Violation of Art. 6-1;Pecuniary damage - claim dismissed;Costs and expenses partial award

On 17 October 1994 the applicant, who was born in 1937 and had been on early retirement since 1989, applied for disability benefits under the Social Insurance Act (Lagen om allmän försäkring, 1962:381; hereinafter “the 1962 Act”). He claimed that he had extra costs following an operation on his intestines in September 1994 due to, inter alia, an increased consumption of fluids.

By a decision of 28 December 1994 the Social Insurance Office (försäkringskassan; hereinafter “the Office”) of the County of Stockholm rejected the application, finding that the applicant’s costs were not such as to make him eligible for benefits.

The applicant later made a new application, which was rejected by the Office on 8 February 1995.

The applicant appealed to the County Administrative Court (länsrätten) of the County of Stockholm. On 16 May 1995 the court rejected his appeal. The court did not hold an oral hearing nor did the applicant request one.

Following the applicant’s further appeal, the Administrative Court of Appeal (kammarrätten) in Stockholm, by a decision of 17 November 1995, refused him leave to appeal.

On 5 December 1995 the applicant made yet another application for disability benefits. On 3 April 1996 the application was rejected by the Office, which again found that the applicant’s costs did not attain the required level. The Office had at its disposal three medical certificates issued by different physicians. They expressed differing opinions on the applicant’s need of extra consumption of fluids, two of them considering that there was no such need and the third one stating that the applicant was recommended, from a surgical point of view, an increased consumption of, for instance, mineral water.

The applicant appealed to the County Administrative Court. In a decision of 23 July 1996 the court noted that the issue in the case was whether the applicant’s extra costs attained the level required for a disability allowance under the 1962 Act. Finding that the medical evidence in the case was inconclusive and did not provide the Court with a sufficient basis for a decision, the court ordered the National Social Insurance Board (Riksförsäkringsverket; hereinafter “the Board”) to submit observations in the case. The Board answered by a letter of 13 August 1996, in which it contested the applicant’s claims. The applicant made observations in reply.

On 16 October 1996 the County Administrative Court gave judgment in the applicant’s favour. Having reiterated that the medical evidence was inconclusive, the court also noted that the calculations of the applicant’s extra costs made by the Office and the applicant himself were very close on either side of the level required for entitlement to a disability allowance. In these circumstances, it gave the applicant the benefit of the doubt and granted him an allowance. An oral hearing was not requested by the applicant, nor did the court hold one of its own motion.

The Board appealed against the judgment to the Administrative Court of Appeal and submitted a medical certificate from a further physician, who stated that an increased consumption of fluids was necessary due to the applicant’s handicap but that there was no particular need for mineral water. On 2 April 1997 the appellate court granted the Board leave to appeal.

By a letter of 23 April 1997 the applicant requested the appellate court to hold an oral hearing in the case. He did not state any reasons for his request. On 15 May 1997 it was rejected by the court. After having restated section 9 of the Administrative Court Procedure Act (Förvaltningsprocess-lagen, 1971:291; hereinafter “the 1971 Act”; see further paragraph 25 below), the court gave the following reasons:

“Having regard to the subject-matter at issue and the information that has come to hand in the case, [the court] finds that an oral hearing is unnecessary and rejects the request to that effect. [The applicant] is invited to state the further circumstances he wishes to invoke and submit his final written observations in the case within two weeks after having been notified of this decision.

The case can be determined notwithstanding a failure to submit such written observations.”

The applicant reiterated his request for an oral hearing on 22 May 1997. He now stated that he wished to be heard in person about his working conditions and the costs of his consumption of fluids. Further, representatives of the Board should be heard about the applicable levels for entitlement to and calculation of disability allowances.

On 24 June 1997 the Administrative Court of Appeal rejected the applicant’s renewed request for an oral hearing and gave judgment in favour of the Board. Thus, it quashed the County Administrative Court’s judgment and confirmed the Office’s decision of 3 April 1996. Without giving any further reasons, it considered that the information in the case did not show that the applicant met the conditions for a disability allowance.

The applicant appealed to the Supreme Administrative Court (Regeringsrätten). He requested that the case be referred back to the Administrative Court of Appeal for re-examination or, alternatively, that the Supreme Administrative Court confirm the County Administrative Court’s judgment. He complained about the lack of an oral hearing in the Administrative Court of Appeal and also requested the Supreme Administrative Court to hold an oral hearing.

By a letter of 28 July 1997 the Supreme Administrative Court informed the applicant that it did not normally hold oral hearings and gave him the opportunity to complete his appeal in writing.

On 26 August 1997 the Supreme Administrative Court refused the applicant leave to appeal.

According to chapter 9, section 2 of the 1962 Act, a person who is ill or handicapped is entitled to disability benefits, provided that, before reaching the age of 65, he or she has become functionally impaired for a considerable time and to such a degree that he or she needs time-consuming assistance from another person in everyday life or continuing assistance in order to be gainfully employed or otherwise has considerable extra expenses. The total need of support and assistance determines the eligibility for disability benefits and the amount of compensation. It is thus necessary to look at the whole situation of the person in question and to add together the need for different types of assistance and the extra expenses. According to the Board’s guidelines, the total cost of all extra needs due to the disability should come to at least 28.5% of a basic amount geared to the price index (basbelopp) in order to make the individual eligible for an allowance. In 1995, when the applicant made his second application to the Office, this corresponded to 10,175 Swedish kronor (SEK).

A decision by the Social Insurance Office under the 1962 Act may be appealed against to the County Administrative Court and from there on to the Administrative Court of Appeal and the Supreme Administrative Court.

The procedure in the administrative courts is governed by the provisions of the 1971 Act. Section 9 provides:

“The proceedings are in writing.

An oral hearing may be held in regard to a certain issue, when there is reason to assume that that would be to the benefit of the proceedings or the speedy determination of the case.

In the Administrative Court of Appeal and the County Administrative Court an oral hearing shall be held if requested by an individual party to the proceedings, unless it is unnecessary or there are particular reasons against holding a hearing.”

The possibility for an individual party to obtain an oral hearing on request under those circumstances is not available in the proceedings before the Supreme Administrative Court.

According to the preparatory documents to the 1971 Act, an oral hearing can be a valuable complement to the written proceedings and may benefit the examination of a case in two situations in particular: firstly, when it is necessary to hear a witness, an expert or a party or when it is difficult for a party to present the case in writing and, secondly, when different positions in the case need to be sorted out in order to eliminate unnecessary or pointless issues of dispute. In the latter case, the oral hearing takes on a preparatory character. It was stressed, however, that an oral hearing should not to be seen as an alternative to the written procedure but as a complement to it (see Government Bill 1971:30, p. 535).

It was further stated, in respect of the third paragraph of section 9, that a party’s request for an oral hearing should be given great consideration. However, such a request should not have a decisive influence on the matter, as the question whether an oral hearing is necessary is to be determined primarily on the basis of the available information in the case. Still, other circumstances may be of relevance, for instance the importance for the party of the matter at stake or the possibility that an oral hearing could enhance the party’s understanding of a future decision in the case. Nevertheless, if the case is of a trivial character or the costs of an oral hearing would be disproportionate to the values at stake in the case, there could be reason not to hold an oral hearing (p. 537).


Angelika Nußberger;Dean Spielmann;Elisabet Fura;Ganna Yudkivska;Isabelle Berro-Lefèvre;Karel Jungwiert

The applicant, Zeina Hajj Hussein, was born in 1965 and claims to be Lebanese. However, the Swedish authorities found that she had not made it probable that she originates from Lebanon and therefore held that her case should be tried not only against Lebanon but also against the neighbouring countries Turkey and Syria.

In 2006, the applicant had a relationship with a man who turned out to be a drug addict and dealer. After her parents banned her from seeing him, he started to harass her and threatened to kill her. Her brother also threatened to kill her due to that relationship.

On 7 May 2009 the Migration Board rejected her asylum application as it found the alleged incident to be an act of criminality which was for the domestic authorities to handle. The applicant had neither turned to those authorities for protection nor made it probable that they could not provide protection against the threats in question. The Board therefore held that, should the applicant be victim of further crimes upon return, she could seek protection from the authorities in Lebanon, Syria or Turkey. On 22 November 2010 the Migration Court upheld the decision of the Board. As stated by herself in the present application, the applicant did not appeal against the Migration Court’s judgment to the Migration Court of Appeal. With the rejection of the applicant’s asylum application she has no right to remain in Sweden and can be removed without further proceedings.

The provisions applicable in the present case are laid down in the Aliens Act (Utlänningslagen, 2005:716). The Act defines, inter alia, the conditions under which an alien can be deported or expelled from Sweden as well as the procedures relating to the enforcement of such decisions.

The Act stipulates that an alien who is considered to be a refugee or otherwise in need of protection is, with certain exceptions, entitled to a residence permit in Sweden (Chapter 5, section 1). The term “refugee” refers to an alien who is outside the country of his or her nationality owing to a well-founded fear of being persecuted on grounds of race, nationality, religious or political beliefs, or on grounds of gender, sexual orientation or other membership of a particular social group and who is unable or, owing to such fear, is unwilling to avail himself or herself of the protection of that country (Chapter 4, section 1). This applies irrespective of whether the persecution is at the hands of the authorities of the country or if those authorities cannot be expected to offer protection against persecution by private individuals. By “an alien otherwise in need of protection” is meant, inter alia, a person who has left the country of his or her nationality because of a well-founded fear of being sentenced to death or receiving corporal punishment, or of being subjected to torture or other inhuman or degrading treatment or punishment (Chapter 4, section 2).

As regards the enforcement of a deportation or expulsion order, account has to be taken of the risk of capital punishment or torture and other inhuman or degrading treatment or punishment. According to a special provision on impediments to enforcement, an alien must not be sent to a country where there are reasonable grounds for believing that he or she would be in danger of suffering capital or corporal punishment or of being subjected to torture or other inhuman or degrading treatment or punishment (Chapter 12, section 1). In addition, an alien must not, in principle, be sent to a country where he or she risks persecution (Chapter 12, section 2).

Under certain conditions, an alien may be granted a residence permit even if a deportation or expulsion order has gained legal force. This is the case where new circumstances give reasonable grounds for believing, inter alia, that an enforcement would put the alien in danger of being subjected to capital or corporal punishment, torture or other inhuman or degrading treatment or punishment or where there are medical or other special reasons why the order should not be enforced (Chapter 12, section 18). If a residence permit cannot be granted under these rules, the Migration Board may instead decide to re-examine the matter. Such a re-examination shall be carried out where it may be assumed, on the basis of new circumstances invoked by the alien, that there are lasting impediments to enforcement of the nature referred to in Chapter 12, sections 1 and 2, and these circumstances could not have been invoked previously or the alien shows that he or she has a valid excuse for not having done so. Should the applicable conditions not be met, the Migration Board shall decide not to grant a re-examination (Chapter 12, section 19).

Matters concerning the right of aliens to enter and remain in Sweden are dealt with by three instances: the Migration Board, the Migration Court and the Migration Court of Appeal. The applicants are entitled to be represented before these bodies by publicly-appointed counsel (Chapter 14, section 3, Chapter 16, section 9, and Chapter 18, section 1). The time-limit for appeals to the final instance is three weeks from the date of the appealed judgment (Chapter 16, section 10). For a case to be considered by the Migration Court of Appeal, leave to appeal is required and will be granted if there are special reasons for hearing the appeal or if the determination of the Migration Court of Appeal may be of importance as a precedent. If leave to appeal is granted, the Migration Court of Appeal can decide the case on the merits (Chapter 16, section 12).


Violation of Article 14+P1-1 - Prohibition of discrimination (Article 1 of Protocol No. 1 - Protection of property)

David Thór Björgvinsson;Giovanni Bonello;Lech Garlicki;Ledi Bianku;Mihai Poalelungi;Nicolas Bratza

The applicant was born in 1956 and lives in Oxford.

His wife died on 12 October 1996 leaving dependent children. His claim for widows’ benefits was made in March 2001 and on 2 May 2001 it was determined that he was entitled to Widowed Parent’s Allowance as from 10 April 2001. The applicant however requested that the claim be treated as from the date of his wife’s death, or alternatively that he be allowed to claim the equivalent widow’s benefit. On 22 October he made a formal application for widow’s benefit which was rejected on 27 February 2002 on the ground that he was not entitled to widows’ benefits because he was not a woman. The applicant did not appeal further as he considered or was advised that such a remedy would be bound to fail since no such social security benefits were payable to widowers under United Kingdom law.

The relevant domestic law and practice are described in the Court’s judgment in the case of Willis v. the United Kingdom, no. 36042/97, §§ 1426, ECHR 2002-IV.


POPOV and OTHERS, VAKARELOVA, MARKOV and BANKOV v. BULGARIA

All applicants are practising medical doctors. Some of them are members of the Bulgarian Doctors’ Union („Български лекарски съюз“ – “BDU”), established in July 1998 by the Professional Organisations of Doctors and Dentists Act („Закон за съсловните организации на лекарите и стоматолозите“ – “PODDA” or “Act”), while some have refused to become such members.

The applicants in the first application (no. 48047/99), Mr Toma Dimitrov Popov, Mr Marcel Haim Levy, Mr Ivan Yordanov Chalakov and Mr Velko Vladimirov Kalaydjiev, are Bulgarian nationals who were born in 1949, 1960, 1947 and 1964 respectively and live in Sofia. They were represented before the Court by Ms Z. Kalaydjieva and Ms N. Sedefova, lawyers practising in Sofia.

The applicant in the second application (no. 48961/99), Ms Mariana Ilieva Vakarelova, is a Bulgarian national who was born in 1959 and lives in Sofia. She was represented before the Court by Ms V. Terzieva and Mr Y. Grozev, lawyers practising in Sofia.

The applicant in the third application (no. 50786/99), Mr Nikolai Markov Markov, is a Bulgarian national who was born in 1952 and lives in Sofia. He was represented before the Court by Mr E. Nikolov, a lawyer practising in Sofia.

The applicant in the fourth application (no. 50792/99), Mr Georgi Hristov Bankov, is a Bulgarian national who was born in 1967 and lives in Veliko Tarnovo. He was represented before the Court by Ms V. Terzieva and Mr Y. Grozev, lawyers practising in Sofia.

The BDU was originally established in 1901 as a professional association of medical doctors. During World War II membership in the union became compulsory. After the war the union was liquidated.

Similarly, the Union of Dentists in Bulgaria („Съюз на стоматолозите в България“ – “UDB”) was established in 1905 as a professional association of dentists and ceased to exist after World War II.

In 1991 an organisation named BDU was founded by a group of medical doctors. It was registered as a notforprofit association under the Persons and Family Act (the statute governing this type of organisations). The association was active on the whole territory of Bulgaria and had numerous members. The applicant in application no. 48961/99, Ms Vakarelova, was one of its members. Between 1991 and 1993 she chaired the regional section of the BDU in the Fourteenth Regional Hospital.

On 8 July 1998 the Bulgarian Parliament adopted PODDA. The Act was published in the State Gazette on 21 July 1998 and entered into force on 25 July 1998. It established two organisations: the BDU and the UDB, and provided, in paragraph 9 of its transitional and concluding provisions, that the two organisations were the respective successors of the BDU of 1901 and the UDB of 1905. By virtue of PODDA all practising medical doctors and dentists in the country were obliged to become members of, respectively, the newly established BDU and UDB. Those medical doctors and dentists who were not practising could, but were not obliged to, become members. PODDA introduced amendments to the Labour Code and Criminal Code whereby a medical doctor or a dentist working under an employment contract who had not become a member of the respective union was liable to be dismissed from work without notice and became criminally liable if he or she continued to practise.

In August 1998 sixty Members of Parliament requested the Constitutional Court to declare PODDA unconstitutional. They argued that compulsory membership in the BDU and the UDB went against Article 44 of the Constitution, enshrining, inter alia, negative freedom of association. They further submitted that the Act infringed Article 48 of the Constitution, guaranteeing the right to work, and also the principle that government functions should not be entrusted to public organisations without their express consent. They also maintained that the Act created undue privileges for the two unions to the detriment of other organisations and that it regulated matters which should have been left to the discretion of the unions’ governing bodies. Finally, the MPs asserted that section 34(1)(7) of PODDA was vague and could lead to unjustified gathering of irrelevant information about BDU and UDB members.

The Constitutional Court gave judgment on 11 November 1998. In respect of the allegation that PODDA infringed the medical doctors’ and dentists’ negative freedom of association it held as follows:

Through PODDA the legislature regulated the structure, the organisation and the activities of the professional organisations of the medical doctors and the dentists, the conditions for practising medicine and odontology, and the responsibility for breaches of professional ethics. According to section 1(2) of the Act the professional organisation of medical doctors is the BDU, and that of dentists – the UDB. Section 3(1) provides that all medical doctors and dentists who practise their profession must be members of the BDU or the UDB, respectively.

The [Members of Parliament] who filed the request maintain that the above provisions contravene Article 12 § 1, Article 44 § 1 and Article 48 §§ 1 and 3 of the Constitution of the Republic of Bulgaria, as well as international treaties ... which ... are part of the domestic law of the country... It is submitted that by requiring all practising medical doctors and dentists to be members of the BDU and the UDB the Act infringes the constitutionally protected freedom of association (Article 44 of the Constitution), because it brings about an element of compulsion which is irreconcilable with that freedom.

In addition, according to the request, the provisions of the challenged Act run counter to Article 48 §§ 1 and 3 of the Constitution of the Republic of Bulgaria, which proclaims on the one hand the citizens’ right to work and on the other – the obligation for the State to create the conditions for the realisation of that right.

The Constitutional Court finds that these submissions and the arguments presented in support of the request are illfounded.

I.1. PODDA does not contain a provision which excludes the right of other organisations, including professional and tradeunion type, founded by medical doctors and dentists, to exist alongside the BDU and the UDB. It does not proscribe the establishment of associations by medical doctors and dentists under the Persons and Family Act or another statute. Therefore, the Act does not run counter to Article 44 § 1 of the Constitution. It does not affect the constitutionally protected freedom of association, because that freedom pertains to privatelaw associations, including trade unions under Article 49 of the Constitution. This constitutionally recognised freedom includes not only the freedom to take up the initiative and to form an association, respectively to become a member of an existing one, but also the socalled “negative freedom”, i.e. the right to not become a member of an existing association.

PODDA does not lie on the plane of Article 44 § 1 of the Constitution. It is an Act which creates publiclaw corporations with compulsory membership of medical doctors and dentists. These corporations are endowed with certain publiclaw functions: to organise, control and discipline medical doctors and dentists. Accordingly, freedom of association, proclaimed by Article 44 § 1 of the Constitution, does not apply to them: they are created by statute and not through the free will of their members.

The Constitutional Court considers that, when deciding on the applicability of Articles 12 and 44 of the Constitution to publiclaw corporations, it must have regard to the caselaw of the European Court of Human Rights and the interpretation of Article 11 § 1 of the European Convention for the Protection of Human Rights and Fundamental Freedoms [(“ECHR”)]. This provision corresponds to Article 44 § 1 of our Constitution. This is so, because [ECHR] is part of domestic law and, according to its Article 46, the judgments of the European Court of Human Rights [and the interpretations of the ECHR contained therein] are binding on all State bodies in the country.

[In] a judgment of the European Court of Human Rights in Strasbourg of 27 May 1981, the issue [was] whether the compulsory membership of medical doctors in a publiclaw corporation – “Ordre des médecins” –, created by act of the king of Belgium, ran counter to Article 11 § 1 of the ECHR (which corresponds to Article 44 § 1 of our Constitution). That corporation’s aim was to protect the citizens’ health by exercising control over the practice of medicine. This function led to [the giving] a number of administrative powers to the “Ordre [des médecins]”, including the power to discipline the medical doctors registered with it. According to the unanimous judgment of the European Court of Human Rights, the corporation of Belgian medical doctors “Ordre [des médecins]” could not be considered as an association within the meaning of Article 11 of the ECHR and [compulsory membership in it] did not run counter to this Article.

It should be pointed out that a similar opinion was expressed by the German Federal Constitutional Court and by the prevailing German doctrine in respect of the various publiclaw corporations (the socalled “chambers”) which exist in Germany, such as: the lawyers’, notaries’, medical doctors’, dentists’, pharmacists’, handicraftsmen’s, etc. chambers. According to this opinion, the compulsory membership of the persons who practise the respective professions in these chambers does not contravene Article 9 § 1 of the Constitution of the Federal Republic of Germany which proclaims freedom of association, because that Article concerns the formation of notforprofit associations and of companies, which are of privatelaw character and thus do not fall in the category of publiclaw corporations. For this reasons these corporations [were] not [considered] unconstitutional...

In order to better understand the fundamental difference between a publiclaw corporation with compulsory membership of all persons who practise the respective profession and a voluntary privatelaw association, regard must be had to the European Court of Human Right’s judgment of 13 August 1981 in the case of Young, James and Webster [v. the United Kingdom, series A no. 44]. Its subjectmatter was an agreement for the compulsory membership of employees in a trade union. Since Article 11 § 1 of the ECHR (corresponding to Article 44 § 1 of our Constitution) applies to trade unions, the European Court in Strasbourg found in favour of the applicants, because it found that the freedom of association in trade unions could not be restricted through compulsory membership in a given trade union under the threat of dismissal from work of an employee who was not a member.

The abovementioned judgments of the European Court of Human Rights draw a sharp distinction between publiclaw corporations, which have compulsory membership, and privatelaw associations, including trade unions. Article 11 § 1 of the ECHR, corresponding to Article 44 § 1 of our Constitution, applies only to privatelaw associations. The conclusion drawn by the Constitutional Court is that PODDA does not contravene Article 44 § 1 of the Constitution.

A decisive argument in support of this conclusion is Article 134 of the Constitution. Article 134 provides that the Bar is selfgoverning and provides for the adoption of a special statute on its organisation and activities. It is common knowledge that in many countries, and in our country even before the Constitution of 1991, the practising of the legal profession was subject to membership in the respective lawyers’ organisation, i.e. registration of the person wishing to practise as a lawyer in this organisation. It is therefore beyond question that the Bar is a telling example of a publiclaw corporation. These elements abound in our Bar Act [of 1991]. It is true that the Constitution does not expressly provide that the medical doctors’ and dentists’ unions should be corporations with publiclaw elements. But this is by no means necessary. The formation of various corporations with publiclaw elements is a matter of legislative discretion and is not dependent upon an express constitutional command. By its very nature the Constitution cannot and should not exhaustively enumerate the permissible forms of organisation. But when it regulates the Bar, it clearly indicates that organisations like it are compatible with the Constitution. Such an organisation is also the Notaries Chamber (see the Notaries Act [of 1996]). Such is also the Act challenged before the Court.

Through this Act the State performs its obligation under Article 52 § 3 of the Constitution to protect the citizens’ health and to provide them with highquality health care. By entrusting to medical doctors and dentists themselves the supervision of the two professions through corporations ran by them, the challenged Act manages to achieve in the most expedient manner the observance of the Professional Ethics Code and the Rules of Good Medical Practice, as well the regulation of the profession. Otherwise these functions would have to be entrusted to civil servants who would not be as competent and would cost considerable amounts of money to the State budget. This explains why the manner of organisation of medical doctors and dentists used by PODDA is also used in a number of European countries such as Austria, Belgium, Germany, Greece, Italy, Spain, Iceland, Poland, Slovenia, Croatia, the Czech Republic, [and] France.

PODDA is necessary also because of the inseverable link between it and the Health Security Act [of 1998 („Закон за здравното осигуряване“ – “HSA”)], because health insurance, guaranteed by Article 52 § 1 of the Constitution, may function only if the organisations of medical doctors and dentists created by PODDA exist. These organisations are parties to the National Framework Agreement concluded for the purpose of carrying out the activities under HSA. By section 55 of HSA, the National Framework Agreement regulates the conditions for and the manner of selecting medical service providers, the forms, conditions and manner in which medical services are dispensed, the amount, prices and method of payment for the medical services and drugs, as well as all other matters relating to health security. In other words, not a single health security activity could be carried out without this Agreement, which would deprive the citizens of the possibility to exercise their constitutionally guaranteed (Article 52 § 1 [of the Constitution]) right to health security. This convincingly demonstrates that not only does PODDA not contravene the Constitution, but that it is in fact mandated by the Constitution, so that the right guaranteed by Article 52 § 1 of the Constitution becomes a social reality.

As regards the allegation that section 34(1)(7) of PODDA was vague and allowed the gathering and retention of personal information, the Constitutional Court held:

“... it is true that point 7 [of section 34(1)] has a blanket wording. However, it is sufficient to connect this provision with section 32 of [PODDA] in order to see that the term “other circumstances” means a number of facts set forth in section 32(3), without being expressly referred to in section 34(1) points 1 to 6, but which should nevertheless be entered in the register (e.g. length of service, indication that a doctor is a foreign national, [and] criminal record). If sections 32 and 34 are construed in connection with one another, the conclusion could and should be that “other circumstances” means exactly the facts mentioned in section 32. Thus, the blanket wording of point 7 of section 34(1) becomes clear and the alleged infringement of the rights set forth by Article 32 of the Constitution is excluded.”

Five judges dissented from the Constitutional Court’s judgment, each writing an individual dissenting opinion.

The dissenting judges were of the opinion, inter alia, that the BDU and the UDB could not be considered as falling outside the scope of Article 44 of the Constitution. The argument that they had been created by law was not persuasive because PODDA had merely branded two notforprofit associations “professional organisations” and had endowed them with certain publiclaw functions without declaring their liquidation or transformation or annulling the court’s decisions for their registration; it was doubtful whether this could be done by an Act of Parliament. The unions were essentially privatelaw associations, much like the one at issue in the case of Sigurður A. Sigurjónsson v. Iceland (judgment of 30 June 1993, Series A no. 264). Also, the notion of publiclaw functions was not unambiguous and could not serve as a basis for excluding the unions in question from the ambit of Article 44 of the Constitution. Indeed, by section 5(1) of PODDA, the two unions represented their members and protected their professional rights and interests, which were functions of a typical association or trade union.

“1. Citizens’ associations shall serve for fulfilling and protecting citizens’ interests.

Citizens’ associations, including trade unions, may not pursue political goals or carry out political activities that are characteristic solely of political parties.”

“The private life of the citizens shall be inviolable. Everyone shall have the right to be protected against illegal interference in his private or family life and against encroachments on his honour, dignity and reputation.”

“1. Citizens may associate freely.

Organisations whose activity is directed against the sovereignty, the territorial integrity of the country [or] the unity of the nation, towards the incitement of racial, national, ethnical or religious enmity, towards the infringement of the citizens’ rights and freedoms, as well as organisations which seek to achieve their goals through violence, shall be prohibited.”

The structure, the organisation and the activities of the professional organisations of the doctors and dentists – the BDU and the UDB –, are regulated by PODDA (section 1(1)).

By section 3 of the Act, all practising medical doctors and dentists must be members of the respective union, whereas the membership of nonpractising doctors and dentists is optional.

PODDA provides that the functions of the BDU and the UDB are as follows: a) to represent their members and protect their professional rights and interests; b) to represent their members as parties to the National Framework Agreement with the National Health Security Fund; c) to draft a Professional Ethics Code for medical doctors, respectively dentists, and to exercise control for compliance with that Code; d) to adopt, together with the National Health Insurance Fund, Rules for Good Medical Practice, to submit them for approval by the Minister of Health and to exercise control for compliance with them; e) to impose the sanctions which PODDA provides for medical malpractice; f) to draw up and keep a national and regional registers of their members; g) to participate in the organisation and conducting of professional qualification courses for doctors and dentists; h) to appoint representatives to the High Medical Council at the Ministry of Health; i) to express opinions on draft bills and regulations in the area of public health; j) to cooperate with other organisations and institutions in the country and abroad; k) to provide assistance to their members and their families in case they need it; l) to carry out any other activity which their statutes provide for (section 5).

PODDA provides that the BDU and the UDB are legal persons and sets forth their structure and bodies. By section 18 of the Act, the BDU and the UDB have regional sections in all municipalities of the country. All practising medical doctors and dentists within a given municipality must be members of the regional section of the BDU or the UDB, respectively. The central bodies of the BDU and the UDB are their conventions (consisting of the elected representatives of their regional sections – section 8(1)), their managing boards (consisting of a chairperson, deputychairpersons, secretarygeneral and members – section 11), their control commissions (consisting of a chairperson and members – section 15(1)), and their professional ethics commissions (consisting of a chairperson and members – section 16(1)). The regional bodies of the unions are the general meetings of all practising doctors, respectively dentists, in the region (consisting of the delegates – at a one to ten rate – of all doctors or dentists within the given region – section 20(1)), the managing boards of the regional sections (consisting of a chairperson, deputychairpersons, secretarygeneral and members – section 23(1)), the control commissions of the regional sections (consisting of a chairperson and members – section 26(1)), and the professional ethics commissions of the regional sections (consisting of a chairperson and members – section 28(1)). The Act describes in detail the powers of each of the bodies.

Under HSA, health coverage for all Bulgarian citizens and foreigners permanently residing on the territory of Bulgaria is provided by the National Health Security Fund („Национална здравноосигурителна каса“)(section 33 of HSA). The Fund, which receives monthly payments in respect of all persons with health coverage (section 40 of HSA), enters into a National Framework Agreement with the BDU and the UDB, as established by PODDA (section 54 of HSA). The National Framework Agreement sets forth, inter alia, the types of medical services to which all persons with health coverage are entitled, the manner of their dispensing, and the prices that the medical service providers (hospitals and medical doctors and dentists) can charge the Fund and the patients for these services (a patient pays a minimal amount every time he or she uses medical services and the remainder is paid directly by the Fund)(section 55(2) of HSA). The Agreement between the Fund and the BDU and the UDB is renegotiated every year (section 55(1) of HSA). Thus, the BDU and the UDB represent all medical doctors and dentists for the purpose of negotiating the terms of the Agreement and therefore the prices hospitals and doctors and dentists can charge the Fund for providing medical services to persons with health coverage and the manner of providing such services. The Agreement must be countersigned by the Minister of Health and is subject to control by the Supreme Administrative Court in the same manner as is delegated legislation (решение № 8145 от 18 август 2003 г. по адм. д. № 3896/ 2003 г., V чл. св на ВАС, обн. ДВ, бр. 76 от 2003 г.).

All hospitals, other medical institutions and individually practising medical doctors and dentists enter into individual contracts with the local branches of the Fund pursuant to the National Framework Agreement (section 59(1) of HSA). These contracts cannot deviate from the terms of the National Framework Agreement (section 59(2) and (8) of HSA).

Section 25a(4)(4) of the Public Health Act of 1973 („Закон за народното здраве“), as in force until 1999, and section 40(6) of the Medical Institutions Act of 1999 („Закон за лечебните заведения“), which superseded it, provide that in order to register private practice a medical doctor or a dentist has to produce a certificate to the effect that he or she has been registered with the BDU or the UDB, respectively.

Article 324 § 2 of the Criminal Code, as amended by PODDA, provides that a medical doctor or a dentist who practises his or her profession in violation of the law is punishable with up to three years’ imprisonment or a fine from one to three hundred Bulgarian levs.

By Article 330 § 2 (2) of the Labour Code, as amended by PODDA, a medical doctor or a dentist may be dismissed from work without notice if he or she had been struck off the registers kept respectively by the BDU or the UDB.

Section 34(1) of PODDA enumerates the kinds of information which should be entered in the registers of medical doctors and dentists kept by the regional sections of the BDU and the UDB. While points 1 to 6 of section 34(1) set forth specific types of information (e.g. name, address, education, speciality), point 7 of that section provides that in the register shall be entered “other circumstances”.

Section 32(3) of PODDA provides that the application for membership in the BDU, respectively the UDB, should be accompanied by a diploma, a document certifying that in case of a career interruption of more than five years the medical doctor or dentist has successfully passed a validation examination, a scientific degree certificate (if the doctor or dentist has one), a document certifying the place of work and the length of service, and, for foreign nationals – a residence permit and a document certifying that have passed the requisite examinations, as well as a criminal record.

In 2002 Parliament adopted the Protection of Personal Data Act („Закон за защита на личните данни“), the purpose of which was to guarantee the integrity of the person and the private life by protecting the individuals from illegal processing of personal data relating to them and to regulate the right of access to such data (section 1(2) of the Protection of Personal Data Act).


Lech Garlicki;Nebojša Vučinić;Nicolas Bratza;Sverre Erik Jebens;Vincent A. De Gaetano;Zdravka Kalaydjieva

The applicant, Mr Jusuf Alibašić, is a citizen of Bosnia and Herzegovina who was born in 1971 and lives in Goražde. The Government of Bosnia and Herzegovina (“the Government”) were represented by their Deputy Agent, Ms Z. Ibrahimović.

This is the applicant’s second case before the Court. The facts relevant to this case, as submitted by the parties, may be summarised as follows.

Given his history of mental illness, the applicant was deprived of legal capacity and placed under the guardianship of his half sister in 1998.

From 21 June 1999 until 16 June 2006 he was detained in Zenica Prison Forensic Psychiatric Annex pursuant to the criminal and mental health legislation. In the applicant’s first case, the Court held that from 1 September 2003 until 16 June 2006 the applicant’s deprivation of liberty had not been “in accordance with a procedure prescribed by law” within the meaning of Article 5 § 1 of the Convention as he had been held in psychiatric detention without a decision of the competent civil court (see Tokić and Others v. Bosnia and Herzegovina, nos. 12455/04, 14140/05, 12906/06 and 26028/06, 8 July 2008). He was awarded 15,000 euros for non-pecuniary damage.

On 16 June 2006 the Goražde Social Work Centre placed the applicant in Drin Social Care Home and on 20 January 2010 in Duje Social Care Home in accordance with the social care legislation. On 14 September 2010 the Constitutional Court of Bosnia and Herzegovina held that the applicant’s deprivation of liberty had not been “in accordance with a procedure prescribed by law” within the meaning of Article 5 § 1 of the Convention as he had been held in psychiatric detention without a decision of the competent civil court. It found also that Article 5 § 4 of the Convention had been breached because of lack of judicial review of the lawfulness of the applicant’s detention.

On 24 November 2010 the competent civil court finally examined the applicant’s case. It ruled that the applicant could not be held in Duje Social Care Home. The applicant was released on 31 January 2011.


The applicant, born in 1955, is a Turkish citizen who is resident in İzmir. He is a driver.

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

In early 1991 the applicant filed a petition with the İzmir Governor’s office for leave to participate in a public auction for 150 commercial taxi licence plates, which was to take place on 6 June 1991.

On 24 May 1991 the İzmir Security Directorate’s Traffic Commission rejected the applicant’s request on the ground that he did not meet the eligibility requirements for the auction.

On 13 June 1991 the Traffic Commission sent a letter to the applicant explaining that his request was rejected because he was earning his living not only as a driver but also as a cloth-seller, as indicated in the information in the registry of the Basmane Tax Office in İzmir. The Commission further explained that, under decree no. 86/10553, only those earning their living as drivers were eligible to take part in the auction.

On 14 June 1991 the applicant brought an action before the İzmir Administrative Court. He alleged that he was eligible for the auction because he worked as a driver and was a member of the İzmir Drivers’ and Automobilists’ Association. He also stated that he had stopped working as a cloth-seller long before the auction. He asked the court to set aside the Traffic Commission’s decision of 24 May 1991 and to order a stay of execution of the decisions taken at the auction.

On 20 January 1994 the İzmir Administrative Court set aside the Traffic Commission’s decision of 24 May 1991. It held that the applicant would be eligible for similar auctions in the future. The court rejected the applicant’s request for an order to stay the execution of the auction decisions.

On 10 March 1995 the applicant brought an action before the İzmir Administrative Court against the İzmir Governor’s office. He alleged that he had suffered a loss of three billion Turkish liras because he could not work as a taxicab driver as he was not admitted to the auction and could not buy a taxicab licence plate.

On 9 November 1995 the İzmir Administrative Court dismissed the applicant’s action. The court stated that even if the applicant had been admitted to the auction, he would not necessarily have succeeded in buying a taxicab licence plate. The court further considered that the applicant’s claim was based on assumption and that he had not suffered damage. It held that the applicant would be eligible for future auctions according to the Administrative Court’s decision of 20 January 1994.

On 17 January 1996 the applicant lodged an appeal with the Supreme Administrative Court (Conseil d’Etat) against the judgment of 9 November 1995.

On 3 March 1997 the Supreme Administrative Court dismissed the applicant’s appeal.


The applicant is a Maltese national, born in 1944. He is currently serving a fifteenyear prison sentence in Malta.

He is represented before the Court by Professor Ian Refalo, Dr Marse-Ann Farrugia, Dr Joseph Galea Debono and Dr Edward Wood, all lawyers practising in Malta.

A.

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

At the time of the events giving rise to his prosecution and conviction, the applicant was a Commissioner of Police in Malta.

In 1987 the Government of the day ordered the re-opening of a criminal inquiry into the circumstances surrounding the death of a suspect at the police headquarters in 1981 which occurred when they were in opposition. In 1989, following the close of the inquiry, the applicant was charged with the following offences arising out of the incident: perjury; wilful homicide; giving false testimony under oath; and three separate charges of subornation of three police witnesses. On 7 February 1991 the Court of Criminal Appeal declared the three charges relating to witness subornation null and void.

Before the applicant’s trial opened on 11 January 1993, the applicant, then on bail, appeared before a criminal court charged with having breached the conditions of his bail. On 7 January 1993 the court revoked the applicant’s bail, being satisfied that there was sufficient evidence to prove that the applicant had approached a prosecution witness in circumstances which showed that the intention was to corrupt the latter’s evidence at the forthcoming trial. The court ordered a ban on the publication of these proceedings.

According to the applicant the trial opened against the background of intense and sustained media coverage and political discussion. The applicant cites among other incidents the appearance in a newspaper before the jury was empanelled of a report alleging that he had been found guilty of violations of human rights. The editor of the newspaper was subsequently found guilty on 30 June 1993 of contempt of court. The court which convicted the editor considered that the report could have had a negative affect on the jury causing irreparable harm to the applicant. He also points to the fact that a witness who had failed to appear at the bail revocation proceedings was subsequently tried on a perjury charge a couple of days before his own trial with the result that the public learned in press reports dated 8 and 23 January 1993 that his bail had been revoked.

The trial commenced on 11 January 1993 and was presided over by the same judge who had earlier ordered the applicant’s bail to be revoked. Following empanelment the judge instructed the jury to disregard anything which they may have heard or read about the case.

On 12 February 1993 the prosecution announced at the close of its case that it had no further evidence to present to the court. Among the witnesses called by the prosecution were three persons who had testified against him in the earlier proceedings in which his bail had been revoked. According to the applicant the result was to allow these witnesses to give evidence on the circumstances which led to the revocation of the applicant’s bail thus creating for him a new case to answer. Three police officers also gave evidence against the applicant. Two of these officers who had admitted to beating up the suspect had been granted a presidential pardon to secure their testimony against the applicant.

Throughout this phase of the trial the applicant took detailed notes of the case against him in order to facilitate the giving of his own evidence in rebuttal at the appropriate moment. The applicant began his testimony on 15 February 1993. When the morning sitting was adjourned at 1.15 p.m., the prosecution requested the court to disallow the applicant use of his notes. The court upheld the request and ordered the confiscation not only of the notes but also other documentation including legal materials which the applicant had assembled in his place of confinement for the purposes of preparing defence.

The afternoon sitting resumed at 3.30 p.m. on 15 February 1993. Before the jury were admitted to the courtroom, the applicant’s counsel informed the presiding judge that the applicant was experiencing difficulty in testifying without the aid of his notes. Submissions were made on this matter by counsel for both sides. The applicant’s counsel insisted that the materials in the case were so voluminous that it would be impossible for any witness to remember everything without the aid of reference materials. The presiding judge decided to postpone a decision on the issue. The applicant resumed his evidence. At 5.15 p.m. the prosecution commenced its cross-examination of the applicant. The cross-examination was later suspended, whereupon the applicant’s counsel again raised the issue of his client’s notes. Both counsel entered minutes in the record of the proceedings setting out their respective views on the matter. At a later stage the presiding judge ruled as follows:

“Until such time as the accused concludes his testimony he is precluded from having access to any writing except that indicated in section 583 of the Code of Organisation and Civil Procedure.”

The applicant concluded his evidence on 17 February 1993. The following days were taken up with matters such as the hearing of witnesses requested by the jury, the defence speech, the prosecution’s reply, the addresses to the jury and the latter’s deliberations and verdict.

In his summing up to the jury the judge gave directions on the relevant law and stressed that it was for the jury to reach its decision on the basis of the facts and without taking into account any extraneous matters. The judge advised the jury that the applicant was to be presumed innocent until proved guilty and it was for the prosecution to prove guilt to the criminal standard of beyond reasonable doubt. He further stressed the need to subject to scrutiny the evidence of those witnesses who had testified in return for a pardon and that the applicant could not be convicted on the sole evidence of an accomplice.

On 10 March 1993 the jury, after seven and a half days of deliberations, found the applicant not guilty of the charge of wilful homicide but guilty of being an accomplice to the crime of causing grievous bodily harm resulting in death. According to the applicant he was never charged with the latter offence but was nevertheless found guilty of it. He was found not guilty of the perjury charge but guilty of giving false evidence under oath. However, on the same day the court acquitted him of the perjury charge and declared the related charge to be time-barred.

The applicant was sentenced to a term of imprisonment of fifteen years on the charge of being an accomplice to the crime of causing grievous bodily harm resulting in death.

On 15 April 1994 the Court of Criminal Appeal confirmed the judgment and sentence of the trial court. Although the court held for the first time that the confiscation of a defendant’s notes at his trial was illegal under Maltese law, it nonetheless found that no miscarriage of justice had taken place at the applicant’s trial having regard to the strength of the evidence against him. As to the applicant’s complaint that the fairness of the trial was impaired on account of the adverse media reporting of the case, the court held that the balance between the applicant’s rights as an accused person and the freedom of the press had not been disturbed to the point where it could be said that the media coverage had a negative influence on the deliberations of the jury and the verdict reached. The court also ruled that the applicant had the opportunity to challenge the presence of the trial judge under domestic law. Since he had failed to do so it was no longer open to him to raise the issue of the judge’s impartiality on appeal.

The applicant appealed to the First Hall of the Civil Court contending that he had been denied a fair trial in breach of the guarantees laid down in the Maltese Constitution and the European Convention on Human Rights. On 5 August 1997 his appeal was rejected, the court being of the opinion that the applicant’s complaints whether taken individually or collectively did not substantiate that he had been denied a fair trial.

The applicant subsequently appealed to the Constitutional Court, which in its judgment of 18 August 1998 dismissed his appeal. The Constitutional Court acknowledged that the applicant’s right to a fair trial had been breached since the confiscation of his reference materials had seriously disrupted his defence. It stated in this regard that:

“... the confiscation of the notes and other books of the applicant and this after he has already started testifying and without a forewarning, certainly hindered the testimony given by him in defence, both from the factual aspect and from the psychological one and this particularly because those notes which were prepared by him to conduct the defence did not necessarily refer to evidence previously given ...

...The Court is therefore of the opinion that in this regard and limited to this grievance, the right of the [applicant] to a fair hearing before the first Court was violated ...”

However the Constitutional Court then proceeded to rule that the criminal proceedings, taken as a whole, had been fair. The court noted also that it was relevant that at no time before the Court of Criminal Appeal had the applicant asked to give evidence with the assistance of those materials.

In line with the rulings of the appellate courts, the Constitutional Court also found that the applicant had not adduced any concrete proof that the jury or the trial or appeal court judges had been influenced by press coverage of the proceedings or related political statements. It noted, inter alia, that the jury had taken a considerable length of time in reaching a verdict. Furthermore, the court rejected the applicant’s challenge to the impartiality of the trial judge, inter alia, on the ground that he had not raised this matter at the appropriate moment in the trial and had not availed himself of domestic remedies for this purpose.

B. Relevant domestic law

Section 39 of the Constitution of Malta provides:

(6) Every person who is charged with a criminal offence –

(b) shall be given adequate time and facilities for the preparation of his defence; …”

Sections 506-508 of the Criminal Code provide as relevant:

“506. The Court of Criminal Appeal may, if it thinks it necessary or expedient in the interest of justice –

(c) if it thinks fit receive the evidence, if tendered, of any witness (including the appellant) who is a competent but not compellable witness, and, if the appellant makes an application for the purpose, of the husband or wife of the appellant, in cases where the evidence of the husband or wife could not have been given at the trial except on such application, subject to the provisions of section 635.

Without prejudice to the generality of the last preceding section, where evidence is tendered to the court under that section, the court shall, unless it is satisfied that the evidence if received would not afford any ground for allowing the appeal, exercise its power under that section of receiving it if –

(a) it appears to it that the evidence is likely to be credible and would have been admissible at the trial on an issue which is the subject of the appeal; and

(b) it is satisfied that it was not adduced at the trial but that there is a reasonable explanation for the failure so to adduce it.

(1) Where an appeal against conviction is allowed by reason only of evidence received or available to be received by the Court of Criminal Appeal under sections 506 and 507 or by reason of a point raised under paragraph (b) of subsection (1) of section 501 and in each case it appears to the court that the interests of justice so require, the court may, instead of directing the entry of a judgment and verdict of acquittal as provided by subsection (2) of section 501 or by paragraph (b) of subsection (4) of section 503, order the appellant to be retried.”

Section 583 of the Code of Organisation and Civil Procedure reads as follows:

“A witness may refresh his memory by referring to any writing made by himself or by another person under his direction at the time when the fact occurred or immediately thereafter, or at any other time when the fact was fresh in his memory and he knew that the same was correctly stated in the writing; but in such case, the writing must be produced and may be seen by the opposite party.


The applicant, Ms Zuzana Duchoňová, is a Czech national who was born in 1961 and lives in Brno.

In a letter of 4 May 2000 the applicant informed the Ministry of Justice (ministerstvo spravedlnosti) that in 1998 and 1999 Ms B., her sister-in-law living in Switzerland, had forced her into prostitution in Ms B.’s establishment under threat that she would tell the applicant’s husband that his wife had prostituted herself during her visits in Switzerland.

On 15 May 2000 the Ministry of Justice informed the applicant that her criminal complaint for defamation and blackmail, to which she had joined a claim for damages, had been transferred to the Břeclav District Prosecutor’s Office (okresní státní zastupitelství). On 23 May 2000 the latter informed her that the complaint would be dealt with by the Brno Municipal Prosecutor’s Office (městské státní zastupitelství) which, in turn, on 20 June 2000, transferred it to the Brno-Bystrc Police District Office (obvodní oddělení policie). Having questioned the applicant on 20 July 2000 and her husband and son on 30 July 2000, the Police District Office sent it back to the District Prosecutor’s Office on 19 September 2000.

On 4 October and 29 November 2000 respectively, the applicant informed the District Prosecutor’s Office that she maintained her criminal complaint claiming damages of CHF 150,000 (EUR 95,000). She further criticised the prosecutor for the fact that her husband and son had been implicated in the investigation proceedings and interviewed by the police.

In a letter of 4 December 2000 the District Prosecutor, having summed up the previous procedural steps taken by the authorities involved in the case, replied that the hearing of the applicant’s husband and son had been necessary in order to established the relevant circumstances. The prosecutor further noted:

“In your letters of [4 May, 4 October and 29 November 2000 respectively] ... you further claimed damages of CHF 150,000. At this stage of the proceedings, ... there is nothing which would deprive you from filing a civil action for protection of ‘personal rights’ and claim damages if you feel to be injured by the statements of Ms [B.]. Within the framework of the criminal proceedings, which however are not yet pending because, as you have already been said above, the case is only in a stage of examination of the facts ..., not in a stage of criminal prosecution within the meaning of the Code of Criminal Procedure, you could claim damages caused by a criminal act of a third person. ... [T]his is, however, premature at this stage of the proceedings.

I inform you that the case is in the stage of examination within the meaning of section 158(3) of the Code of Criminal Procedure. It was not yet possible to proceed with the criminal prosecution and, so far as you seek the financial compensation, you have to address a civil court with a civil action.”

In a letter of 3 March 2001 the Hustopeče u Brna Police District Office informed the applicant that her criminal complaint against Ms B. could not be settled, the District Prosecutor’s Office not yet having received letters rogatory for a Swiss prosecutor to hear Ms B. in Zürich where Ms B. had her residence.

On 14 November 2001 Ms B. was questioned. She denied the applicant’s accusation.

On 10 May 2002 the applicant’s son was again questioned, but used his right not to testify. On 28 May 2002 the applicant and her husband were reheard. They maintained the contents of their previous arguments and statements.

In a letter of 26 June 2002 the District Prosecutor informed the applicant that the examination of her criminal complaint was still pending and should finish by 30 August 2002.

On 12 August 2002 Ms B. was again questioned, denying the applicant’s accusation. Her son corroborated Ms B.’s statement.

On 20 August 2002 the applicant was informed that the file had been sent to the Břeclav Criminal Police Investigation Service (Služba kriminální policie a vyšetřování) with a proposal to institute criminal proceedings.

By a resolution (usnesení) of 16 September 2002 the Criminal Police Investigation Service decided to refuse to act in a matter under section 159a(1) of the Code of Criminal Procedure as there was no reasonable suspicion that Ms B. had committed any criminal offence. The ruling further stated:

“Having examined the facts as provided for in section 158 of the Code of Criminal Procedure, [the police authority] did not find any facts which would prove that any criminal offence had been committed. ... Bearing in mind that criminal legal relations were not affected, no criminal prosecution of a particular person could be commenced. [It is clear] that [the problem concerns] the civil legal relations which could be settled in a civil way.”

On 27 January 2003 the District Prosecutor, following the applicant’s complaint (stížnost), quashed this resolution, and sent the case back to the Criminal Police Investigation Service for further investigation.

By a resolution of 29 July 2003 the latter, having complemented the examination of the facts, again decided to refuse to act in a matter under section 159a(1) of the Code of Criminal Procedure as there were no factors which would confirm the applicant’s incriminating statement that she had been blackmailed by Ms B. or that the latter had defamed her.

On 27 November 2003 the Ministry of Justice sent a copy of the resolution to the applicant.

In a letter of 4 December 2003 addressed to the Ministry, the applicant expressed her disappointment with the results of the examination proceedings and with the manner in which her criminal complaint had been dealt with. She pointed out that the resolution had not been notified to her.

On 13 August 2004 the applicant filed a complaint against the Criminal Police Investigation Service’s resolution of 29 July 2003.

On 11 October 2004 the Brno Regional Prosecutor (krajský státní zástupce) found it unsubstantiated stating, inter alia:

“Your submission was not examined as a complaint against the aforesaid resolution ..., because while the police authority immediately dispatched the resolution ..., it did not succeed to notify it to you and, after the mail having been consigned at the post office ... , you did not collect it within the ten following days. The last day of this time-limit is considered ... as the day of the delivery of the mail, from which a three-day time-limit for filing a complaint starts running. For these reasons, the complaint filed after the expiry of the time-limit had to be rejected without an examination on the merits ...

... In the examination proceedings [the police authorities] collected all material in evidence necessary for clarification and examination of [your criminal complaint]; however, the suspicion of committing an offence was not confirmed. This conclusion does not affect the fact that you can claim damages [against Ms B.] by way of a civil action brought to a competent court.”

Chapter nine of the Code governs the procedure before the formal institution (commencement) of criminal prosecution. Under this chapter, the police authorities inter alia receive and obtain relevant information and evidence and conduct investigations with a view to detecting criminal offences, establishing their perpetrators and preventing criminal activities (examination proceedings – prověřování).

The procedure before the formal institution of a criminal prosecution may result in a decision to refuse to act in a matter under section 159a(1)-(4) (odložení věci) or to refer a matter to the minor offences, disciplinary or other authority under section 159a(1) (odevzdání věci), or to institute a formal criminal prosecution (zahájení trestního stíhání) under section 160(1).

In accordance with section 159a(1), a prosecutor or police authority is to refuse to act in a matter if there is no suspicion that a criminal offence has been committed and no other steps are appropriate, such as for example referring the matter to the competent minor offences authority or disciplinary authority.

Under section 159a(2), a prosecutor or police authority is to refuse to act in a matter also if the institution (commencement) of a criminal prosecution is not permitted pursuant to section 11(1).

Under section 159a(4), a prosecutor or police authority is to refuse to act in a matter if there are no factors allowing the institution of a criminal prosecution under section 160. Once the reasons for the refusal ceased to exist, the criminal prosecution shall commence.

In accordance with sections 159a(5) and 159a(6), a copy of the decision not to act in a matter is to be served on a victim, who has a right of appeal against it. The person on the basis of whose motion the decision was given is notified about it if he or she asks for.

Section 159b provides for a temporary refusal to act in a matter.

The institution of formal criminal prosecutions is governed by Chapter ten, Section one. Under section 160(1), a police authority is to immediately instigate a criminal prosecution (zahájení trestního stíhání) if the information obtained indicates that a criminal offence has been committed by a particular person and if there is no reason for refusing to act in the matter pursuant to sections 159a(2), 159a(3) or 159b(1).

According to section 11, any natural person has the right to protection of his or her personal integrity (osobnost), in particular his or her life and health, civil and human dignity, privacy, name and personal characteristics.

Pursuant to section 13(1), any natural person has the right to request that an unjustified infringement of his or her personal rights should be stopped and the consequences of such infringement eliminated, and to obtain appropriate satisfaction.

Section 13(2) provides that in cases when the satisfaction obtained under Section 13(1) is insufficient, in particular because a person’s dignity and position in society has been considerably diminished, the injured person is entitled to compensation for non-pecuniary damage. Under paragraph 3 of section 13, when determining the amount of such compensation the courts have to take into account the seriousness of the prejudice suffered by the person concerned and also the circumstances under which the violation of that person’s rights occurred.