegal organisation, the PRK-Rızgari.

On 5 August 1996 the İzmir State Security Court ordered the applicants' detention on remand.

On 28 August 1996 the Chief Public Prosecutor filed an indictment with the İzmir State Security Court charging the applicants with membership of the PRK-Rızgari and undertaking actions against the indivisible integrity of the state. The charges were brought under Articles 125 and 168 of the Criminal Code.

In a judgment dated 14 August 1997 the İzmir State Security Court acquitted Ms Melahat Filiz of the charges, holding that there was insufficient evidence to convict her. The court found Mr Nadir Kalkan guilty of the offences under Articles 125 and 168 and sentenced him to capital punishment.

On 19 September 1997 Mr Kalkan lodged an appeal with the Court of Cassation. The applicant did not submit any information concerning the outcome of the criminal proceedings against him.

Article 19 of the Constitution provides:

“Everyone has the right to liberty and security of person.

No one shall be deprived of his liberty save in the following cases and in accordance with the formalities and conditions prescribed by law:

The arrested or detained person must be brought before a judge within forty-eight hours at the latest or, in the case of offences committed by more than one person, within fifteen days ... These time-limits may be extended during a state of emergency...

A person deprived of his liberty for whatever reason shall have the right to take proceedings before a judicial authority which shall give a speedy ruling on his case and order his immediate release if it finds that the deprivation of liberty was unlawful.

Compensation must be paid by the State for damage sustained by persons who have been victims of treatment contrary to the above provisions, as the law shall provide.”

Article 168 of the Criminal Code provides:

“Any person who, with the intention of committing the offences defined in Articles ..., forms an armed gang or organisation or takes leadership ... or command of such a gang or organisation or assumes some special responsibility within it shall be sentenced to not less than fifteen years' imprisonment.

The other members of the gang or organisation shall be sentenced to not less than five and not more than fifteen years' imprisonment.”

Article 125 of the Criminal Code provides:

“It shall be an offence, punishable by the death penalty, to commit any act aimed at subjecting the State or any part of the State to domination by a foreign State, diminishing the State's independence or removing part of the national territory from the State's control.”

Under Articles 3 and 4 of the Prevention of Terrorism Act (Law no. 3713 of 12 April 1991), the offences defined in Articles 125 and 168 of the Criminal Code are classified as “terrorist” acts. Pursuant to Article 5 of Law no. 3713, penalties laid down in the Criminal Code as punishment for the offences defined in Articles 3 and 4 of the Act are increased by one half.

Under Article 9 of Law no. 3842 on procedure in the state security courts, only these courts can try cases involving the offences defined in Articles 125 and 168 of the Criminal Code.

At the material time, Article 30 of Law no. 3842 of 18 November 1992, amending the legislation on criminal procedure, provided that, with regard to offences within the jurisdiction of state security courts, any arrested person had to be brought before a judge within 48 hours at the latest, or, in the case of offences committed by more than one person, within 15 days.


The first applicant is Mr Marko Kustila, a Finnish national, who was born in 1962 and was serving a prison sentence at the time of the application. The second applicant is Mr Jukka Oksio, a Finnish national who was born in 1967 and was serving a prison sentence at the time of the application. They are represented before the Court by Mr Jaakko Tuutti, a lawyer practising in Tampere, Finland.

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

The first applicant had been detained pending a criminal trial concerning – amongst others – two serious drug offences. On 5 July 2000, at the end of the hearing, the District Court (käräjäoikeus, tingsrätten) of Jyväskylä informed the parties that it had decided to reserve the judgment until 12 July 2000. The public prosecutor demanded a sentence of seven years imprisonment and that the first applicant should remain in detention pending the delivery of the judgment. The District Court ordered that the first applicant be detained pending the delivery of the judgment, basing the detention on Sections 26 and 26a of Chapter 1 of the Act on Coercive Means of Criminal Investigation (pakkokeinolaki, tvångsmedelslag; 450/1987). It held, inter alia, as follows:

“Because the District Court has in its decision after the end of the principal hearing notified the date of the reserved judgment, the grounds for K.’s [the first applicant’s] detention are based on the principles supporting section 26 of Chapter 1 of the Act on Coercive Means of Criminal Investigation.

K., who has been detained throughout from 21 May 2000, has been charged with offences for which, if proven guilty as charged, he will clearly, according to normal case law, be sentenced to imprisonment for longer than two years.

Without prejudice to the length of the final imprisonment sentence and taking into consideration that the reserved judgment will be given in less than one week’s time, the arguments presented in favour of K. do not disclose that his detention is excessive.”

On the same day (5 July 2000) the first applicant applied to the Court of Appeal (hovioikeus, hovrätten) of Vaasa, claiming that his detention was unlawful and demanding the District Court’s decision to be quashed as well as his immediate release. He claimed that the District Court could not have based its decision on Section 26 of Chapter 1 of the Act on Coercive Means of Criminal Investigation, because he had not yet been sentenced as required by that provision. He also maintained that Finnish legislation did not contain any basis for detention of a defendant in a case where the hearing had been closed and the judgment reserved and invoked Article 5 § 1 of the Convention.

On 7 July 2000 the Court of Appeal of Vaasa quashed the District Court’s decision to detain the first applicant and ordered his immediate release. The Court of Appeal reasoned its decision, inter alia, as follows:

“Because K. had not been sentenced at the end of the principal hearing on 5 July 2000, he could not have been ordered to remain detained pursuant to Section 26 of Chapter 1 of the Act on Coercive Means of Criminal Investigation.”

On 12 July 2000 the District Court of Jyväskylä sentenced the first applicant to five years’ imprisonment. It also ordered the arrest of the first applicant, who had gone missing after his release on 7 July 2000.

On 11 July 2000 the first applicant meanwhile applied to the District Court of Tampere, claiming compensation under the Act on Compensation by the State for the Deprivation of the Liberty of Detained or Convicted Innocent Persons. The District Court rejected the applicant’s claims on 10 November 2000, referring to section 2 of that Act. It held, inter alia, as follows:

“It is undisputed in the case that K. was detained during the time mentioned in his application for summons. It is also undisputed that the Court of Appeal of Vaasa released K. because it was not possible to keep K. detained on the grounds that the public prosecutor put forward and on which the District Court had made the decision, i.e. pursuant to Section 26 of Chapter 1 of the Act on Coercive Means of Criminal Investigation.

Therefore, the detention was not based on the grounds on which the public prosecutor and the District Court justified the detention.

Taking into account the seriousness of the offences that underlie the detention of K., his guilt as stated in the judgment and the length of the imposed penalty, it would be excessive to oblige the State to pay K. compensation for the deprivation of his liberty. Compensation would be excessive also because he was deprived of his liberty for only two days and because this time has been subtracted from the sentenced imprisonment according to Section 11 of Chapter 3 of the Criminal Code. Because of K.’s guilt the deprivation period cannot be deemed to cause him such mental suffering as would be the case if an innocent person had been detained.”

The Court of Appeal of Turku upheld the District Court’s judgment on 24 April 2001. The Court of Appeal reasoned its judgment, inter alia, as follows:

“As the District Court has maintained, there were no legal grounds for K.’s detention during 5 July – 7 July 2000. However, on 12 July 2000 K. was sentenced to five years’ imprisonment for the crimes that initially led to his detention, and ordered to be taken into custody. K. has subsequently been avoiding the implementation of the sentence and a warrant for his arrest has been issued. Therefore it would be excessive to oblige the State to pay him compensation for his short term detention. Further, because it cannot be maintained that K.’s liberty has been restricted in an arbitrary fashion or without justification, he is not entitled to compensation on the basis of the Convention for the Protection of Human Rights and Fundamental Freedoms either.”

In a letter dated 11 November 2000 the first applicant asked the police to investigate whether the judge and laymen of the District Court of Jyväskylä had committed a crime when they ordered his detention.

On 14 November 2000 the police sent a report to the Chancellor of Justice and informed him that a criminal investigation would not commence before the Chancellor of Justice had examined the matter.

On 18 April 2001 the Deputy Chancellor of Justice noted in his decision that there was no directly applicable statute in the law concerning detention of an accused by a court when reserving a judgment to a later date. He concluded however that both the District Court and the Court of Appeal had erred as the defendant could, and should have, been detained, under Section 23 of Chapter 1 of the Act on Coercive Means of Criminal Investigation. According to the Deputy Chancellor of Justice, that interpretation of law had been accepted by the Court of Appeal in similar cases. He did not find any grounds for prosecution in the case.

The second applicant was serving a term of imprisonment in an open prison when on 23 September 1997 he was taken in police custody to a police station as suspected of another crime. Some time later he was transferred to the Hämeenlinna Central Prison, from which he was transferred to a prison in Köyliö on 5 November 1997. On 31 December 1998 a public prosecutor decided not to press further charges against the second applicant.

On 31 May 1999 the second applicant filed a suit against the State under the Act on Compensation by the State for the Deprivation of the Liberty of Detained or Convicted Innocent Persons. He demanded, inter alia, compensation for non-pecuniary damages caused by his detention from 23 September 1997 to 5 November 1997. On 18 October 1999 the District Court rejected the second applicant’s claims. It reasoned its decision, inter alia, as follows:

“Even though [the second applicant’s] liberty and possibilities to act were de facto restricted to a greater degree due to his transferral to the police jail compared to the conditions in an open prison establishment, [the second applicant] was also nevertheless a prisoner in the open prison.

As [the second applicant] was already imprisoned and as transferral to a different kind of prison does not require compensation pursuant to the Act on Compensation by the State for the Deprivation of the Liberty of Detained or Convicted Innocent Persons, and as [the second applicant] cannot be considered as equivalent to a detained or convicted innocent person or to a person subject to an injunction order, the District Court holds that the State is not obliged to pay [the second applicant] compensation for any possible non-pecuniary damage caused by the transferral to a police jail.”

The second applicant complained to the Court of Appeal which, on 5 October 2000, upheld the District Court’s judgment. The Supreme Court refused the second applicant leave to appeal on 30 July 2001.

Section 23 of Chapter 1 of the Act on Coercive Means of Criminal Investigation (693/1997), as in force at the time of the events, provided:

“When the court cancels or defers the principal hearing in a case where the defendant has been detained, the court has to examine and assess whether there are reasons to keep the defendant detained.”

Section 23 of Chapter 1 of the Act on Coercive Means of Criminal Investigation was amended on 27 June 2003 (646/2003). The new section entered into force on 1 January 2004 and it provides:

“When the court cancels or defers the principal hearing or orders a new principal hearing in a case where the defendant has been detained, the court has to examine and assess whether there are reasons to keep the defendant detained. However, the question of detention does not have to be re-examined or reassessed during the time when the principal hearing has been deferred due to a mental examination of one of the defendants in the case. The court must also rule on the question of detaining the defendant, if the court does not deliver its judgment directly after the principal hearing.”

Section 26 of Chapter 1 of the Act on Coercive Means of Criminal Investigation (213/1995) states:

“The court may detain a person convicted and sentenced to imprisonment, or order the continuation such a person’s detention, if:

(1) the defendant has been sentenced to at least two years imprisonment.”

Section 26a of Chapter 1 of the Act on Coercive Means of Criminal Investigation (213/1995) provides:

“Nobody may be detained or ordered to continue to be detained if the detention would be excessive due to the nature of the case, the suspect’s or sentenced person’s age or due to other personal circumstances of the person in question.”

Section 1 of the Act on Compensation by the State for the Deprivation of the Liberty of Detained or Convicted Innocent Persons (1974/422) provides:

“A person who has been arrested or detained as a suspect for a crime has a right to compensation from the State, if:

(1) a criminal investigation has ended without a criminal charge being brought;

(2) a criminal charge is withdrawn or dismissed;

(3) he or she has been found guilty of an offence which did not justify arrest or detention, or;

(4) there was no legal basis for the arrest or detention.

There is no right to compensation if the deprivation of liberty has not exceeded twenty-four hours.”

Section 2 of the above-mentioned Act (1974/422) states:


Violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention;Article 5-1-b - Secure fulfilment of obligation prescribed by law;Article 5-5 - Compensation);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage)

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

The applicant was born in 1947 and lives in Sofia.

In 2004 a real estate agent brought a private prosecution against the applicant for insult and defamation punishable by a fine and public reprimand. According to the complaint, in a newspaper announcement the applicant, describing herself as “the deceived citizen”, warned the public that the real estate agent would buy their real estate at very low prices and then would resell it for much larger amounts, making a very large profit for herself.

The Asenovgrad District Court postponed hearings scheduled for 20 September and 11 November 2004 because the applicant had submitted medical certificates and had expressed the wish to participate in the proceedings in person.

At hearings conducted on 10 January and 10 March 2005 the applicant was not present but was represented by counsel.

At a hearing on 27 May 2005 neither the applicant nor her lawyer appeared. The applicant had submitted a medical certificate and had requested postponement. The District Court noted that the applicant’s presence was not mandatory, but postponed the hearing as her lawyer was also absent. It imposed a fine of 500 Bulgarian levs (BGN) on the applicant’s lawyer. The latter appealed to the Plovdiv Regional Court, arguing that she had also been ill, and submitted a medical certificate. On 3 June 2005 the District Court, applying the procedure of Article 347 of the 1974 Code of Criminal Procedure, revoked its own decision, stating that the applicant’s lawyer had given valid reasons for her absence.

At a hearing on 27 June 2005 the applicant appeared, but stated that she would make submissions at the final pleading stage.

The applicant requested postponement of the hearings scheduled for 15 December 2005, 27 February, 18 May and 19 June 2006, stating that she wanted to address the court but was ill, as was documented by medical certificates she had submitted. The District Court granted her requests.

On an unspecified date in September 2006 the applicant submitted to the District Court another medical certificate prescribing her home treatment for hypertension from 15 to 20 September 2006, and requested postponement.

At a hearing on 18 September 2006, held in the applicant’s absence but in the presence of her lawyer, the District Court noted the applicant’s statement that she wanted to make submissions at the final stage of the pleadings and found that her hypertension was not an obstacle in this respect. It further noted that the applicant had submitted medical certificates on a number of occasions, thus causing delays in the proceedings. Relying on the Convention, the District Court observed that it was necessary to complete the proceedings within a reasonable time and held that the applicant should therefore be brought before it for the next hearing with the assistance of the police. It did not specify any legal ground for this order. It scheduled the next hearing for 19 October 2006 at 3 p.m. Since the applicant’s lawyer was present at the hearing, the applicant was considered duly informed of the order.

Around 10 a.m. on 18 October 2006 the applicant was detained by the police and taken to Sofia Prison, where she remained until the next morning. The applicant contends that the conditions there were humiliating and that she had to use the same toilet as male detainees.

In the morning of 19 October 2006 the applicant was escorted by train and car from Sofia to Asenovgrad (160 km), attended the hearing at 3 p.m. and made submissions, after which she was released. In a judgment of the same date the District Court acquitted her, finding that her newspaper announcement had been neither insulting nor defamatory. The plaintiff requested judicial review of the judgment but on 4 December 2006 her appeal was rejected for procedural flaws.

Pursuant to Article 269 (1) of the 2006 Code of Criminal Procedure (“the 2006 CCP”), the attendance of the accused person at the trial is mandatory where the charges concern offences punishable by more than five years’ imprisonment. In all other cases, the court may order the accused person to appear if this is necessary for establishing the truth (Article 269 (2) of the 2006 CCP).

An accused person may be taken into custody in order to secure his attendance for questioning if he has failed to appear without valid reasons, provided that his attendance is mandatory or is deemed necessary by the competent authority (Article 71(1) of the 2006 CCP). The accused may be taken into custody without prior notice if he has absconded or has no permanent address (Article 71(2) of the 2006 CCP).

Orders under Articles 269(2) and 71 of the 2006 CCP are not amenable to appeal before a higher court.

Pursuant to Article 347 of the 1974 Code of Criminal Procedure, in force until 29 April 2006, the court could revoke its own procedural order if judicial review had been requested. This provision was superseded by Article 344 of the 2006 CCP, in force since 29 April 2006, which repeats its text almost verbatim.

The 1988 State and Municipalities Responsibility for Damage Act (the “SMRDA”) provides for compensation in certain cases of deprivation of liberty ordered by a court or by investigating or prosecuting authorities, where the relevant decision or order has been set aside “for lack of lawful grounds” under domestic law. Deprivation of liberty aiming at securing the accused’s attendance at a hearing is not among those cases.

The relevant domestic law and practice concerning State liability for damage in connection with conditions of detention have been summarised in the Court’s judgment in the case of Slavcho Kostov v. Bulgaria (no. 28674/03, § 19-22, 27 November 2008).


Violation of Art. 5-4;Non-pecuniary damage - financial award;Costs and expenses partial award

The applicant, a Swiss citizen born in 1945, resides in Minusio, Switzerland.

On 20 September 1994, the applicant was arrested and remanded in custody on urgent suspicion (dringender Verdacht) of having participated together with the “Carlos” terrorist group in an attack on the radio station Radio Free Europe in Munich and in attacks on diplomatic staff in Lebanon and France. The warrant of arrest also referred to a danger of collusion and absconding.

On 22 September 1994 the investigating judge of the Canton of Bern confirmed the detention on remand of the applicant. The decision noted that the suspicion was based on files of the East German State security authorities and the Hungarian intelligence service. There was an urgent suspicion that, as a supporter of the “Carlos” group, he had participated in the various events. Additional investigations would be necessary since the applicant refused to comment on his contacts with the group. According to the decision, detention was further required in order to avoid collusion with other members of the group. There was also a danger of absconding in view of the severity of the possible prison sentence.

The investigations were then conducted by the Federal Attorney’s Office (Bundesanwaltschaft).

On Friday, 21 October 1994, the applicant filed a request with the Federal Attorney for release from detention. He contested the urgent suspicion that he had committed the offences at issue and that there was a danger of collusion and absconding. He also requested consultation of the case-file. The request was received by the Federal Attorney on Monday, 24 October.

On Tuesday, 25 October 1994, the Federal Attorney dismissed the applicant’s request. The decision, referring to various investigations still to be undertaken as well as a danger of collusion and absconding, was served on the applicant on Thursday, 27 October.

On Monday 31 October 1994, the applicant filed an appeal (Beschwerde) against the decision of 25 October with the Indictment Chamber (Anklagekammer) of the Federal Court, invoking Article 5 §§ 1, 2 and 4 and Article 6 § 3 of the Convention and requesting release from detention. He complained that more than six weeks had lapsed without the lawfulness of his detention having been examined by a court within the meaning of Article 5 § 4 of the Convention, and that he had not been able to consult the case file. The appeal was received by the Federal Court on Tuesday 1 November 1994.

On the same day the President of the Indictment Chamber transmitted a copy of the appeal to the Federal Attorney who was requested to submit her observations by Monday 7 November 1994. The Federal Attorney was further asked to send a copy of her observations to the applicant who, in turn, was requested to submit any observations by 11 November 1994.

On 7 November 1994, the Federal Attorney’s Office filed her observations. They were served on the applicant on 8 November 1994.

The applicant filed his observations in reply on Friday 11 November 1994. These observations were received by the Federal Court on Monday 14 November.

On Monday 21 November 1994, the Indictment Chamber of the Federal Court dismissed the applicant’s request, the decision being served on the applicant on Tuesday 22 November 1994.

In respect of the applicant’s complaint that he could not consult the case-file, the Indictment Chamber found that the applicant had had knowledge of the essential documents. The decision further confirmed that there was sufficient suspicion that the applicant had committed the offences at issue and that there was also a danger of absconding and of collusion.

On 30 November 1994 the Federal Attorney’s Office decided to release the applicant from detention on remand. The decision stated, inter alia, that the original suspicions directed against the applicant had not been confirmed (erhärtet).

According to Section 52 of the Federal Act on Criminal Procedure (Bundesstrafrechtspflegegesetz), a person detained on remand may at any time file a request for release from detention. If the investigating judge or the Federal Attorney refuse the request, an appeal may be filed with the Indictment Chamber of the Federal Court. According to Sections 105 bis and 217 of the Act, the time-limit for filing the appeal is three days.