Violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for correspondence;Respect for private life);No violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for correspondence;Respect for private life);Violation of Article 13 - Right to an effective remedy (Article 13 - Effective remedy);No violation of Article 13 - Right to an effective remedy (Article 13 - Effective remedy);Non-pecuniary damage - award

András Sajó;Françoise Tulkens;Helen Keller;Isabelle Berro-Lefèvre;Paulo Pinto De Albuquerque

The applicant was born in 1956 and lives in Vilnius.

At the relevant time, the applicant was a founding member of the Liberal Democrats political party, led by Mr Rolandas Paksas. The applicant was also a member of the Vilnius City Municipal Council.

On 16 March 2003 the State Security Department (“the SSD”) intercepted a telephone conversation between the applicant and Jurij Borisov (“J.B.”) (see Borisov v. Lithuania, no. 9958/04, § 15, 14 June 2011), a major contributor to the electoral campaign of the State President, Rolandas Paksas. The tapping of J.B.’s telephone had been authorised by a court. The conversation was as follows:

“Jurij Borisov (J.B.): So. He [the State President R. Paksas] said on television that Borisov isn’t on the list of his advisers and won’t be included.

Algirdas Drakšas (A.D.): Won’t be on the list of his advisers? But I don’t understand. After all, you always said that [he would].

J.B.: A week ago he and I agreed that from Monday I would be on the list [of advisers to the President].

A.D.: I don’t know anything about this.

J.B.: I am telling you – that was his promise. So he has been stressed for two days, because he has already betrayed me. You understand? He has already sold me. And he is stressed, he is afraid to meet. So I have told him, if by Monday he doesn’t fulfil any of his promises - not a single one for what I have done for him - I will begin to recover my money. I will have to go public, do you understand?...

A.D.: I don’t know. I don’t know. I haven’t heard that, I don’t know.

J.B.: Algis, I have recorded everything on tape, the tape will be ready tomorrow.

A.D.: Damn, I don’t know that. I don’t know that. I know that you declared that you would act differently, that you wouldn’t go to the President’s Office because the salary is low there, that you wouldn’t manage to earn a living there. I know only that.

J.B.: That was in the press. At his [the State President’s] request: “Jura, tell that in the meantime you won’t go [to work at the President’s Office]. And on Monday you will be [working] there”....That’s why he has already been suffering for two days, because he has lied on television. And I don’t know how he is going to walk away from this... Death to him as to the President. Tomorrow this lie will surface... That’s why he is restless...

A.D.: I don’t know these facts, how can I give you an answer.

J.B.: Algis, I am not asking you for an answer, I am just emotional, because I don’t know ... how I should go and talk to him. Because I have to go public and say everything now. Rolandas is such-and-such... We have agreed with him... And now: he went to Dalia [D.K.G. - adviser to the President], and [the President] has said that Borisov won’t harass you. I don’t know what she has told him. So the President, you understand, is a corpse already.

A.D.: If it is easier for you, but you’re behaving improperly.

J.B.: Algis, I haven’t done anything yet, so far I’ve done nothing. But he has sold me publicly already.

A.D.: Calm down. He hasn’t sold you publicly; he is not that kind of person ... I don’t know that you are not going to be an adviser. That wasn’t discussed openly, there was no such idea, I haven’t heard about that. He hasn’t sold you publicly; I can’t imagine he would do that. He is not like that.

J.B.: You see. Such is the fact...

A.D.: Such fact can’t [be]...

J.B.: Maybe you want to see the agreement with his signature? I’ll show it [to you] tomorrow.

A.D.: I can only repeat what I’ve said.

J.B.: Okay, Algis, have you called him?

A.D.: What? I have called him, but he isn’t picking up his telephone.”

On 17 September 2003 the SSD applied to the Attorney General’s Office with a request for the applicant’s telephone to be tapped. The request was based on operational information that the applicant maintained contact with J.B. and A.Z., both of whom had contributed to the electoral campaign of Mr Rolandas Paksas. A.Z. worked for a Russian public relations company. Subsequently, J.B. was convicted of having threatened the State President so that the latter would appoint him as an adviser, grant him Lithuanian citizenship and grant other favours, failing which J.B. threatened to disclose certain information which could damage the President’s reputation (see Borisov, cited above, § 30). The monitoring of the applicant’s telecommunications also had the goal of establishing the nature of his relationship with a Russian citizen, V.F., who, according to the SSD, had been expelled from Spain in 1982 for spying for the former USSR.

Later that day the Attorney General requested the Vilnius Regional Court to authorise the tapping of the applicant’s telephone. The court order was classified as secret, and was not disclosed to the applicant. The Attorney General based his request on the applicant’s “possible participation in smuggling strategic goods and other crimes”. The court granted the request, authorising the measure for a period of three months. The court order reads:

“on the basis of the material in the case file of the operation it is reasonable to [tap the applicant’s telephone] in order to verify his involvement in the criminal activities described in the request: the information in the case file (the operative information and other data) confirms that [the applicant] could be linked to criminal acts which qualify as serious crimes; in order to establish all the relevant circumstances other operative measures had already been [exhausted], therefore a supplementary investigative measure [tapping of the applicant’s telephone] is to be authorised, pursuant to the rules of the Law on Operational Activities”.

As came to light later on, the request by the SSD was also based on the applicant’s allegedly unlawful involvement in attempts to take over the shares of the road-building company “Žemaitijos keliai”.

On 1 November 2003 the SSD declassified the recording of the telephone conversation of 16 March 2003 between the applicant and J.B. It sent the recording to the Attorney General’s Office. The following day, the latter began a pre-trial investigation into threats to the State President.

On 2 November 2003 the recording of the telephone conversation of 16 March 2003 between the applicant and J.B. was aired by the State-run and private national television channels LTV and LNK. The SSD denied any involvement in leaking the conversation to the media.

Having intercepted the applicant’s telephone conversations between 18 September and 11 November, the SSD obtained recordings of his communications with the State President, the President’s advisers and the applicant’s business partners. It can be seen from the transcripts of those recordings that the SSD intercepted five conversations between the applicant and the head of State. At least one of these telephone calls was from the State President to the applicant. The transcripts also reveal that the conversations between the applicant and his interlocutors contained some swearing.

On 11 November 2003 the Attorney General wrote to the director of the SSD. The Attorney General noted that on 10 and 11 November the media had made known the fact that the SSD had obtained recordings of telephone conversations between the applicant and the State President. Such recordings, if they existed, were unlawful, given that Article 6 § 3 of the Law on Operational Activities prohibited any operational activities in respect of the head of State (see “Relevant domestic law” below). The SSD was ordered to make sure that the recordings were not made public and were destroyed the same day.

The letter of the Attorney General does not specify whether by that time the content of the applicant’s conversations with the State President had already been disclosed to the public.

The letter also read that “noting the illegal practice, which began on 30 October 2003, of transfer and making public operational information, the SSD is ordered to adhere strictly to the requirements of the Law on Operational Activities and the Law on State Secrets, as well as those concerning Criminal Procedure”. On this point the Attorney General emphasised that classified information obtained during operational activities, as well as data concerning a person’s private life and/or demeaning to his or her honour or dignity should not be disclosed. Furthermore, once the operational investigation had been terminated and where the information concerning the target of the surveillance activities had not proved to be true, such information had to be destroyed. Lastly, the information collected during a pre-trial investigation was to remain confidential, unless a prosecutor decided otherwise.

On 12 November 2003 the applicant lodged a complaint with the Attorney General, alleging that the tapping of his telephone had been unlawful. He also complained that his telephone call with the State President had been intercepted. The applicant alleged a breach of privacy.

On 20 November 2003 the Attorney General requested information from the SSD regarding the leak.

On 11 December 2003 the SSD informed the Attorney General that neither recordings nor transcripts of the applicant’s conversation with J.B. of 16 March 2003 had been given to the media. It noted that on 1 November 2003 the transcripts of that recording had been declassified and submitted to the Attorney General’s Office for the purpose of a pre-trial investigation.

By a letter of 15 December 2003, the Attorney General requested the SSD to conduct an inquiry into the leak, as a result of which the applicant’s and J.B.’s telephone conversation of 16 March 2003 had been aired on television (paragraph 12 above).

On 15 December 2003 the Attorney General’s Office informed the applicant that his telephone conversations had been monitored in accordance with the law. The applicant’s conversations with the State President had been recorded while the SSD had been tapping the applicant’s telephone, and not that of the President. The operational investigation in respect of the applicant had been terminated on 11 November 2003. The applicant was advised to address the SSD in order to obtain the information held on him. To the extent that the applicant complained about the damage he had allegedly sustained by the disclosure of his telephone conversation [of 16 March 2003] to the media, he was advised to bring an action before the civil courts.

On 16 December 2003 the SSD wrote to the Attorney General’s Office that the information gathered pointed to the conclusion that the applicant and other persons were attempting to unlawfully acquire the shares of the “Žemaitijos keliai” company. The behaviour of the applicant and his interlocutors could be characterised as extortion of property.

In February 2004 the applicant attempted to challenge the lawfulness of the court order authorising the tapping of his telephone. On 18 February 2004 the Vilnius Regional Court informed the applicant by letter that the law did not provide for an appeal against court orders of that type.

The applicant also wrote to the SSD, requesting it to disclose the results of its inquiry into the leak. He explained that such information was necessary in order to enable him to prepare a civil action for damages. The applicant also requested access to the information on him held by the SSD.

On 9 March 2004 the SSD replied that the information recorded by the SSD had been declassified and transferred to the prosecutors as evidence in two sets of criminal proceedings unrelated to the applicant (namely, the proceedings against J.B. for blackmailing the State President and the proceedings relating to the influence of civil servants in the management decisions of the “Žemaitijos keliai” company). The applicant was advised that he could obtain access to that evidence with a prosecutor’s authorisation.

On 10 March 2004 the applicant lodged a complaint with the Court of Appeal, again challenging the court order of 17 September 2003. He argued that there had been no lawful grounds for the tapping, and that his rights under Article 8 of the Convention had been breached. The applicant was also critical of the fact that the SSD had intercepted and made public his telephone conversations with the State President and J.B. He further complained about the absence of a domestic remedy against the court order authorising telephone tapping, alleging a violation of Article 13.

By a letter of 6 April 2004, the President of the Court of Appeal returned to the applicant his complaint without examination. The President stressed that to grant a person the right of access to court orders authorising operational measures and to allow him to challenge such court orders would deprive the secret investigative actions of their meaning. He also noted that Article 8 of the Convention did not prohibit secret investigative measures as such, provided that the interference involved was necessary in the interests of national security or for the prevention of crime. Well-reasoned court orders were to guarantee that the investigating authorities acted within the law.

On 15 March 2004 the SSD informed the Attorney General that in September and October 2003 the applicant and a Russian citizen, V.F., had organised visits by Lithuanian civil servants to the Russian Federation and visits by Russian officials to Lithuania. The applicant had acted in cooperation with the advisers to the Lithuanian President. The applicant also had business dealings with V.F. According to the SSD, the applicant had ceased to organise such visits once the Lithuanian media had made public the SSD report “On negative tendencies posing a threat to national security”. The SSD also reiterated that the above facts could be linked to [unlawful] attempts to take over the shares of the “Žemaitijos keliai” company. The SSD asked the Attorney General to verify the information by way of criminal proceedings.

On 15 March 2004 the recordings and transcripts of the applicant’s telephone conversations with Russian businessman V.F., J.B. and the State President were deposited with the registry of the Constitutional Court, which was about to hear the State President’s impeachment case. The prosecutors did not impose any restrictions on the disclosure of those recordings.

At the hearing of the Constitutional Court on 19 March 2004, some of the recordings were played. Given that the hearing was public and directly broadcast by national television, the conversations were aired.

On 22 March 2004 the applicant requested the opening of a criminal investigation in relation to the disclosure of the contents of his conversations at the Constitutional Court’s hearing. He argued that after the disclosure “none of his foreign partners would want to do business with [him] or [his] company”.

On 25 March 2004 the prosecutors refused to open criminal proceedings. They noted that the information had been disclosed during a public hearing at the Constitutional Court and in accordance with domestic law. A further complaint by the applicant was dismissed by the Attorney General, who observed that disclosure of the applicant’s conversations during the proceedings in the Constitutional Court was a normal part of the judicial process. Furthermore, the disclosed materials contained no information about the applicant’s private life. By a final decision of 7 May 2004 the Vilnius City Second District Court upheld the prosecutors’ decisions.

On 31 March 2004 the Constitutional Court found that the State President had committed gross violations of the Constitution and a breach of his constitutional oath on account of, inter alia, exploiting his official status to influence decisions by the “Žemaitijos keliai” company concerning the transfer of shares with a view to defending the property interests of certain private individuals close to him. He was also found guilty of having knowingly hinted to J.B. that the law-enforcement institutions were investigating him and tapping his telephone conversations (see Paksas v. Lithuania [GC], no. 34932/04, § 27, 6 January 2011).

The applicant lodged an administrative complaint against the refusal by the SSD to grant him access to the recordings of his telephone conversations.

On 21 May 2004 the Vilnius Regional Administrative Court dismissed the applicant’s action as unsubstantiated. The court accepted that pursuant to the domestic legislation a person had a right to obtain information of a private nature held on him by the State institutions (see paragraphs 39 and 40 below). Nonetheless, the information the applicant sought access to had much wider implications; therefore it could not be regarded as concerning his private life. Furthermore, that information had in the meantime been given to the prosecutors as evidence in criminal proceedings (paragraph 24 above). Disclosure of such information was explicitly prohibited by Article 177 of the Code of Criminal Procedure. The court also noted that citizens’ rights, as established in [Article 25 § 5 of] the Lithuanian Constitution, could be restricted only when this was provided for by law, necessary in a democratic society and with the aim of protecting rights and freedoms of others. In the applicant’s case, such a restriction had been established by law. There was no proof that by refusing the applicant access to the transcripts of his telephone conversations the SSD had acted arbitrarily. It followed that the applicant’s right to receive information had not been infringed.

On 12 October 2004 the Supreme Administrative Court dismissed the applicant’s appeal, upholding the reasoning of the lower court.

In reply to an inquiry by the applicant’s lawyer, on 25 May 2005 the Deputy Attorney General wrote that to that day the SSD had not informed the prosecutors about the results of an internal investigation into the circumstances how the media had got hold of the applicant’s telephone conversation with J.B. (paragraphs 12 and 19 above).

By a letter of 15 July 2005, the SSD informed the applicant that, given that there was no ground for an internal investigation into the lawfulness and reasonableness of the tapping of his phone, as sanctioned by the court on 17 September 2003, no inquiry had ever taken place at the level of the SSD.

The Law on Operational Activities (Operatyvinės veiklos įstatymas), adopted by the Lithuanian Parliament and published in the State Gazette (Valstybės žinios) on 28 June 2002, in force at the relevant time, provided:

“1. Operational activities are overt and covert intelligence activities by operational entities conducted in accordance with the procedure established by this Law.

Targets of operational activities are crimes being planned, being perpetrated, or already committed, persons engaged in planning or committing crimes or persons who have committed a crime, vigorous actions of these individuals in neutralising operational activities or by infiltrating law enforcement, national defence, or other government and administrative institutions, and activities of foreign intelligence services and other persons and events linked with State security matters.”

“The tasks of operational activities shall be as follows:

1) crime prevention;

2) solving crimes and establishing the identity of the individuals who are planning, are engaged in or have already committed criminal acts;

3) protection of individuals from criminal influence;

5) actions posing a threat to the constitutional order, its independence, economic safety of the State, or other important interests of national security (...);

7) protection of State secrets;

8) investigation of the activities of the intelligence services of other States;

9) ensuring the safety of the entities of operational activities.”

The individual and citizens’ rights and freedoms may not be violated in the course of operational activities. Individual restrictions on these rights and freedoms shall be temporary and may be applied only in accordance with the procedure established by laws, striving to defend another person’s rights and freedoms, property and the security of the State and society (...).

It shall be prohibited to apply operational activities to the President of the Republic.

In case the rights and freedoms of an individual and citizens have been violated, the entities of operational activities must restore the rights which have been violated and compensate the damage according to the procedure established by legal acts.

The classified information obtained in the course of operational activities, as well as that about a person’s personal and family life and information demeaning his or her honour or dignity may not be disclosed, with the exception of ... situations stipulated in Article 17 of this Law.

Within three months of the completion of the operational investigation and provided that the operational information about the target of the operational activities did not prove to be true, information about a person’s private life must be destroyed (...).

A person who considers that the activities of the entities of operational activities have violated his rights and freedoms may appeal against those actions to the chief of the entity of operational activities, a prosecutor or a court.”

“An operational investigation shall be conducted, when:

1) information is held with respect to a serious crime being planned (...);

2) information is available regarding the activities of the special services of other States;

6) protection of State secrets is being implemented;

7) information is available concerning actions which are endangering the constitutional system of the State, its independence, economic security ... or other important interests of national security.”

“1. The covert monitoring of ... telegraph and other communications and the use of technical equipment in accordance with special procedure shall be authorised by the chairman of a regional court or the chairman of the criminal cases division of that court, on the basis of a reasoned recommendation by the Attorney General, the Assistant Attorney General, or ... a recommendation by the chief prosecutor of the regional prosecutor’s office or ... assistant regional chief prosecutor, that recommendation being based on the information submitted by the chiefs of the entities of operational activities or their authorised deputy chiefs.

The implementation of actions recommended for aims of conspiracy concerning the actions indicated in paragraph one of this Article, may be authorised by any district court.

The request for covert monitoring shall indicate:

1) the name, surname and position of the officer who submitted the request;

2) a description of the target or the name and surname of the person in respect of whom operations shall be conducted;

3) facts (grounds) warranting a request to employ the operational activities;

6) an estimate how long the operational measures will be applied;

7) the aim of the investigation.

The covert monitoring ... and the use of technical equipment according to special procedure shall be authorised for no longer than three months. This period may be extended (...).”

“1. Classified operational information may be declassified according to the procedure established by laws and used as evidence in a criminal case (...).

Classified operational information may be used for other purposes in cases determined by the laws (...).”

The Code of Criminal Procedure reads:

“1. Information about a pre-trial investigation shall not be made public. It may be made public only subject to a prosecutor’s authorisation and only to such an extent as is determined as permissible (...).”

Article 25 § 5 of the Lithuanian Constitution stipulates that citizens have the right to receive, according to the procedure established by law, any information concerning them which is held by the State institutions.

The Law on the Right to Obtain Information from State and Local Authorities (Teisės gauti informaciją iš valstybės ir savivaldybių įstaigų įstatymas), in force as of 1 June 2000, provided that a person had a right to obtain information of a private nature held on him by the authorities (Article 7 § 1). Nonetheless, the authorities could refuse to reveal information, the disclosure of which could damage the interests of State security, defence, foreign policy, or hinder a criminal investigation. A refusal to disclose information had to be necessary in a democratic society and based on reasons more weighty than a person’s right to obtain information. The authorities’ refusal to reveal information held on a person could be appealed against to the administrative courts (Article 13).


CASE OF CEVDET AND HATİCE YILMAZ v. TURKEY

Violation of P1-1;Pecuniary damage - financial award;Costs and expenses award - Convention proceedings

The applicants live in Izmir.

On 7 June 1996 the General Directorate of National Roads and Highways expropriated plots of land belonging to the applicants. A committee of experts assessed the value of the plots of land and the relevant amount was paid to the applicants when the expropriation took place.

Following the applicants’ request for increased compensation, on 22 June 1998 the Bornova Civil Court of First-instance awarded them additional compensation plus interest at the statutory rate.

On 8 December 1998 the Court of Cassation quashed the judgment.

On 27 July 1999 the Bornova Civil Court of First-instance awarded the applicants additional compensation plus interest at the statutory rate.

On 12 October 1999 the Court of Cassation quashed the judgment.

On 15 May 2000 the Bornova Civil Court of First-instance awarded the applicants additional compensation of 9,976,332,312 Turkish liras (TRL) plus interest at the statutory rate applicable at the date of the court’s decision, running from 26 February 1998, the date on which the title deed to the land had been transferred to the General Directorate of National Roads and Highways in the land registry.

On 11 September 2000 the Court of Cassation upheld the judgment.

On 13 August 2001 the General Directorate of National Roads and Highways paid the applicants TRL 28,686,390,000.

The relevant domestic law and practice are set out in the Akkuş v. Turkey (judgment of 9 July 1997, Reports of Judgments and Decisions 1997-IV).


Remainder inadmissible;Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);Violation of Article 5 - Right to liberty and security (Article 5-3 - Length of pre-trial detention;Reasonableness of pre-trial detention);Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing);Violation of Article 6 - Right to a fair trial (Article 6-3-c - Defence through legal assistance);Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Reasonable time);Pecuniary damage - claim dismissed;Non-pecuniary damage - claim dismissed

Angelika Nußberger;Dean Spielmann;Elisabet Fura;Karel Jungwiert;Mark Villiger;Mykhaylo Buromenskiy

The applicant was born in 1966 and lives in Simferopol.

On 2 August 1999 the applicant, a police officer at the material time, was arrested on suspicion of membership of a criminal association run by S. P., another police officer, and participation in armed robberies. On the same date his house was allegedly searched without a warrant.

On 3 August 1999 the applicant signed a waiver of his right to legal representation. On the same date he confessed to having participated in group assaults on families I. and S. in August 1998 upon S. P.’s invitation. He also noted that he believed that the families were visited for collection of unpaid business debts in favour of third parties. According to the applicant, he notified the investigator that he was unable to see the record of his questioning as he had been suffering from eye cataracts.

On 5 August 1999 the applicant was indicted. He signed the statement of indictment, having noted that he fully acknowledged his guilt and requested to be released from detention, since he needed in-patient treatment on account of his skin disease and eye cataracts, as well as surgery for the latter.

On the same date the applicant obtained access to an advocate. It is unclear, however, whether the advocate was present during the applicant’s interrogation and indictment on that date.

Also on the same date the applicant was remanded in custody as a preventive measure. On various occasions the applicant appealed against this measure, in particular, referring to an urgent need to have eye surgery and in-patient treatment for other medical conditions. However his requests were rejected.

During the pre-trial investigation, the authorities questioned some 120 witnesses concerning over thirty episodes of various crimes, carried out some twenty reconstitutions of the crime scenes and ordered numerous expert assessments.

On 20 July 2000 the investigation was completed and the applicant, along with eighteen other individuals charged for being involved in a criminal association membership, was committed for trial to the Supreme Court of the Autonomous Republic of the Crimea (subsequently renamed the Court of Appeal of the Autonomous Republic of the Crimea (hereafter “the Court of the ARC”).

On 4 May 2001, following familiarisation of the defendants with the case-file materials and completion of other procedural formalities, the Court of the ARC held a preliminary hearing in the case and scheduled the trial for 5 June 2001.

On 29 June 2001 the newspaper Flag Rodiny published an article entitled “Changelings with police epaulettes”, featuring in particular an interview with Sh., the judge presiding over the applicant’s case. The judge was quoted as saying that she was appalled by the audacious crimes committed by the defendants and their challenging conduct at court hearings.

Having held some eighteen hearings between June and December 2001, the Court of the ARC adjourned the proceedings in connection with one of the defendants’ request to ensure recording of the hearings with technical equipment which was unavailable.

On 15 May 2002 the Court of the ARC resumed consideration of the case and held some 150 hearings in the period ending 22 May 2004.

The applicant alleged that on various occasions he and his co-accused had requested the removal of Judge Sh. from the proceedings on various grounds, including lack of impartiality; however, their requests had been rejected. The applicant did not provide copies of his requests for the removal of Judge Sh. or the decisions taken following their consideration.

The Government alleged that the applicant had never lodged any requests for the removal of the judge during the trial. Such requests had been lodged only by one of his co-defendants, A. K., who had also requested on 29 January 2003 that the above newspaper article be added to the case-file. Those requests had been dismissed as unsubstantiated.

During the trial, the applicant denied any encounter with the I. family. As regards the S. family, he acknowledged having visited them along with three other defendants to collect the debt owed to a third party at S. P.’s request. He contended that he had been in the kitchen while his companions had spoken with the hosts, that the hostess had given them money voluntarily, and that he had been unaware of any coercion taking place. He further retracted his confessions given during the pre-trial investigation in the advocate’s absence, alleging that at the material time he had been practically blind and unable to read the documents he was signing. He had signed the waiver of his right to be represented by an advocate under pressure from the investigator, who promised that in exchange for his cooperation he would be promptly released from custody to enable him to seek medical treatment.

On 17 November 2004 the Court of the ARC pronounced its judgment, the text of which was presented on over two hundred pages and concerned over thirty counts of various crimes, including robberies, a murder and assaults committed by nineteen defendants collectively and individually against numerous victims. By this judgment, the applicant was convicted of a criminal association membership and two counts of armed robbery (against the families I. and S.). By way of evidence of his participation in the robberies, the court referred, primarily, to the confessional testimonies of his co-defendants, identifying him as their accomplice, and the testimonies of the members of the assaulted families given during pre-trial investigation and trial, in which they alleged to have recognised the applicant. The applicant’s confessional statements were not referred to by the court in the text of its judgment. The court sentenced the applicant to seven years’ imprisonment, banned him from occupying certain posts for a three-year term and ordered the confiscation of his property.

In December 2004 and January 2005 the applicant, his lawyer, and his mother acting as his defence, submitted appeals in cassation against the applicant’s conviction. They presented the same version of events as proposed by the applicant during his trial and contended that the court had misinterpreted facts and wrongly applied the law. They challenged the testimonies given by the applicant’s co-defendants, alleging they had been given under duress, and testimonies given by the victims as ambiguous and unreliable. They further contended that all the evidence collected from the applicant in violation of his right to be legally represented should be excluded from the body of evidence. The appellants noted that immediately upon his arrest the applicant had informed the investigative authorities that he was almost blind and was unable to read the documents he was signing. The waiver of his right to be legally represented had not been genuine. On the contrary, the video-recording of the applicant’s initial questioning showed that he requested the assistance of a lawyer, referring to his poor health and vulnerable state. Lastly, the appellants complained that the sentence imposed on the applicant was disproportionately severe, particular regard being had to his state of health and lengthy pre-trial detention in conditions incompatible with it.

On 12 December 2005 the applicant’s mother drafted a supplement to the above-mentioned appeals, in which she complained, inter alia, that Judge Sh. had not been impartial, since, as it transpires from her interview to the Flag Rodiny newspaper in June 2001, she had had a preconceived notion of the applicant’s guilt from the very beginning of the trial. The copy of this supplement contained in the case file bears no stamps or other evidence that it was admitted by the court for consideration or at least lodged with it.

On 16 March 2006 the Supreme Court of Ukraine dismissed the applicant’s and his representatives’ appeals in cassation, having found that the trial court had correctly assessed the evidence and applied the law and that there was no appearance of any procedural violations which could have affected the outcome of the case.

Prior to his arrest, the applicant had been diagnosed as suffering from immature cataracts in both eyes and neurodermatitis.

On 2 August 1999 the applicant was placed in the Saky Temporary Detention Centre (“the ITT”), where, according to him, he was held in inhuman conditions (overcrowding, poor sanitary arrangements and risk of pressure from inmates because he was a policeman).

On 9 August 1999 the applicant was transferred to the Simferopol no. 15 Pre-trial Detention Centre (“the SIZO”).

Upon his arrival, the applicant was examined by the SIZO medical staff and placed under dispensary supervision for immature aggravated cataracts in both eyes, diffused eczema, and chronic gastritis.

On 28 February 2000 the applicant informed the Prosecutor of the ARC that he had started a hunger strike in protest against being denied the medical assistance he needed.

On 27 March 2000 the applicant was examined by the medical committee of the ARC Semashko Hospital, which concluded that at the material time he was suffering from scabies, eczema, chronic prostatitis, nephroptosis, gastritis and reactive hepatitis. It further found that the applicant needed in-patient treatment in a specialised facility for his skin diseases and that his cataracts were mature and needed to be surgically removed after treatment of inflammatory processes.

On 5 July 2001 another medical committee determined that the applicant was still suffering from eczema, gastritis and mature cataracts, for which he needed surgery.

On 16 July 2001 the applicant was further examined by the head ophthalmologist of the ARC and it was recommended that eye surgery be performed promptly to prevent potential aggravations such as full loss of eyesight and eruption of the eyeballs. The applicant was further advised that in order for the surgery to be effective he needed first to obtain therapeutic inpatient treatment and be supervised by an ophthalmologist for up to two months after the surgery.

On 17 August 2001 the Court of the ARC adjourned hearings to allow for the applicant’s eye treatment.

On the same day the SIZO administration requested the Court of the ARC to consider releasing the applicant from custody, because it was impossible to provide the therapeutic treatment he needed in the SIZO. However, this request was not granted.

On 3 September 2001 the applicant was taken to the eye clinic for surgery. However, having allegedly been advised by medical professionals that the success of the surgery was at risk because of his untreated skin inflammations, he refused to be operated on and returned to the SIZO.

On 2 September 2005 the SIZO administration petitioned for the applicant’s release from detention, referring to the lack of necessary facilities in the SIZO for the applicant’s proper treatment and risk of permanent loss of eyesight.

On 9 September 2005 the applicant was assigned the first (most advanced) category of invalidity on account of complete loss of eyesight.

On 2 August 2006 the applicant was released from custody, as he had already served his sentence.

The relevant provisions of Articles 59 and 63 of the Constitution of Ukraine concerning the right to legal assistance and the right not to incriminate oneself can be found in the judgment of 19 February 2009 in the case of Shabelnik v. Ukraine (no. 16404/03, § 25).

The relevant provisions of the Code of Criminal Procedure of Ukraine, as worded at the material time, read as follows:

“The court, in the event there are grounds for it, shall take a separate ruling (окрема ухвала), in which it shall draw the attention of the State bodies, public organisations or officials to the breach of the law established in the facts of case ...

A separate ruling may also be taken where the court reveals breaches of rights of citizens and other breaches of the law that took place during inquiry, pre-trial investigation or consideration of the case by a lower court.

The separate ruling must be acted upon as necessary and the court which issued the ruling notified of the results within a month.

In the event that an official leaves the separate ruling without consideration, the measures laid down in Articles 254 - 257 of the Code of Administrative Offences of Ukraine shall be applied.

“A suspect, an accused and a defendant in court may at any moment waive [their right to be represented] ...

The waiver may not be accepted: ...

2) in cases concerning crimes by persons who, on account of their physical or mental disabilities (muteness, deafness, blindness and other), cannot exercise their right to defence by themselves;

Articles 246, 281 and 396 of the Code provided that if the courts revealed such breaches of the law by the investigative authorities during pre-trial investigation, which could not be remedied at the trial stage, they were to remit the case back to the investigative authorities with instruction to address those breaches.

The relevant provisions of the Code concerning preventive measures pending trial are quoted in the judgment in the case of Yeloyev v. Ukraine, no. 17283/02, § 35, 6 November 2008.

The relevant parts of the above ruling read as follows:

“... 19. Article 59 of the Constitution of Ukraine provides that everyone has the right to defend himself from accusation and to obtain legal assistance. Therefore, examining a criminal case, the court must, in the circumstances provided by law, ensure the defendant’s right to defence.

... It shall be borne in mind that under Article 62 of the Constitution an accusation may not be based on presumptions or on evidence obtained in an unlawful way. Evidence should be considered as having been obtained unlawfully when, for example, it has been collected and recorded in breach of the human and citizens’ rights guaranteed by the Constitution of Ukraine, or of ... the law on criminal procedure ...”

The relevant international materials with respect to healthcare arrangements in detention facilities may be found in the judgment in the case of Ukhan v. Ukraine (no. 30628/02, § 50, 18 December 2008).


Preliminary objection dismissed (Article 35-1 - Effective domestic remedy);Remainder inadmissible;Violation of Article 6+6-3-c - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing;Public hearing;Article 6-3-c - Defence in person) (Article 6-3-c - Defence in person;Article 6 - Right to a fair trial)

The applicant was born in 1968 and lives in Budapest.

On 18 March 2003 the Eger District Public Prosecutor’s Office indicted the applicant and two other individuals for aggravated extortion. The applicant was assisted by defence counsel of his choice. After hearings held on 16 June and 8 October, on 13 October 2003 the District Court found the applicant guilty as charged and sentenced him to 3½ years’ imprisonment. The court relied on evidence given by the victim and several witnesses.

The prosecution appealed to have the sentence increased, while the applicant appealed to be acquitted or to have his sentence reduced. He also proposed that two further witnesses be heard.

At deliberations held in camera on 20 February 2004, the Heves County Regional Court upheld the applicant’s conviction, while increasing his sentence to 4 years’ imprisonment. Neither the applicant nor his lawyer was present. In its reasoning, the court did not deal with the proposal to hear two more witnesses.

“(1) In the Republic of Hungary, everyone is equal before the law, and has the right to have any criminal charge against him or his civil rights and obligations determined in a fair and public trial by an independent and impartial court established by law. ...

(3) Individuals subject to criminal proceedings are entitled to the right of defence at all stages of the proceedings. ...”

“(3) The Constitutional Court shall order the review of such criminal proceedings as have been finally concluded under unconstitutional legal provisions if the convicted person has not yet been exempted from the legal effects of the conviction – provided that from the nullity of the provision applied in the procedure, the reduction or non-imposition of the punishment or measure, or the exemption from or reduction of [criminal] liability would follow.”

“(1) Any person who claims to have suffered a violation of his rights enshrined in the Constitution on account of the application of an unconstitutional provision and has exhausted all other legal remedies or there are no such remedies available, may submit a constitutional complaint to the Constitutional Court.

(2) A constitutional complaint may be filed in writing within 60 days of the service of the legally binding decision.”

“(3) An appeal may concern questions of fact or law.”

“(2) In order to eliminate the ill-foundedness of the first-instance judgment, evidence may be taken if the findings of fact have not been established or are deficient. Evidence shall be taken ... at a hearing.”

“(1) Within 30 days of receiving the file, the president of the panel in charge shall schedule, in order to deal with an appeal, deliberations in camera (tanácsülés), a public session (nyilvános ülés) or a hearing (tárgyalás). ...”

“(1) The second-instance court shall hold a public session, if – the first-instance judgment being ill-founded – the complete and/or correct findings of fact may be established from the contents of the file or through drawing factual conclusions, or if the defendant must be heard in order to clarify the circumstances relevant for imposing the sentence.

(2) The second-instance court shall summon to the public session those persons whose hearing it deems necessary ...”

“(1) The second-instance court shall notify the public prosecutor and – if they are not summoned – ... the defendant and his lawyer of the public session. ...”

“(2) In order to take evidence, a hearing ... shall be scheduled.”

“(1) Review proceedings may be instituted against a final decision on the merits if: ...

e) the Constitutional Court has ordered (elrendelte) the review of criminal proceedings concluded by a final judgment, provided that the defendant has not yet been exempted from the legal consequences flowing from his conviction, or the execution of the imposed punishment ... has not yet been terminated ... or its enforceability has not yet ceased;

f) the determination of criminal liability or the imposition of a sanction ... has been effected in application of a criminal law provision, whose unconstitutionality has already been established by the Constitutional Court, but the defendant has already been exempted from the legal consequences flowing from his conviction, or the execution of the punishment has already been terminated or its enforceability has ceased ...”

“(1) The Constitutional Court finds that section 360(1) of Act no. XIX of 1998 on the Code of Criminal Procedure is unconstitutional and therefore annuls it as of the date of delivery of this decision. ...

(3) The Constitutional Court finds that Parliament has committed an unconstitutional omission by failing to regulate, in Act no. XIX of 1998 on the Code of Criminal Procedure and in accordance with the requirements of legal certainty and fair trial, the scope of those cases in which the appellate court may hold in camera deliberations. The Constitutional Court invites Parliament to comply with its legislative duties by 31 October 2005.

(4) The Constitutional Court holds that section 360(1) of Act no. XIX of 1998 on the Code of Criminal Procedure was unconstitutional and therefore this provision cannot be applied in the following cases, concluded by a final judgment (jogerősen befejezett ügyeiben nem alkalmazható): ... nos. Bf.671/2003, 29.Bf.8790/2003, 22.Bf.9924/2003, 20.Bf.XI.8046/2004, 25.Bf.VIII.8647/2004, 3.Bf.328/2003, Bf.200/2004, 1.Bf.996/2004, 1.Bf.1905/2004 and 1.Bf.184/2004.”


The applicant, Mr Daniel Mansell, is a United Kingdom national. He was born in 1969 and is in prison in HMP Gartree. He is represented before the Court by a firm of solicitors, Birnberg Peirce & Partners, London.

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

In early June 1996 two elderly brothers living in Leeds were the victims of a violent robbery. On 13 October 1996 assailants again entered their house and the brothers were seriously injured, the eldest brother later dying of his injuries.

In April 1997 the applicant and his own brother, PM, were arrested and charged with robbery of the elderly brothers in early June and on 13 October 1996 and with murder on 13 October 1996.

The prosecution’s case was that the applicant and PM had targeted elderly victims following discussions between PM and KC at a time when PM and KC both were in custody. KC specialised in robberies of elderly and vulnerable persons and had been indicted for a number of such offences to which he had pleaded guilty and in respect of which he had given evidence against his own accomplice. While in custody, KC discussed his offences with PM and gave PM the addresses of victims known not to contact the police. KC also discussed such offences with the applicant, the latter of whom had expressed some interest in committing such crimes himself.

The prosecution relied on the following elements:

(a) KC’s evidence about the applicant’s and PM’s interest in his offences on the elderly and about confessions made to him by PM.

The trial judge referred to KC’s motivation in giving evidence in his summing up as follows:

“I must also give you a warning in relation to [KC]. I have already said something about him. He is an important cog in the prosecution’s wheel. It is alleged that he has something, much to gain. He says not. But you must consider very carefully his evidence and whether he has any motive for untruthfully saying what he is saying in this case. It is not alleged that he has any grudge against [PM] or [the applicant] or any reason adverse to them for shopping them. It is said, well, all supergrasses are strange people: they have motives of their own. It is the sort of argument that can be addressed in any case in which a supergrass does give evidence. There are particular criticisms of [KC] made, as you know, I have rehearsed some of them, by counsel already. You must consider his evidence with very considerable care.”

(b) Ms A’s identification evidence. Ms A, a neighbour of the elderly brothers, had seen two men near her home on 13 October 1996. In her first statement (16 October 1996), she made no reference to the colour of the eyes of either of the men. The surviving elderly brother later described one of the men as having “piercing blue eyes”. In her second statement (20 November 1996), she said that one of the men had “piercing blue eyes”.

Ms A had also attended three identity parades. At the first parade (10 November 1996) a suspect (one J. Foley) was included in the line-up. At the second (5 December 1996) PM was the suspect included in the line-up. At the third (1 May 1997) the applicant was the suspect included in a line-up and he was identified by Ms A.

The defence had been furnished prior to the trial with material including the results of the second and third identity parade. During the trial (at the latest) the parties also knew that there had been three identity parades in total, that material concerning the first of those parades had not been furnished, that Ms A had not formally identified anyone at the second parade and that she had identified the applicant during the third parade. The applicant’s counsel questioned Ms A in detail about the identity parades, but focussed his questioning on the second and third parades. The extract from the transcript is as follows:

“Counsel. Do your remember indicating that a man number eight looked like the person you had seen in the lane?

A. I can’t remember if I picked someone out ‘cause I didn’t think I’d pulled anyone out.

Counsel. This was not the first parade which I think was in the November, from recollection, this is the second parade which is December.

A. No.

Trial Judge. Ah, I think she was under the mistaken impression that you were talking about the first parade. ...

A. No, I didn’t pull anyone out.

Counsel. Not on the first parade this is the second parade.

A. No. I didn’t tell them, no. ...

Trial Judge. You did not pick anyone out?

A. No.”

The applicant’s counsel went on to question her about the third parade. The Court of Appeal later outlined Ms A’s evidence at trial as follows:

“[Ms A] was a neighbour of the brothers and at about 3.00-3.30 p.m. on the day of the second robbery and the murder she went outside her house to check on her children who were walking the dog in the lane. She went to the back of the house when she heard quick heavy footsteps at the bottom of the road. She positioned herself so that she could see down the road. She saw two men walking quickly towards her. They looked odd. They were dressed in winter clothes, it was a warm and sunny day. The man nearest to her stared at her in a way that frightened her. From the moment she first saw them they were in full view. The vision conditions were perfect and she had an unobstructed view of them for the 50-60 yards distance as they walked towards her. She gave meticulous descriptions of the men. The man who had been nearest to her had very scruffy, long, brown hair, a pale complexion and sunken blue eyes. He wore a jumper, jacket and scruffy trainers and gloves. The other man was broader and older, he had dark brown long, straight, scruffy hair, but was not as pale. In evidence she described how she had attended an identification parade on the 1st May to see if she could identify the man with the blue eyes. She picked out [the applicant]. She had been on two parades previously, she said she had been very frightened on those. She had not identified anyone on those occasions.”

The trial judge confirmed, in his summing up, that Ms A had been on two identity parades prior to the parade when she had identified the applicant, that she had been frightened, that there was someone on one of those parades that she thought might have been one of the men she had seen but that she was not sure about that and “so she did not identify anybody.” The trial judge also stated that:

“[Ms A’s] evidence is obviously important, because on the correctness of her identification a lot in this case clearly rests ... you can see that the importance of [Ms A’s] statement cannot be overstated. It is very important evidence indeed”.

(c) The presence of a foot-print in blood in the elderly brothers’ house made by the same make and the same size as the footwear found in the applicant’s garden shed on the day he was arrested and the relevant supporting scientific evidence.

(d) A map of Leeds found in KC’s possession (on it were hand-written notes of KC’s offences and directions to the elderly brothers’ home) together with the applicant’s evasive answers when questioned about the map (which suggested that it was his handwriting). PM’s fingerprints were on the map. A piece of paper upon which the word “Boris” was written had been found at PM’s home: Boris had been a target of KC and his name had been marked in the above-mentioned map of Leeds.

(e) PM’s admission that he had gone to visit another of KC’s targets.

(f) The applicant and PM had given differing accounts in interviews and evidence of their movements on the 11 June and 13 October 1996.

The applicant denied the offences and submitted that the evidence was flawed. He stated that he had never met KC, although he had visited PM in prison. He asserted that KC was unreliable as a man of bad character who had committed a large number of offences himself and who had a self-serving motive having done a deal with the prosecution to obtain early parole. Covert tapes had shown KC to be a liar and the applicant questioned why, if KC was feeding information to the police, the police did not listen into and tape telephone calls. He denied that it was his hand-writing on the map of Leeds and submitted that the addresses of the victims would have been known to other criminals too. There was no forensic evidence pointing to him: his boots were too worn to have left the footprint found. He lied about his movements during police interviews as he did not want to be associated with PM who was being accused of murder. However, he had then quickly given a correct account of his movements on 13 October 1996 to the police which was consistent with his later evidence and the later evidence of PM.

He also took issue with Ms A’s evidence: he had short hair, was tanned after a holiday at the relevant time and had a distinctive tattoo on his neck whereas she had said that he had long hair and was pale-skinned and she had failed to remark a tattoo on his neck although her evidence was that he was wearing a low-necked pullover at the time.

On 27 February 1998, following a trial of 20 days, the applicant and PM were convicted by a majority verdict (of 10-2) of robbery on or about 11 June 1996 and of murder on 13 October 1996 and by a majority verdict (11-1) of robbery on 13 October 1996. The applicant was sentenced to life imprisonment for murder and to 10 years’ imprisonment for the robbery offences, the latter sentence to run concurrently.

The applicant applied for leave to appeal to the Court of Appeal. The matter came before the Court of Appeal on 30 April 1999 when it was adjourned to enable further investigations to be made about the applicant’s first ground of appeal: he alleged that approximately 100,000 pounds sterling (GBP) had been spent by the prosecution or the police in providing a new identity to KC and that that information had not been disclosed during the trial. The allegation had been included in a newspaper article published the day after the applicant had been sentenced and he submitted that this constituted evidence relevant to the credibility of KC which should have been disclosed.

The Court of Appeal considered ex parte a public interest immunity application of the prosecution on this matter. The prosecution was represented by counsel, but the applicant and his representatives were excluded from the hearing. The applicant’s solicitor’s notes of the decision of the Court of Appeal, it appears of December 1999, record as follows:

“We have considered ex parte application on part of Crown [regarding the evidence] given by [KC]. [We have] read letter 3.11.99 from West Yorkshire police and [heard] evidence of 2 policemen, one of very senior rank. We are satisfied that when [KC] came to give evidence in the trial of [PM and the applicant], he had no expectation of reward. Consequently his evidence was not tainted in that regard. [We are] also satisfied having considered letter of 21.4.99 [regarding the] newspaper reports and read [the] newspaper, ... that there is no substance in that account. Arrangements were made long after conviction in February.”

The applicant did not therefore pursue this ground of appeal and the Court of Appeal proceeded to hear the remaining grounds of appeal in the leave application.

The second ground of appeal concerned three items of information which had not been disclosed by the prosecution prior to or during the trial and which had come into the applicant’s possession thereafter. He considered the information highly relevant to the reliability Ms A’s evidence and that it should have been disclosed at trial. The three items were as follows:

(a) A pro-forma information sheet attached to the E-Fit image of one of the men Ms A said she had seen. The E-Fit image had been produced at trial but not the information sheet. The latter document read as follows:

“From Cognitive Interview.

Witness only able to give 60% mark. Treat image with CAUTION – the E-Fit [image] is the best the witness could produce being very vague on facial features – only really saw from a distance.”

The Court of Appeal described the relevant defence submissions as follows:

“There is considerable uncertainty concerning the E-Fit pro-forma [information sheet]. It is far from clear that this document was served on the defence. It is true that there is a reference in the 9th schedule of the unused material dated 29th January 1998 to a “force intelligence report” although on its face the schedule does not specify that this is a separate document in addition to the E-Fit. For the purposes of this application we are prepared to accept that this document did not find its way into the possession of leading counsel then appearing on behalf of this applicant. There is no record of service of this material on the file of the applicant’s solicitor at trial. Moreover, we have little doubt that if the document had been in leading counsel’s possession he would have referred to it in cross-examination.

The significance of this document is that it appears directly to contradict the evidence of [Ms A] that she observed the face of the man she later identified as [the applicant] at close quarters.”

(b) A document called a CID7 was also made by the author of the E-Fit image. The Court of Appeal described the defence submissions on this document as follows:

“There is some doubt as to whether the CPS received the document CID7 and this would explain why it was not served on the defence. It appears to be accepted therefore that there was non-disclosure of this document. The significance of this form [is] that the reference to the eyes of the suspect records a description of “oval light” and: “the witness somewhat vague on facial features and having only had a limited look at suspects faces”.

In [Ms A’s] original statement of 16th October there was no reference to the colour of the suspects eyes. In her statement of 20th November she made specific reference for the first time [to] “piercing blue eyes”. This description proved to be of considerable importance in the prosecution’s case, because of the reference in [the surviving brother’s] statement to the “very piercing blue eyes” of one of his attackers on the earlier occasion in June [1996]. [Defence counsel] submits that no reference was made in cross examination of [Ms A] to the fact that it was only in her later statement that the blue eyes description first emerged. However, he contends, without any material to show that she had previously been asked to describe the eyes, the defence ran the risk of underlining a damaging feature of the case against the applicant. The fact disclosed in the CID7 that, when first asked about the eyes she made no mention of the supposedly striking feature, throws substantial doubt on this important aspect of her evidence. Had it been explored in cross examination at trial it could have formed the basis for a suggestion that she had heard of the reference to blue eyes from another source.”

(c) Documents relating to an identity parade on 10 November 1996. The applicant had discovered after the trial that Ms A had identified a decoy during the first parade on 10 November 1996. The Court of Appeal described the relevant defence submission on this point as follows:

“[Defence counsel] attaches even more significance to the non-disclosure of the [first] identity parade material. The CPS served some of the documentation in relation to the 10th November parade. In their bundle of material served at this hearing the Crown have included additional material from the 10th November parade. From this it appears that from that parade [Ms A] wrongly identified one of the “decoys”. The material part reveals:

“Q: Is the person you saw on Sunday 13 October 1996 on the parade? Note reply A: Yes Number 3.

(i)Q: Was J. Foley identified? A: No.

[Defence counsel] points out that the first identification parades were referred to in evidence but the full significance of the [first] parade could not have been appreciated in the absence of the full documentary evidence. In cross examination, [Ms A] stated: “I didn’t think I had pulled anyone out”. It was then clarified that she was being asked the questions about the December [1996] parade. She then reaffirmed that she had not identified anyone. In the summing up the learned judge directed the jury that [Ms A’s] evidence was that she had not picked anyone out.

It is difficult for this court to determine whether or not counsel at trial were aware of the identification of a decoy. However, we are satisfied that if defence counsel had been aware of this information it would have been of obvious importance. We are prepared to assume for the purposes of this application that this information was not imparted to the defence.”

A photograph of the identification parade on 10 November 1996 was also disclosed to the Court of Appeal and the defence submitted that the man picked out by Ms A looked nothing like the applicant.

In its judgment of 13 December 1999 the Court of Appeal found as follows as regards the failure to disclose these three classes of document concerning Mrs A’s evidence:

“We consider it most unfortunate that these three classes of document were not revealed to the defence, or if they were then that they did not find their way into the possession of counsel. We are equally satisfied that if counsel had had access to this information it would have been deployed in cross examination. We doubt whether the manuscript endorsement on the E-Fit pro-forma would have materially dented [Ms A’s] credibility in the light of the evidence she gave as to the opportunity of observing the men over a distance of some 50–60 yards. This evidence was not inconsistent with her previous statements. Counsel would have had more success with endorsement on the CID7 of the description of the eyes as “oval light”. This may have caused [Ms A] to reflect upon her evidence and whether she wished to retract her testimony. We take a more serious view of the non-disclosure of the [first] identity parade material which clearly shows on its face that far from not identifying anybody [Ms A] made a positive identification of a decoy. This might well have cast considerable doubt on [Ms A’s] positive identification of [the applicant] on the 1st May 1997.”

Even so, we do not consider that these irregularities, on their own, would be such as to render the convictions unsafe if leave to appeal were granted.”

The Court of Appeal then rejected the remaining grounds of appeal which challenged the trial judge’s direction to the jury concerning separate verdicts against PM and the applicant, his alleged failure to warn the jury of the danger of concluding guilt from a rejection of the applicant’s defence, his direction concerning PM’s previous convictions and his direction as to whether the two men whom Ms A had seen were the two robbers. The appeal court also rejected the appellant’s challenge to the trial judge’s failure to discharge the jury following threats made to jurors by third parties. Finally, the Court of Appeal reviewed the case against the appellants as a whole in order to determine whether the matters complained of collectively rendered their convictions unsafe. It noted as follows:

“We are satisfied that they do not and that there was evidence which, if the jury accepted it fully justified each of the convictions. Suffice it to say that the evidence of [KC] was corroborated in several respects. The relevant telephone conversation[s] with [KC] were all proved. [PM] admitted in interview that he had [visited another of KC’s targets]. A piece of paper was found at PM’s home upon which was written the name “Boris”. The [map] had [PM’s] fingerprints upon it [and] the addresses of the brothers and Boris were noted or ringed. Both defendants lied in interview about being with each other in [the applicant’s] car on the afternoon of 13 October. PM set up a false alibi in relation to the 13 October and involved his wife ... and sister-in-law .. in making false statements supporting his false alibi. The identification evidence of [Ms A] including her positive identification of [the applicant] on 1 May 1997. The finding of a boot print in blood which corresponded to a size 8 “Kicker” boot. [The applicant] had such a boot and wore it at about the material time. In evidence both defendants accepted that they had been together on 11 June 1996 and on 13 October 1996”.

The Court of Appeal concluded therefore that, in light of the strength of the case against PM and the applicant, there was no realistic prospect of a successful appeal. Their applications for leave to appeal were rejected.

The Court refers to the outline of the domestic law and practice concerning the prosecution’s duty of disclosure of material to the defence contained in Rowe and Davis v. the United Kingdom [GC], no. 28901/95, ECHR 2000-II.


Violation of Art. 6-1;Remainder inadmissible;Non-pecuniary damage - financial award;Costs and expenses (domestic proceedings) - claim dismissed;Costs and expenses partial award - Convention proceedings

The applicant was born in 1972 and lives in Nicosia.

The facts of the case, as submitted by the parties and as derived from the minutes of the proceedings, may be summarised as follows.

On 14 August 1997 the applicant married a Romanian citizen. On 28 September 1998 he filed a petition for divorce (no. 382/98) with the Family Court of Nicosia.

On 16 October 1998 the applicant filed an ex parte application for leave to publish the divorce petition in an English daily newspaper. Leave was granted by the court on 19 October 1998.

On 24 November 1998 the court fixed the case for mention for 21 December 1998 and instructed the counsel of the applicant's former wife (hereinafter “the respondent”) to file her defence by that date. This was filed on 2 March 1999.

On 15 December 1999 the respondent filed an application raising certain preliminary points of law to be tried before the main petition. The application was set for 21 December 1999 and then for 31 January 2000. In the meantime, on 27 January 2000, the applicant filed an objection to the application.

From 31 January 2000 until 23 October 2000 both the main divorce and interim proceedings were adjourned eight times. Two of these adjournments were by the court itself: from 15 May 2000 until 22 May 2000 and from 23 September 2000 until 23 October 2000. It appears that the remaining adjournments were by the parties' mutual agreement.

During the above period, on 21 July 2000, a deportation order was issued against the respondent by the immigration authorities. On 4 September 2000 the respondent filed an administrative recourse before the Supreme Court (first instance administrative jurisdiction) challenging the order, requesting an interim application for the suspension of the deportation order in order to be able to attend the divorce proceedings and testify before the Family Court and a declaration recognising her right to have her residence permit renewed.

On 23 October 2000 the respondent withdrew her application of 15 December 1999 and upon agreement by both parties the hearing of the divorce petition was adjourned until 19 December 2000.

The hearing of the petition commenced on 19 December 2000 and was completed on 13 March 2001. Three hearing sessions were held with one adjournment at the request of the respondent's lawyer.

In the meantime, on 5 March 2001, the Supreme Court delivered an interlocutory judgment and rejected the respondent's recourse. The Supreme Court noted that the respondent's residence permit had expired on 7 September 1998 and that since then she had been staying in Cyprus without a permit. Nonetheless, she had not been deported pending the proceedings in another recourse she had filed against the administrative authorities' decision not to grant her another permit. This recourse had been rejected by the Supreme Court on 5 July 2000 and this was the reason that the deportation order of 21 July 2000 had been issued. Furthermore, the Supreme Court observed that to grant the respondent her application for an interim order for the suspension of the deportation order would in essence result in the grant of permission to stay, which was outside the competence of the Court. The right of any person, whether Cypriot or alien, to be present at proceedings before a court, was not related to the question of permission to stay. The applicant, in her recourse, had linked the two, but the need for her to be present at the trial before the Family Court would be regulated by the requirements of the trial and not according to a general obligation of the Republic to grant her permission to stay in the Republic for the duration of the trial, as she asserted.

The respondent was deported on 7 March 2001.

On 13 March 2001 the Nicosia Family Court issued an ex-tempore decision granting the applicant's divorce petition.

On 23 April 2001, the applicant's former wife who had been deported (hereinafter “the appellant”), filed an appeal (no. 137/01) before the Supreme Court (Family Court Appeal Jurisdiction). The minutes of the first instance proceedings were received by the Supreme Court on 23 July 2001.

On 3 October 2001 the applicant filed an application for security of costs. The court fixed this application for hearing for 9 November 2001. On the latter date, the court fixed the application for further directions for 5 December 2001 and instructed the appellant to file her written objection by the above date. This was filed on 4 December 2001.

On 5 December 2001 the application was fixed for hearing for 11 January 2002.

In the meantime, on 23 December 2001, the appellant filed the outline of her address.

On 11 January 2002 the court heard the appellant's objection to the security of costs application and it reserved its decision on the matter. It also fixed the appeal proceedings for pre-trial for 8 November 2002.

In the meantime, on 27 June 2002, the court delivered its decision concerning the application for security of costs.

On 5 November 2002 the appellant filed her application for leave to amend her grounds of appeal. This was granted by the court on 8 November 2002. On the latter date, the parties were also directed to file their amended notices of appeal and the outlines of their addresses.

The appellant filed her amended grounds of appeal on 18 November 2002 and the applicant filed his written address outline on 6 February 2003.

On 27 May 2003 the Supreme Court fixed the appeal case for hearing for 29 May 2003. On the latter date the appellant's counsel made an oral request for the exclusion of one of the judges from the composition of the court. The specific judge had rejected her administrative recourse against the deportation order (see paragraph 14 above). Consequently, the hearing was adjourned until 8 July 2003 at the appellant's request.

On 7 July 2003 the appellant's counsel requested a fifteen-day adjournment because of health problems. On 9 July 2003 the Supreme Court granted the adjournment until 11 September 2003.

On 18 September 2003 the Supreme Court rejected the appellant's request of 29 May 2003.

The appeal was heard on 2 October 2003.

On 4 December 2003 the court delivered its judgment. It upheld the appeal and set aside the first instance judgment. It found that the appellant's right to a fair trial had been violated. This was due to the fact that the immigration authorities had not allowed her to remain in Cyprus for the purposes of the trial whilst the Nicosia Family Court had continued with the case despite having being informed of the respondent's deportation. The Supreme Court noted that the Family Court should have adjourned the case and indicated to the immigration authorities to allow the respondent to return for a few days to Cyprus in order to enable her to be present at the proceedings and to defend her case. The Supreme Court ordered a retrial by a different composition of the Family Court.

On 23 December 2003 the applicant's counsel applied for a retrial of the divorce petition.

On 27 January 2004 the hearing of the divorce petition was set for directions for 10 February 2004.

In the meantime, on 4 February 2004, the respondent filed an application for leave to amend her defence.

On 10 February 2004 the court fixed the interim application and the divorce petition for directions for 17 February 2004.

In the meantime, on 13 February 2004, the respondent filed a second application for leave to amend her defence. On 17 February 2004 she withdrew her application of 4 February 2004 and the court granted her application of 13 February 2004. Subsequently, the court fixed the main divorce proceedings for hearing for 16 March 2004.

The amended defence and counter-claim were filed on 1 March 2004.

From 16 March 2004 until 18 May 2004 the proceedings were adjourned twice consecutively. Both adjournments were at the request of the respondent's lawyer because his client could not appear before the court as the immigration authorities had not made the necessary arrangements for her to come to Cyprus.

A hearing was held on 18 May 2004 and the court granted the divorce petition on the same day.


CASE OF MAHMUDOV AND AGAZADE v. AZERBAIJAN

Violation of Art. 10;Pecuniary damage - claim dismissed;Non-pecuniary damage - award

Anatoly Kovler;Christos Rozakis;Elisabeth Steiner;George Nicolaou;Giorgio Malinverni;Khanlar Hajiyev

The applicants were born in 1961 and 1979 respectively and live in Baku.

The first applicant was the acting chief editor of the Müxalifət newspaper. The second applicant was a journalist working for the same newspaper.

In its issue of 12-18 April 2003, the newspaper published an article named “Grain Mafia in Azerbaijan” (“Azərbaycanda taxıl mafiyası”), under the by-line of Samir Sharif, a pseudonym of the second applicant. The article was accompanied by a picture of J.A., who was a member of the National Academy of Sciences, a well-known expert in agriculture, and a member of the Milli Mejlis (Parliament). The article generally spoke about a number of problems in the country’s agricultural sector. It also appeared to imply, amongst other things, that J.A. was in charge of the breeding of certain experimental crops in “experimental” fields in several agricultural regions. J.A.’s name was printed in full in the article itself.

Specifically, the article read as follows (translated from Azerbaijani):

“[President] Heydar Aliyev’s famous conference in Sumgait was rich in memorable moments. Naturally, in the essence of this richness, it is impossible not to notice the scale of arbitrariness and corruption and how the entire nation is held up to ridicule. But we are not talking about the dismissal ... of [certain government officials] for reasons which remain obscure to many.

We are also not talking about how it was far from logical to accuse of stinginess a businessman named Isgandarov who has spent more than 30,000 dollars on charity in one year, while not a single member of the clan which has misappropriated billions of dollars of the country’s wealth is willing to expend a penny on development of our motherland. What is interesting is that the Head of State accused the people, whom he had turned into an object of reproach, of nepotism ... and monopolisation of the private sector in Sumgait. Aliyev says that he has refused to appoint his relatives to any [official] positions despite [having received] insistent requests in this regard. But what he does not say is that there is no person in this country other than the son Aliyev who simultaneously occupies four “armchairs”. Speaking of seizing control over [well-to-do sectors of economy], today even a baby who is just learning to speak knows which people control such a huge sphere of the Azerbaijani economy as the agricultural sector. Thousands of hectares of fertile land in Azerbaijan have been turned into an experimental zone for “valuable sorts” of grains. For almost ten years the agricultural sector has been plundered as if it were in the private ownership of the certain known person.

During the Soviet period agriculture was the main contributor to the gross domestic product and the main area of the population’s employment. However, in the Aliyev era of independence, the agrarian sector, like all other sectors of the economy, has been monopolised to serve the interests of peri-governmental circles. With the exception of grain and livestock farming, other leading branches of agriculture have slumped. The productivity level of poultry farming has decreased from 143,000 tonnes in 1995 to 35,000 tonnes in 2002. Viticulture can be said to have been completely ruined, while cotton growing is in such an acute state of decline that within the last 10 years its share in the total agricultural product has decreased from 12-13% to 2%. As a result of appropriation of the cotton-processing industry by a group of monopolists, cotton planters are being seriously exploited. At the moment fourteen of the twenty-one cotton-ginning plants existing in the country are controlled by a company named MKT. This company’s share of all the cotton processed in the country last year was 85%. [A description is given of various specific monopolistic policies pursued by this company.]

The development of the grain-growing industry is under the special care of a group [of persons] who have monopolised this sphere. For two years the people in the provinces either cannot sell the grain they have grown under considerable hardship or, in the best-case scenario, are forced to sell it for 350-400 manats per kilogramme. For example, during the last harvest season in such big grain-growing regions as Saatli, Beylagan and Agjabedi, the local executive authorities either prevented the major grain buyers from Baku from entering these regions or forced them to buy grain from specified fields. [This was done] for a simple reason – in order to sell, in a timely manner, all the grain from the thousands of hectares of [J.A.’s] ‘experimental’ fields in these regions. It is clear that, as simple peasants do not possess necessary facilities (such as special buildings) for storage of grain, they are forced to sell their crop at low prices.

The land reform is often spoken about. But at the same time several important issues are forgotten. Firstly, as many as half of those who are given a share of land do not possess even the minimum facilities to cultivate it. Secondly, thousands of hectares of fertile land, labelled as ‘state land fund’ during the land reform, are held hostage by the ‘agrarian mafia’, and not a single penny goes to the state budget from its lease.

Nowadays this mafia ... bends over backwards to obtain from the State about 250 million dollars in yearly subsidies for the development of agriculture. But no one is asking the Minister of Agriculture ... why, if he cares so much about the development of agriculture, he sells the equipment donated by the Japanese government, and not even for discount prices, but for prices higher than the ex-factory price. These people – those who sell a plough, which they have obtained free of charge, to the peasant for four to five thousand dollars, a tractor for fourteen to fifteen thousand dollars, and a grain combine harvester for fifty thousand dollars – now they want to get money from the State to revive agriculture. Sorry, but we aren’t duped by you. Your ‘Programme for the Development of Agriculture to 2015’, which you have submitted to the Government [for implementation], is not a programme aimed at supporting the peasant, but a programme allowing you to increase your personal wealth at a cost of 150-200 million dollars which you snatch from the State budget every year.”

On 23 April 2003 J.A. filed a criminal complaint with the Yasamal District Court using the procedure of a private prosecution. He claimed that the article clearly referred to him in a defamatory, slanderous and insulting manner. Specifically, he cited the following extracts as defamatory:

“... today even a baby who is just learning to speak knows which people control such a huge sphere of the Azerbaijani economy as the agricultural sector. Thousands of hectares of fertile land in Azerbaijan have been turned into an experimental zone for “valuable sorts” of grains. For almost ten years the agricultural sector has been plundered as if it were in the private ownership of the certain known person. ...

The development of the grain-growing industry is under the special care of a group [of persons] who have monopolised this sphere. For two years the people in the provinces either cannot sell the grain they have grown under considerable hardship or, in the best-case scenario, are forced to sell it for 350-400 manats per kilogramme. For example, during the last harvest season in such big grain-growing regions as Saatli, Beylagan and Agjabedi, the local executive authorities either prevented the major grain buyers from Baku from entering these regions or forced them to buy grain from specified fields. [This was done] for a simple reason – in order to sell, in a timely manner, all the grain from the thousands of hectares of [J.A.’s] ‘experimental’ fields in these regions. ...”

J.A. argued that the article clearly implied that he was in close contact with certain alleged criminal circles and thus, in essence, accused him of serious crimes such as the misappropriation of state funds allocated for agricultural research. He contended that the second applicant had deliberately made false statements damaging to his reputation and that the first applicant, as an acting chief editor, had failed to prevent this. He requested the court to convict the applicants under Articles 147.1 (defamation) and 148 (insult) of the Criminal Code.

During the trial, the applicants argued that the article had not contained any defamatory or insulting statements about J.A. They maintained that the phrase “the certain known person” did not refer to J.A. The picture of J.A. was placed in the article because of his general achievements in the development of grain farming. Lastly, they noted that the article was concerned with the general situation of the agricultural sector and that it contained no information specifically accusing J.A. of any criminal activity.

By a judgment of 20 May 2003, the Yasamal District Court convicted the applicants of defamation and insult under Articles 147.1 and 148 of the Criminal Code. Having examined the extracts from the article quoted above (see paragraph 9), the court noted that the applicants’ denial of the fact that the article had anything to do with J.A. was groundless, because the text of the article clearly mentioned J.A.’s name in full and clearly stated that thousands of hectares of grain fields belonged to him. The court went on to find that:

“... expression by Y. Agazade of the idea of the existence of a mafia that does not exist in reality and his dissemination of this idea through the mass media constitutes defamation, that is, deliberate dissemination of false information tarnishing J.A.’s honour and dignity and damaging his reputation. Therefore, the court finds that, by disseminating [through the mass media] the information about the existence of a mafia that does not exist in reality, Y. Agazade committed an offence under Article 147.1 of the Criminal Code, and that, by making and disseminating the statement ‘in order to sell, in a timely manner, all the grain from the thousands of hectares of [J.A.’s] ‘experimental’ fields in these regions’, Y. Agazade committed an offence under Article 148 of the Criminal Code. The other accused person, R. Mahmudov, bears the same criminal responsibility for [allowing such dissemination as the newspaper’s acting chief editor]. Accordingly, R. Mahmudov and Y. Agazade must be found guilty under Articles 147.1 and 148 of the Criminal Code.”

The court sentenced each applicant to three months’ imprisonment under Article 147.1 of the Criminal Code and three months’ imprisonment under Article 148 of the Criminal Code. By partially merging these sentences, the court fixed a total sentence of five months’ imprisonment in respect of each applicant. At the same time, applying section 2.3 of the Milli Mejlis (Parliament) Resolution on Amnesty in Connection with the Anniversary of the Victory over Fascism in World War II, dated 6 May 2003, the court exempted them from serving their sentences.

The applicants appealed. They argued that the article discussed a number of problems in the agricultural sector and did not specifically relate to J.A. The fact that it contained J.A.’s picture and a statement that he possessed thousands of hectares of grain fields did not amount to defamation or insult. In respect of that statement, they argued that it was a generally known fact and did not offer any evidence in its support. The applicants also argued that J.A. and the Yasamal District Court had wrongly construed the totality of statements contained in the article as defamatory whereas their intended meaning was harmless.

On 16 July 2003 the Court of Appeal upheld the Yasamal District Court’s judgment.

On 2 March 2004 the Supreme Court upheld the lower courts’ judgments.

Articles 47 and 50 of the Constitution guarantee freedom of thought and speech and freedom of the mass media.

Article 147.1 of the Criminal Code provided as follows:

“Defamation, that is dissemination, in a public statement, publicly exhibited work of art or in mass media, of knowingly false information discrediting the honour and dignity of a person or damaging his or her reputation –

is punishable by a fine in the amount of one hundred to five hundred conditional financial units, or by community service for a term of up to two hundred and forty hours, or by corrective labour for a term of up to one year, or by imprisonment for a term of up to six months.”

Article 148 of the Criminal Code provided as follows:

“Insult, that is deliberate humiliation of the honour and dignity of a person, expressed in an obscene manner in a public statement, publicly exhibited work of art or in mass media –

is punishable by a fine in the amount of three hundred to one thousand conditional financial units, or by community work for a term of up to two hundred and forty hours, or by corrective labour for a term of up to one year, or by imprisonment for a term of up to six months.”

According to Article 81 of the Criminal Code, persons convicted of a criminal offence may be exempted from serving their sentence by an amnesty act. According to Article 83.1, a convicted person retains a criminal record until his or her conviction is removed or expunged. According to Article 83.2, the conviction of a person dispensed from serving his sentence is considered to be expunged.

The Milli Mejlis (Parliament) Resolution on Amnesty in Connection with the Anniversary of the Victory over Fascism in World War II, dated 6 May 2003, exempted a large number of convicts (with a number of exceptions) from serving their sentences or the remainder of their sentences. The amnesty applied to persons who had committed a criminal offence prior to the entry into force of the Resolution. Section 2.3 of the Resolution provided as follows:

“Persons sentenced, for deliberate commission of a criminal offence, to imprisonment for a term of no more than three years shall be dispensed from serving their sentences.”

Article 10 of the Law on Mass Media of 7 December 1999 prohibits the mass media from, inter alia, publishing defamatory material. According to Article 60, editors of mass media sources and journalists may be held liable criminally, administratively or otherwise, if, inter alia, an editor fails to ensure the compliance of the published material with the requirements of this Law, or if the published material interferes with an individual’s private life.


The applicant, Mr Colin Doyle, is a British national who was born in 1947 and lives in Brussels.

The applicant moved to Belgium in 1983 where he has resided ever since. On 13 June 2006, he enquired about registering on the electoral role in the United Kingdom.

On 11 July 2006 the Department for Constitutional Affairs (DCA) stated that on the basis of the Representation of the People Act 2002 only nationals resident overseas for less than 15 years could register to vote in United Kingdom general and European elections. It was pointed out that he could be reinstated on the electoral role if he returned to live in the United Kingdom and that he was entitled to vote in the European elections in Belgium as a citizen of the European Union. It was also drawn to his attention that eligibility to vote in other countries generally depended on domestic law but that nationality was generally a requirement: he could therefore apply for Belgian nationality, or dual nationality if he did not wish to lose his British nationality. By way of general information, custom and practice was said to differ in European Union States, Danish citizens overseas losing the right to vote after 8-10 years and no overseas Irish citizen being allowed to vote at all.

The Representation of the People Act 1985 provided for the first time for United Kingdom citizens living overseas to be able to register to vote in general and European Parliamentary elections in the United Kingdom. The applicable time-limit was five years, which was extended to 20 years by the Representation of People Act 1989 (entry into force 1990).

The Representation of the People Act 2002, after debate in both Houses of Parliament, considered however that 15 years was a more appropriate period and the legislation was amended as from 1 April 2002).


Violation of Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award - domestic proceedings;Costs and expenses partial award - Convention proceedings

On 15 April 1971 the Tirol Regional Government acting as the Agricultural Authority of First Instance (Landesregierung als Agrarbehörde 1.Instanz, “the Agricultural Authority”) received a motion dated 19 January 1971 for opening land consolidation proceedings at Kalkstein in the municipality of Innervillgraten, signed by the land owners concerned including the applicant.

On 3 May 1971 the Agricultural Authority ex officio opened the Kalkstein land consolidation proceedings (Zusammenlegungsverfahren), involving property in Innervillgraten of which the applicant and his siblings are co-owners.

On 28 May 1974 the Agricultural Authority held a hearing with the land owners concerned as regards the provisional transfer of land (vorläufige Übergabe). The majority of land owners accepted the authority’s proposal, whereas the applicant opposed it. At the close of the hearing the authority orally delivered the decision ordering the provisional transfer of land and informed the participants that no remedy was available against it under the Tirol Agricultural Land Planning Act 1969 (Flurverfassungs-Landesgesetz).

On 7 May 1979 the Agricultural Authority issued the consolidation scheme (Zusammenlegungsplan).

On 5 February 1981 the Provincial Board upon, inter alia, the applicant’s appeal, set aside the consolidation scheme on the ground that the Agricultural Authority had failed to carry out a proper valuation of the plots of land involved. Further, it declared that the area had to be cultivated as provided for in the provisional transfer of land of 28 May 1974 until a new consolidation scheme was issued.

On 14 September 1982 the Administrative Court (Verwaltungs-gerichshof), upon the complaint of the applicant and his co-owners, quashed the Provincial Board’s declaration that the consolidation area had to be cultivated as provided for in the provisional transfer until a new consolidation scheme was issued. It found that the Provincial Board had not been competent to make such a declaration. It was only called upon to decide on the merits of the case which had been before the Agricultural Authority, i.e. in the present case it had to decide on the lawfulness of the consolidation scheme. In any event, the decision on the provisional transfer of land had become final long ago.

After having held a hearing on 28 April 1983, the Agricultural Authority issued an occupation and valuation schedule (Besitzstandsausweis und Bewertungsplan).

On 1 December 1983 the Provincial Board dismissed the applicant’s appeal. It noted that the applicant had not contested the occupation schedule and had not submitted any arguments as regards the valuation of specific plots of land. There were no reasons to depart from the Agricultural Authority’s findings.

On 8 October 1984 the Constitutional Court (Verfassungs-gerichtshof) declined to deal with the applicant’s complaint and referred the case to the Administrative Court.

On 28 May 1985 the Administrative Court dismissed the applicant’s complaint, finding that he had not submitted any specific objections against the occupation and valuation schedule.

On 28 January 1990 the Agricultural Authority received further documents relating to a number of changes in the valuation of land.

On 17 May 1991 the Agricultural Authority issued a new consolidation scheme. It found, having regard to the valuation of the land, that the difference in value between the plots the applicant had owned prior to the proceedings and the plots allocated to him was less then the 5% which were admissible under the Agricultural Land Planning Act. For this difference it ordered payment of compensation. The consolidation scheme was open to public inspection at the Innervillgraten local authority during two weeks in July 1991.

The applicant did not appeal against the consolidation scheme which, following its publication, became final on 1 July 1991. However he appealed against the notification of 17 May 1991 by which the Agricultural Authority had informed the parties of the publication of the consolidation scheme.

On 29 October 1992 the Provincial Board rejected the applicant’s appeal as being inadmissible. It noted that the said appeal was directed against the notification of 17 May 1991, which was in itself not subject to appeal.

On 14 June 1993 the Constitutional Court declined to deal with the applicant’s complaint and referred the case to the Administrative Court.

On 24 October 1995 the Administrative Court dismissed the applicant’s complaint.

By decision of 12 April 1996 the Agricultural Authority closed the consolidation proceedings following the entry of all changes of property in the land register in 1993 and the final settlement of the costs in early 1996.

On 21 June 1996 the Provincial Board dismissed the applicant’s appeal against the decision of 12 April 1996.