Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Criminal charge;Reasonable time);Violation of Article 6+6-3-b - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Reasonable time) (Article 6 - Right to a fair trial;Article 6-3-b - Preparation of defence)

On 27 June 1988 the C-Bank filed an action for payment of Austrian schillings (ATS) 8,497 against the applicant on the ground that, following termination of their contractual relationship, the applicant's current account showed a debit balance for this amount.

On 18 July 1988 the Hietzing District Court (Bezirksgericht), in summary proceedings, issued an order for payment of the debt (Zahlungsbefehl) against the applicant. The applicant, represented by Mr K., filed an objection (Einspruch), which the District Court received on 5 August 1988.

On 15 November 1988 judge D. at the District Court held a hearing.

On 30 November 1988 the District Court received notice that Mr K. no longer represented the applicant. On 2 February 1989 a hearing which had been scheduled for 9 February 1989 was cancelled. The Government submit that this was due to the fact that the applicant's representative had withdrawn from the case, while the applicant submits that the court was prevented from holding the hearing. Subsequently, 22 December 1989 was set for the next hearing.

On 13 December 1989 the applicant, represented by Mrs O., filed a counterclaim (Widerklage) requesting compensation in the total amount of ATS 89,543 for loss of interest which had allegedly been caused by the negligent conduct of the bank in connection with a loan taken out by a certain E., for which he, the applicant, had mortgaged his property. Further, he requested a declaratory decision to the effect that a guarantee he had given to the C-Bank in relation to E.'s debt was null and void.

On 21 December 1989, the bank filed preparatory submissions in reply. It particularly denied that there was a link between the two claims at issue.

On 22 December 1989 judge G. at the District Court held a hearing.

On 30 March, 24 April and 25 June 1990, judge P. at the District Court held hearings. The parties presented documentary evidence and the court heard N. and W., two employees of the C-Bank, and K., the lawyer involved in the case, as witnesses. At the last of these hearings the court decided to join the proceedings concerning the bank's claim and the applicant's counterclaim. It also noted that the C-Bank had extended their claim, requesting additional payment of ATS 14,180 for which the applicant was allegedly liable on account of his guarantee for the debt of E.

On 29 June 1990 the District Court decided to adjourn the proceedings until the judgment in another set of proceedings between the applicant and E., which was pending before the Vienna Regional Civil Court (Landesgericht), became final.

On 16 October 1990 the Vienna Regional Civil Court, upon the applicant's appeal, quashed the decision to adjourn on the ground that, according to the relevant procedural rules, it had to be taken in the course of an oral hearing.

On 16 January 1991 Mrs O. informed the District Court that she no longer represented the applicant. The applicant was subsequently represented by Mr R.

On 11 April 1991 and 10 October 1991, judge Ed. at the District Court held further hearings. The applicant was heard as a party and W. was again heard as a witness. At the latter hearing the Court again decided to adjourn the proceedings until the judgment of the Vienna Regional Civil Court in the proceedings between the applicant and E. became final.

On 4 February 1992 the Vienna Regional Civil Court, upon the applicant's appeal, quashed the decision and ordered the District Court to continue the proceedings. It found that the District Court had wrongly assumed that the proceedings between the applicant and E. would resolve a preliminary incidental question. The District Court received the Regional Court's decision on 10 March 1992.

On 1 September 1992 the applicant extended his counterclaim to a total amount of ATS 213,440.

On 6 October 1992 judge Ed. at the District Court, upon the claimant's request, adjourned a hearing which had been scheduled for 15 October 1992 to 26 January 1993.

On 2 November 1992 the applicant informed the District Court that he had revoked Mr R.'s power of attorney.

On 18 January 1993 judge Ed. made a request to be replaced as she considered herself to be biased on account of certain accusations which the applicant had made against her. On the same day the President of the District Court granted her request and assigned the case to judge A. A hearing which had been scheduled for 26 January 1993 was cancelled. The applicant was at that time represented by Mrs W.

On 23 February 1993 the District Court received notice that Mrs W. no longer represented the applicant.

The next hearing was scheduled for 21 June 1993 but had to be postponed to 12 July 1993 upon the claimant's request.

On 17 June 1993 the applicant requested legal aid. Upon the District Court's request, he supplemented his application on 1 July 1993.

On 5 July 1993 the District Court dismissed the applicant's request for legal aid.

On 9 July 1993 Mr H., who had been appointed as the applicant's representative by the Lawyer's Chamber under section 10 § 3 of the Lawyer's Act (Rechtsanwaltsordnung) - applicable in a case where a litigant who is not indigent is unable to find a lawyer willing to represent him - requested that the hearing scheduled for 12 July 1993 be postponed. The applicant claims that he had only requested the appointment of counsel for this specific request, while the Lawyer's Chamber appointed Mr H. to represent him in the further proceedings.

On 16 November 1993 the District Court upon the request of Mr H. postponed the next hearing which had been scheduled for 3 December 1993 to 21 January 1994.

On 18 January 1994 Mr H. requested that the hearing again be postponed as he had been unable to obtain the necessary information from the applicant. The District Court dismissed the request. The applicant submits that he was unaware that Mr H. acted as his counsel and that the latter had tried to contact him at a wrong address. He further claims that the summons to appear personally at the hearing of 21 January 1994 was not correctly served on him.

On 21 January 1994 judge A. at the District Court held a further hearing and admitted the extension of the applicant's counterclaim.

On 25 February 1994 the District Court received notice that Mr H. no longer represented the applicant.

On 18 April 1994 the District Court cancelled the date for the next hearing which had been set for 22 April 1994. It noted that, in the proceedings at issue, the parties were obliged to be represented by a lawyer (Anwaltszwang). As the applicant had requested legal aid (see paragraph 35 below) and was currently not represented, the hearing could not take place.

On 11 October 1996 judge Z. at the District Court set 30 October 1996 as a date for the next hearing. In the summons the applicant was informed that he had to be represented by counsel at the hearing. Should he not be represented, he would be considered as being in default. Upon the claimant's request the hearing was postponed to 2 December 1996.

On 2 December 1996 neither of the parties appeared at the hearing. Consequently, the proceedings were stayed (Ruhen des Verfahrens). So far, neither of the parties has requested their continuation.

On 8 April 1994 the applicant requested legal aid. He submitted a declaration of means, according to which he had no income, property, savings or other assets. Further, he declared that he had debts with the S-Bank and the Sch. limited company. The standard form for this declaration contained a warning that, in case legal aid was obtained improperly by making false or incomplete statements, a fine for abuse of process (Mutwillensstrafe) could be imposed.

In his accompanying submissions the applicant stated, inter alia, that until September 1993 he had received ATS 15,000 per month from the Sch. Company. As of 1 October 1993 he was without income and was moreover obliged to pay back any payments he had received from that company. His old-age pension was only due as of 1 September 1994. Further, the applicant stated that he had no relatives and received support from a few acquaintances.

On 11 April 1994 judge Er. at the District Court ordered the applicant to provide further information. He was requested to submit the names and addresses of the persons supporting him, and to specify the amounts, intervals and means of their payments. Further, the applicant was requested to submit a number of supporting documents.

On 15 April 1994 the applicant submitted that he received ATS 200 per week from a certain Mrs F. He also submitted a number of documents.

On 5 May 1994 the District Court, without a hearing, dismissed the applicant's request for legal aid and imposed a fine of ATS 30,000 for abuse of process. Referring to the applicant's declaration of means and his further submissions, it found that the applicant had made incomplete or false statements. In particular he had declared that he was without income since 1 October 1993 and only received ATS 200 per week. However, the documents submitted by him showed that he had paid his rent of ATS 1,234 from October 1993 to January 1994. As the total income which he claimed per month was less than this sum, it could not be deduced from his submissions how he had been able to pay his rent. Finally, the Court noted that it had fixed the fine in a relatively modest amount as the applicant had only attempted improperly to obtain legal aid.

On 8 May 1994 the applicant appealed against this decision.

On 28 February 1995 the Vienna Regional Civil Court, sitting in private, dismissed the applicant's appeal. It found that the District Court had rightly rejected the applicant's request for legal aid. The applicant's submissions that he had savings which allowed him to pay his rent from October 1993 onwards, constituted new facts which were inadmissible in the appeal proceedings. In his request for legal aid he had stated that he had received no income since 1 October 1993 and depended on the support of acquaintances. Upon the Court's request to supplement his submissions, the applicant had specified that he received ATS 200 per week as support. He had not, however, stated that he had any savings to cover his maintenance. The District Court had rightly concluded that he had made incomplete or false statements and had, thus, failed to show that the costs of the proceedings would endanger his means of livelihood. It had also correctly imposed a fine for abuse of process in accordance with section 69 of the Code of Civil Procedure (Zivilprozessordnung).

On 28 March 1995 the District Court issued an order for payment of the fine for abuse of process.

On 16 August 1995 the District Court, referring to section 220 § 3 of the Code of Civil Procedure, noted that an attempt to collect the fine had been futile, and converted the fine into ten days’ imprisonment. The applicant was informed that he could lodge an appeal against this decision. It appears that the applicant did not do so.

Section 69 of the Code of Civil Procedure (Zivilprozeßordnung) provides that a court shall impose a fine for abuse of process of up to ten times the amount provided for in section 220 § 1 of the same Code (namely ATS 400,000) on a litigant who obtains legal aid improperly by making false or incomplete statements.

Section 220 provides inter alia that a fine for abuse of process may not exceed ATS 40,000 (paragraph 1). In the event of an inability to pay, the fine shall be converted into imprisonment. The length of imprisonment shall be determined by the court, but may not exceed ten days (paragraph 3).

According to section 514 of the Code of Civil Procedure an appeal (Rekurs) lies against any decision of a court, unless it is explicitly excluded.

Section 19 of the Penal Code (Strafgesetzbuch) deals with fines (Geldstrafen). It provides that fines shall be expressed as day-fines. They shall not amount to less than two day-fines (paragraph 1). Day-fines shall be fixed according to the offender’s means and personal circumstances at the time of the judgment at first instance. However, they shall not amount to less than ATS 30 or more than ATS 4,500 (paragraph 2). If a fine proves to be irrecoverable, a sentence of imprisonment in default shall be passed. One day’s imprisonment in default shall correspond to two day-fines (paragraph 3).


Preliminary objections allowed (Article 35-1 - Six month period);Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);No 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 - award

The applicant was born in 1961 and lives in Slovenj Gradec.

On 4 and 5 April 1995 a Special Unit (Specialna enota), which was under the direct control of the Ministry of Internal Affairs (“the MIA”) in cooperation with officers from the Slovenj Gradec Internal Affairs Administration (Uprava za notranje zadeve – hereinafter referred as the “Slovenj Gradec Police”) undertook a large-scale operation against the activities of a criminal organisation presumed to be operating on the territory of the town of Slovenj Gradec.

On 4 April 1995 the officers twice entered a coffee bar in Slovenj Gradec, called “Pik Bar”, searching for members of the above-mentioned criminal organisation. In parallel to the investigation of the Pik Bar, the police carried out an extensive operation in the town and its surroundings.

On 5 April 1995 at about 8.30 p.m. the applicant, driving a car, was arrested in Slovenj Gradec by officers of the Special Unit and the Slovenj Gradec Police. He was brought to the Slovenj Gradec Police Station for having allegedly failed to comply with the police orders. He was questioned by the police and released on 6 April 1995 at approximately half past midnight.

There are two conflicting versions of what occurred during the police procedure and the transport to the police station.

According to his submissions before the Court and the statements he gave in the relevant domestic proceedings, the applicant was driving through the centre of Slovenj Gradec on the evening of 5 April 1995 when at least two cars overtook him and forced him to stop. Approximately fifteen armed officers, wearing black jackets, arrived at the scene, some of whom approached the applicant. They were shouting and the applicant, still sitting in the car but attempting to step out, put his hands up. At that moment, the officers dragged him out of the car. They pushed him to the ground, tied him up, took off his shoes, dragged him by his legs approximately 25-30 meters along the road into a dark area where they beat and kicked him for some 15 minutes. After someone had said “he’s had enough, he’s had enough”, the applicant was placed in an off-road vehicle and taken to the police station. On the way there, a journey which lasted approximately 30 minutes, two officers, sitting in the front of the car, threatened to kill him and one of them electro-prodded him several times with a stun gun. At the police station, he was put in the room for provisional detention (prostor za pridržanje) where one of the officers untied him at his request. The applicant was questioned and told that he had failed to comply with the police order to stop his vehicle. He was then released.

In the meantime, the police also searched the applicant’s car.

About thirty people were arrested and injured during the two-day operation.

According to the version of events given by the Government, the police noticed a car moving at high speed. Since the conduct of the driver looked suspicious, the police decided to stop the car, to identify the driver and to perform a preventative search. For this reason, they drove after the car. The driver accelerated, prompting the police to force him to stop.

When the driver, who was later identified as the applicant, stopped the car, an unspecified number of the Special Unit’s officers confronted him and informed him that this was a police procedure. The applicant jumped towards one of the officers and attempted to hit him. The officer managed to block his blow and then with the other officers forced the applicant to lean against his car in order to search him. The applicant struggled free and escaped.

When the officers caught him, the applicant again tried to resist and they responded by using truncheons and gripped his elbow to handcuff him, knocking him down in the process. Since the applicant continued to resist, the officers tied his wrists with a plastic cord. They subsequently took him to the police station on suspicion of committing the criminal offence of “obstructing an official in the course of his duties” (preprečitev uradnega dejanja uradni osebi). The applicant was released after questioning.

The officers were authorised to use force on the basis of section 54 of the Internal Affairs Act. During the operation, they wore vests with the visible sign “Police” (“Policija”). In their later submissions, they stated that only two officers had used force against the applicant.

During the police procedure, the applicant did not request medical aid and the police only afterwards learned that he had sustained injuries. In addition, he did not complain about the conduct of the officers during the procedure.

The judgment of 12 February 2001 issued in the proceedings instituted against the applicant (see paragraph 48), established that three officers of the Slovenj Gradec Police, D.P., J.K. and M.F., who were in the car which stopped the applicant, received information about the location of a “white Golf”, believed to be being driven by the applicant, and an order to stop it.

Officer J.K. testified in the criminal investigation instituted against the applicant, that they had received information that the “white Golf” had left “the place”, which meant that it had left Pik Bar. He was not able to comment on the speed of the applicant’s car. In addition, he stated that by the time a minute had gone by after the applicant was stopped, there were already four or five vehicles of the Slovenj Gradec Police and the Special Unit at the scene and that three or four officers arrived in each vehicle.

Officer M.F. stated in the same criminal investigation:

“We had information about individuals who were suspected members of that [criminal] organisation, and one of them was Aleksander Matko, whom I did not know since I am from Maribor, but I knew him from photographs. (...) We were on one of the streets of Slovenj Gradec when we received information that the car of Aleksander Matko had been seen and that our colleagues had tried to stop him, but he would not stop despite warnings.”

Officer D.P. explained in his testimony in the above mentioned criminal investigation:

“At the critical time, we were conducting, in the territory of Slovenj Gradec Police, an operation to investigate organised crime. (...) In front of the Hotel Pohorje, a group of people was noticed which included M.A. and Aleksander Matko. One of the police patrols noticed that M.A. left with the motorcycle and they also saw when Aleksander Matko drove away. In fact, everything happened very quickly (...). We placed vehicles at different locations (...). Our official vehicle, which I was driving, received a message that a white Golf was being driven by a person believed to be Aleksander Matko (...). We decided to stop him in order to search the car since there was a suspicion that he was armed.”

Another officer from the Slovenj Gradec Police, I.G., who had arrived at the scene with the officers of the Special Unit and was also questioned in the criminal investigation, stated that there were 20 officers of the Special Unit and Slovenj Gradec Police at the scene, and that five of them had had direct contact with the applicant.

On 6 April 1995, soon after his release, the applicant was admitted to the Slovenj Gradec General Hospital where he stayed until 7 p.m. The medical report, written by a doctor in that hospital, stated that the applicant had bruises on his head, but did not include any details of the injuries. The applicant was advised to rest for a few days.

Next day, 7 April 1995, the applicant sought medical aid in the Maribor General Hospital. There, he also explained to a doctor that on 5 April 1995 he had been beaten by unknown armed persons. The medical report of 7 April 1995 indicates several lesions, including:

- bruises on the right eye and a small amount of suffusion in the surrounding area;

- a haematoma on the left side of the forehead

- a painful nose;

- a 6 cm by 4 cm haematoma on the left shoulder;

- two 4-5 cm linear skin abrasions on the left side of the thorax;

- a child’s-hand-sized moderate oedema behind the right ear;

- an extensive haematoma on the left thigh.

The doctors had also suspected a fracture of the right temporal bone. The report of an x-ray examination on 19 April 1995 indicated that there was a hairline fracture (fissura).

On 7 April 1995 the applicant went to the Slovenj Gradec Police and made an oral complaint against the officers of the Special Unit concerning the events of 5 April 1995. A written statement was prepared by the officer in charge and signed by the applicant.

In his statement, the applicant alleged that about eight to ten officers had dragged him to the metallic fence of the construction site behind the Slovenj Gradec Health Centre where they had beaten him, shouted at him and threatened to kill him. He further stated that while being driven to the police station he had been beaten again, and given electric shocks with the special truncheons. He had not known where the police were driving since his head was pointing downwards the whole way. He also described the injuries he had sustained during the police procedure.

On 15 May 1995 the applicant lodged, through his lawyer, a written criminal complaint (kazenska ovadba) with the Slovenj Gradec Police against unidentified police officers for causing minor bodily harm (lahka telesna poškodba) and an unlawful deprivation of liberty (protipraven odvzem prostosti). The complaint mentions the names of two officers, D.P. and J.K., who were present at the scene but not involved in the alleged ill-treatment. The applicant proposed that the names of the officers who had allegedly ill-treated him be obtained from those officers and that criminal proceedings be introduced.

On 15 June 1995 the Slovenj Gradec District Public Prosecutor’s Office (Okrožno državno tožilstvo) asked the applicant’s lawyer to add his client’s deposition to the file, which he did on 20 June 1995. On 21 October 1996 and 6 January 1997 the applicant’s lawyer sought information from the Public Prosecutor’s Office about the state of progress in the proceedings.

In the meantime, on 14 July 1995, the Slovenj Gradec District Public Prosecutor (the “Public Prosecutor”) requested the Slovenj Gradec Police to identify the officers who had participated in the procedure against the applicant and to conduct an interview with them. Subsequently, two reports concerning the relevant police operation were submitted to the Public Prosecutor: one by the MIA on 15 November 1995 and one by the Slovenj Gradec Police on 5 February 1996. They are each approximately one page and a half long and their content corresponds to the facts as submitted by the Government.

It transpires from the MIA’s report that, on 20 April 1995, the MIA had appointed a “working group” (delovna skupina) consisting of officers from the Slovenj Gradec Police and the MIA to assess the lawfulness of the procedures carried out by the Special Unit and the Slovenj Gradec Police. The Court has not received any documents produced or obtained by this working group, except the above-mentioned MIA report. The latter, which under the “subject” (zadeva) refers solely to the criminal offence allegedly committed by the applicant, reads as follows:

“Further to the analysis of procedures and activities which had taken place on 4 and 5 April 1995, the working group established that all the measures and procedures were lawful and in accordance with legal powers and professional rules.

The procedure against Aleksander Matko was carried out by criminal investigators D.P., J.K., M.F, T.G, I.G. and officers of the MIA’s Special Unit, who were headed by M.J (...).

On 5 April 1995, at 20.30, Aleksander Matko actively resisted the lawful procedure against him with the intention of preventing criminal police investigators from performing their official duties. Since their official duty could not be carried out otherwise, physical force and handcuffs were used against Matko in accordance with police powers.

From the facts described above and from the contents of the criminal complaint [lodged against the applicant] it is evident that there exists a reasonable suspicion [utemeljeni sum] that Matko Aleksander on 5 April at 20.30 committed the criminal offence of obstructing an official in the course of his duties within the meaning of section 302/II of the Criminal Code of the Republic of Slovenia.

The criminal complaint of the Slovenj Gradec Police states that Aleksander Matko sustained injuries as a result of the use of force. (...) On the basis of the facts, stated in the Slovenj Gradec Police’s criminal complaint, there are no grounds for suspicion that the officers of the special working group of the Criminal Police Directorate [the officers of the Slovenj Gradec Police and the Special Unit] committed the alleged criminal offences (...)”

The Slovenj Gradec Police report finds, inter alia, that D.P. and J.K. stopped the applicant’s car and that the Special Unit’s officers were under the command of M.J. It explains that the Head of the Special Unit was authorised to give statements concerning the procedure of the Special Unit.

On 17 January 1997 the Public Prosecutor issued a decision dismissing the applicant’s criminal complaint. It was served on the applicant’s lawyer on 22 January 1997.

In the decision the Public Prosecutor identified D.P., J.K. and M. J. as the officers accused in the applicant’s complaint. After giving a summary of the applicant’s allegations, the Public Prosecutor concluded:

“In the course of the proceedings, the additional information concerning the above-mentioned criminal complaint by the Slovenj Gradec Police and the MIA – Office of the Minister – were obtained. This enabled it to be established that the above-mentioned officers, all employees of the MIA, had participated in the procedure against the applicant.

It would appear from the already mentioned report of the MIA – Office of the Minister – that the employees of the MIA acted in accordance with their powers.

In addition, on 17 January 1997, a request for an investigation against Matko Aleksander was lodged with the investigating judge in the Slovenj Gradec District Court, for, among other matters, obstructing an official in the course of his duties (...).

In view of the above considerations, the accused D.P., J.K. and M.J. acted in the framework of their duties and powers, which they have as employees of the MIA, and therefore there is no reasonable suspicion (utemeljeni sum) that they committed the alleged criminal offences (...).

For those reasons, the criminal complaint must be dismissed.”

The decision drew the applicant’s attention to his right to initiate a criminal prosecution as a subsidiary prosecutor (see paragraphs 55 and 58 below) within 8 days. He did not avail himself of this opportunity.

On 12 April 1995 the Slovenj Gradec Police lodged a criminal complaint against the applicant for the criminal offence of “obstructing an official in the course of his duties” under section 302, paragraph 4-1 of the Slovenian Criminal Code, which referred to the same incident as the applicant’s criminal complaint.

On 17 January 1997 the Public Prosecutor requested the Slovenj Gradec District Court to open a criminal investigation against the applicant. It appears that her request was based on the above-mentioned reports of the MIA and the Slovenj Gradec Police (see paragraphs 31-33).

On 8 April 1997 the investigating judge questioned the applicant. The applicant denied having committed any offence and complained that he had been beaten and ill-treated by the police. He pointed out that he had medical reports proving his injuries. The reports were included in the file.

On 8 May 1997, further to a proposal of the investigating judge, the Slovenj Gradec District Court decided not to open a criminal investigation against the applicant. The court pointed out, inter alia, that the officers who were allegedly attacked by the applicant had not been identified and that the Ministry’s report, stating that a special operation for the investigation of serious crimes was in progress at that time, and the Public Prosecutor’s request for the investigation, which stated that the applicant was arrested because of his excessive speed, were contradictory.

On 12 May 1997 the Public Prosecutor appealed against this decision. On 4 December 1997 the Maribor Higher Court upheld her appeal finding that, despite the shortcomings mentioned in the first-instance decision, there were sufficient grounds for suspicion that the applicant had committed the alleged offence. Accordingly, it changed the first-instance court’s decision and opened a criminal investigation against the applicant.

Between 19 February 1998 and 10 March 1998 the investigating judge interviewed five officers from the Slovenj Gradec Police who had participated in the operation, the officer M.J., who had been responsible for the officers of the Special Unit, and A.K., who had allegedly witnessed the incident.

When asked to comment on the applicant’s allegations, the officers either denied the alleged ill-treatment or stated that they could not have seen the events well enough. A.K. testified in favour of the applicant, saying that he had not resisted but had been seriously beaten by the officers.

On 17 March 1998 the criminal investigation was concluded with the investigating judge’s decision ordering the exclusion of certain documents from the case-file in accordance with section 83, paragraph 3, of the Criminal Procedure Act. It is not known when that decision was served on the applicant.

On 28 December 1998 the Public Prosecutor filed an indictment against the applicant for “attempting to obstruct an official in the course of his duties” (poskus kaznivega dejanja preprečitve uradnega dejanja uradni osebi).

On 27 January 1999 the applicant filed an objection to the indictment. He pointed out that he had been ill-treated and referred to the statements he had previously given in the proceedings. He also mentioned that he had lodged an application with the Court. His objection was rejected by the Slovenj Gradec District Court on 16 February 1999.

On 13 September 1999 and 22 November 1999 the Slovenj Gradec District Court held hearings. The court heard the applicant, and all the officers who had been questioned in the investigation and A.K.

By a judgment of 22 November 1999 the court acquitted the applicant. The court, acknowledging that the applicant had sustained injuries on the relevant day, concluded that there had been “physical contact” between the applicant and the officers. The court, however, found that it had not been proven that the applicant had physically resisted the officers as described in the indictment since none of the Special Unit’s officers who had had physical contact with the applicant had been identified and there were no documents describing the conduct of the applicant after he had been stopped.

On 5 January 2000 the Public Prosecutor appealed against the judgment and on 27 September 2000 the Maribor Higher Court quashed the judgment and remitted the case to a new panel for retrial.

During the retrial, hearings were held on 15 December and 12 February 2001. At the second hearing the court heard a new witness, D.Č., at the applicant’s request.

By a judgment of 12 February 2001, the Slovenj Gradec District Court convicted the applicant as charged and sentenced him to 3 months’ imprisonment, suspended for 3 years. The court found:

“Although it was not known which officers of the Special Unit were involved in the procedure after the applicant’s car had been stopped, the officers questioned sufficiently described the acts and the order of events as observers. They could also not have been influenced by anything and therefore they could be entirely trusted. On the contrary, it was impossible to trust either of the witnesses A.K. and D.Č., since it clearly transpires from their testimony that they knew the applicant well; they also confirmed that they knew him. Although the first witness was able to describe the events immediately after the operation, D.Č.’s testimony was unclear and biased in favour of the accused since he said that the officers had beaten the accused with truncheons all over his body and shouted, while it transpired from the medical documentation that he sustained injuries only on the upper part of the body, which is usual for this sort of measure.

The conduct of the accused (...) undoubtedly shows (...) all the elements of the criminal offence (...) since his conduct undoubtedly represented an active form of resistance against the police officers and force was also directed against the officers, though the latter in the interest of protecting the data concerning employees of the Special Unit were not questioned. In any event, given the sufficiently convincing testimony of witnesses questioned in the proceedings – police officers – questioning of the employees of the Special Unit was not necessary (...). ”

The court also found that the applicant had not injured any of the officers involved.

On 12 March 2001 the Public Prosecutor appealed against this judgment and applied for a heavier sentence. The applicant also appealed.

On 9 May 2001 the Maribor Higher Court upheld the conviction but amended the judgment with respect to the costs of the proceedings. The applicant did not appeal to the Supreme Court.

Lastly, on 11 October 2001 the Slovenj Gradec District Court ordered the applicant to pay an additional sum to cover the costs of one of the witnesses heard during the proceedings. On that day, the proceedings were “finally concluded” (pravnomočno končan postopek).

At the material time, conditions for the use of force by the police were regulated by the Law on Internal Affairs (Zakon o notranjih zadevah, SRS Official Gazette, no. 28/1980 with amendments, in force until 17 July 1998; hereinafter referred as the “LIA”). Section 54 of the LIA stipulated, inter alia, that a police officer could use force (fizična sila) in the performance of his duties to overcome the resistance of a person who refused to comply with the legal orders of the police. The Guidelines for the Use of Coercive Measures, issued by the then Secretary of the Interior (Navodilo o uporabi prisilnih sredstev, SRS Official Gazette, no. 25/1981, in force until 24 June 2000), further specified that a police officer could in the cases referred to in section 54 of the LIA exceptionally use truncheons, punches, and means of restraint, when he encountered active resistance or an attempt to evade arrest.

In general, acts of ill-treatment resulting in physical harm are punishable under various provisions of the Criminal Code of the Republic of Slovenia (Kazenski zakonik Republike Slovenije, Official Gazette no. 63/94) prosecution being mandatory. In the case of the offence of inflicting “minor bodily harm” prosecution is triggered by the aggrieved party’s official complaint lodged with the police or the public prosecutor. However, when minor bodily harm is caused by a public official, e.g. a police officer, this will constitute a delictum proprium, i.e. the offence of “violation of human dignity by abuse of office or official duties”, for which prosecution is mandatory: notwithstanding the absence of a complaint by the aggrieved party (oškodovanec).

Among the offences defined by the Criminal Code, the following are relevant for the present case:

Minor bodily harm, section 133

“(1) Whoever inflicts bodily harm on another person resulting in the temporary weakness or impairment of an organ or part of his body, his temporary inability to work, the impairment of his appearance or temporary damage to his health shall be punished by a fine or by imprisonment for not more than one year.

(4) Prosecution of the offence defined in the first paragraph shall be initiated upon a complaint.”

Violation of human dignity by abuse of office or official duties, section 270

“An official exercising his office who, by abuse of his office or official duties, treats another person badly, insults him, inflicts minor bodily harm upon him or otherwise treats him in such a way as to affect his human dignity, shall be sentenced to imprisonment for not more than three years.”

Unlawful deprivation of liberty, section 143

“(1) Whoever unlawfully incarcerates another person or keeps him incarcerated or otherwise deprives him of the freedom of movement shall be sentenced to imprisonment for not more than one year.

(2) If the offence under the preceding paragraph is committed by an official through the abuse of office or of official authority, such an official shall be sentenced to imprisonment for not more than three years.

Obstructing an official in the course of his duties, section 302

“(1) Whoever, by force or threat of imminent use of force, prevents an official from performing an official act, which he intended to perform within the scope of his official duties, or whoever in the same manner compels an official to perform an official act, shall be sentenced to imprisonment for not more than two years.

(4) Whoever commits the offence under the first or third paragraphs of the present section against an official exercising a task of national or public security, pursuing the perpetrator of a criminal offence or guarding a detained person, shall be sentenced to imprisonment for not more than five years.”

Criminal proceedings in Slovenia are regulated by the Criminal Procedure Act (Zakon o kazenskem postopku, Official Gazette no. 63/94; hereinafter referred to as the “CPA”) and based on the principles of legality and officialness; the prosecution is mandatory when reasonable suspicion (utemeljeni sum) exist that a criminal offence, subject to mandatory prosecution, has been committed. Section 20 of the CPA provides:

“The public prosecutor shall be obliged to institute criminal proceedings if there is a reasonable suspicion that a criminal offence subject to mandatory prosecution has been committed, unless provided otherwise by the present Act.”

Public prosecutions are conducted by the public prosecutor’s office, an autonomous body within the justice system (Article 135 of the Constitution of the Republic of Slovenia, Ustava Republike Slovenije, Official Gazette no. 33/91). However, when the public prosecutor dismisses the criminal complaint or drops the prosecution at any time during the proceedings, the aggrieved party has the right to take over the proceedings in the capacity of a subsidiary prosecutor (subsidiarni tožilec); that is as an aggrieved party acting as a prosecutor (CPA, section 19/3). A subsidiary prosecutor has, in principle, the same procedural rights as the public prosecutor, except those vested with the public prosecutor as an official authority (CPA, section 63/1). If the subsidiary prosecutor takes over the proceedings, the public prosecutor is entitled at any time pending the conclusion of the main hearing, to resume management of the prosecution (CPA, section 63/2). In reality, however, the 2002 statistics show that out of approximately five hundred cases initiated by subsidiary prosecutors at a number of first-instance courts between 1997 and 2002 most were either still pending or had ended in favour of the accused; in eleven cases the accused was convicted and in seven cases the proceedings were handed over to the public prosecutor (see paragraph 72 below).

Slovenian criminal proceedings are divided into three stages – preliminary proceedings (predkazenski postopek), conducted by the police and the public prosecutor; criminal investigation (preiskava), conducted by the investigating judge of the district court, and trial (glavna obravnava), conducted before mixed panels of professional judges and lay-judges at district court level or a single professional judge of the local court. Proceedings falling under the jurisdiction of local courts (offences punishable by a fine or imprisonment of not more than three years) are summary proceedings (skrajšani postopek), which do not include the stage of a criminal investigation.

Preliminary proceedings are initiated either upon a criminal complaint lodged by any person with the police or the public prosecutor (CPA, section 147) or upon the police or the public prosecutor being informed by any means whatsoever of a situation that gives rise to “reasons for suspicion” (razlogi za sum), i.e. less than reasonable suspicion, that an offence which is subject to mandatory prosecution has been committed. In this respect, paragraph 1 of section 148 of the CPA provides:

“If there are reasons for suspicion that a criminal offence subject to mandatory prosecution has been committed, the police shall be obliged to take steps necessary for pursuing the perpetrator, ensuring that the perpetrator or his accomplice do not go into hiding or flee, discovering and securing traces of crime or objects of value as evidence, and collecting all information that may be useful for the successful management of criminal proceedings.”

In addition, paragraph 2 of section 161 of the CPA reads as follows:

“If the public prosecutor is unable to infer from the criminal complaint whether the allegations contained in it are probable, or if information in the criminal complaint does not provide sufficient basis to request investigation, or if the public prosecutor has only been informed about a criminal offence and, in particular, if the perpetrator is not known, the public prosecutor may request the police to collect the necessary information which he cannot collect himself or through other agencies and to take other measures in order to discover the criminal offence and the perpetrator (sections 148 and 149). The public prosecutor shall be entitled to ask the police at any time to notify him of what they have undertaken and they shall be under an obligation to reply without delay.”

In the preliminary proceedings, most of the activities are carried out by the police, who, like the public prosecutor, do not have discretion as to whether to act (CPA, section 148), i.e. they must pursue the investigation ex-officio. However, it is the public prosecutor’s statutory right and duty to ensure that the facts are sufficiently investigated in order to decide whether or not there should be a prosecution (CPA, sections 20, 45 and 161/2).

If the evidence from the criminal complaint is inconclusive or if the perpetrator is not identified, the public prosecutor may request the police to collect further necessary information and report back to him or her on the results (CPA, section 161/2, above). When, even after such additional measures were taken, the public prosecutor concludes that there is no reasonable suspicion (utemeljeni sum) that a specific person committed a criminal offence or the perpetrator cannot be identified, the criminal complaint must be dismissed (CPA, section 161/4). Following the dismissal of the criminal complaint, the public prosecutor must within eight days notify the aggrieved party of the dismissal (CPA, section 161/1).

Conversely, when the standard of reasonable suspicion is satisfied, the investigating judge, upon the request of the public prosecutor or subsidiary prosecutor, opens a criminal investigation into the alleged criminal offence (CPA, sections 167 and 186). The prosecutor’s request for investigation must specify, inter alia, the person against whom an investigation is requested (CPA, section 168). The investigation is conducted only for the criminal offence and only against the accused specified in the investigating judge’s decision opening the investigation. However, if during the investigation a suspicion is raised of another criminal offence or of another suspect, the investigating judge must notify the public prosecutor thereof. Paragraph 2 of section 175 of the CPA provides as follows:

“If, in the course of investigation, it appears that the proceedings should be expanded to cover another criminal offence or an offence against another person the investigating judge shall notify the public prosecutor accordingly. In this case investigative acts that call for urgent attention may be performed and the public prosecutor should be informed of everything that has been done.”

The investigating judge may at any time during the investigation terminate the proceedings if he determines that the act under investigation is not a criminal offence or if there is not enough evidence that the accused has committed a criminal offence (CPA, section 181).

At the end of investigation, when the investigating judge decides that a case has been investigated to the extent that an indictment can be made out, he must send the case-file to the public prosecutor (CPA, section 184). Before doing that he must eliminate from the case-file all contaminated evidence (exclusionary rule). He must also eliminate from the file all information obtained by the police directly from the accused and from certain other persons in the preliminary proceedings: such information is denied the status of legitimate evidence and cannot constitute the basis of the indictment or the judgment (CPA, section 83).

In summary proceedings before a local court, the criminal proceedings start with the bill of indictment (obtožni predlog, CPA, section 430) submitted by the prosecutor. The bill of indictment has to include the name and surname of the defendant, with his personal data if known, and a description of the criminal offence (CPA, section 434). Before lodging the bill of indictment, the public prosecutor or subsidiary prosecutor can request the judge to perform individual investigative measures (CPA, section 431).

Article 26 of the Slovenian Constitution provides:

“Everyone has the right to compensation for damage caused through unlawful actions in connection with the performance of any function or other activity by a person or body performing such function or activity under state authority, local community authority or as a bearer of public authority. Any person having sustained damage also has the right, in accordance with the law, to demand compensation directly from the person or body that has caused the damage.”

The compensation claim may be pursued in civil litigation. In these proceedings, the courts are bound by the final criminal court’s judgment of conviction but only in so far as the existence of the criminal offence and criminal liability are concerned (section 12 of the Civil Procedure Act, Zakon o pravdnem postopku, SFRJ Official Gazette no. 4-37/77 with amendments, valid until 14 July 1999). In addition, the aggrieved party may lodge his compensation claim within the on-going criminal proceedings against the perpetrator (premoženjsko-pravni zahtevek, sections 100-111 of the CPA).

The statistical overview provided by the Government in their observations of 2 April 2002 shows that out of all registered civil claims submitted by aggrieved persons who had been injured during police procedures prior to 2002, forty-nine civil claims had been settled or withdrawn and sixty-seven civil claims were still pending. As to the first group of cases, the statistics are inconclusive; sixteen cases were transferred to the State Attorney Office (državno pravobranilstvo) and fifteen were settled during the preliminary proceedings. However, no information is provided as to their outcome. As to the remainder of the first group of cases, one case was settled out of court, two discontinued, five cases were decided against the plaintiff and five claims were wholly or partly upheld. In five cases no information as to the stage of proceedings or their outcome has been provided.

On 6 July 2006 the Constitutional Court (Ustavno sodišče) delivered a decision in a case concerning a person who had died during a planned police operation and alleged interference with several constitutional rights of the deceased and his wife. The Constitutional Court found a violation of the right to the effective protection of human rights, as provided by Article 15 of the Slovenian Constitution, taken together with Article 13 of the Convention, on account of a failure by the authorities to conduct an independent investigation into the incident. The Constitutional Court established (paragraph 33 of the decision):

“Article 15 paragraph 4 of the Slovenian Constitution should be interpreted so as to include also a right to independent investigation of the circumstances of an incident where a person was allegedly subject to torture or inhuman or degrading treatment by the police (državni represivni organi) or where he or she lost his or her life during a police operation. The aforementioned right includes also the effective access of aggrieved parties to such investigation. Despite the fact that Article 15 paragraph 4 of the Constitution secures the right to judicial protection of human rights, it suffices in the situations concerned, according to the (aforementioned) jurisprudence of the European Court of Human Rights in respect of Article 13 of the Convention, that the investigation is conducted outside of judicial proceedings under the condition that it is independent and provides for the effective access of aggrieved parties.”


The applicant is a Dutch national, born in 1950, and living in Calpe, Spain. He is represented before the Court by Mr G.H.J. Dolk, a lawyer practising in Rotterdam, the Netherlands.

A.

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

The applicant was working as a general practitioner in Dirksland, the Netherlands, when, on 1 February 1994, two Regional Public Health Inspectors (Geneeskundig Inspecteurs van de Gezondheidszorg) filed a complaint against him with the Board for the Adjudication in First Instance of Cases concerning the Medical Code of Practice of The Hague (College voor de beslissing in eerste aanleg in zaken van het Medisch Tuchtrecht - hereinafter referred to as ‘Medical Disciplinary Board’). In the complaint it was alleged that the applicant had reserved for his own use opiates he had prescribed to patients, had administered medication for other than the usual purposes and had carried out surgical operations not customarily performed by general practitioners.

Following two hearings the Medical Disciplinary Board decided on 31 August 1994 that the complaints brought by the Inspectors were well-founded. The applicant was disqualified from practising medicine.

The applicant filed an appeal with the Hague Court of Appeal (Gerechtshof) which was rejected on 6 April 1995 after which the applicant lodged an appeal in cassation with the Supreme Court (Hoge Raad).

The Supreme Court examined the appeal on 8 September 1995. On 5 December 1995 the Advocate General (Advocaat-Generaal) at the Supreme Court submitted his advisory opinion proposing that the appeal in cassation be rejected. This advisory opinion was sent to the applicant’s representative the next day. Counsel for the applicant did not submit comments in reply to the opinion of the Advocate General.

The Supreme Court rejected the appeal in cassation on 19 January 1996.

B. Relevant domestic law and practice

The duties and position of the Procurator General’s department (openbaar ministerie) are defined in the Judiciary (Organisation) Act (Wet op de rechterlijke organisatie).

The Procurator General’s department consists of the Procurator General and advocates general at the Supreme Court, the procurators general and advocates general at the Courts of Appeal and the public prosecutors at the Regional and District Courts (Article 3 § 1 of the Judiciary (Organisation) Act). The advocates general at the Supreme Court act as deputies of the Procurator General at that court and are subordinate to him (Articles 3 § 2, 5a and 6 § 1).

The Procurator General’s department must be heard by the courts in so far as the law so prescribes (Article 4). In the instant case and at the relevant time, Article 96 § 3 of the Regulations Governing the Medical Code of Practice And The Resolution of Disputes (Reglement medisch tuchtrecht en oplossing van geschillen) provided for the hearing of the Procurator General. The advisory opinion of the Procurator General or an advocate general at the Supreme Court takes the form of a learned treatise containing references to relevant case-law and a recommendation, which is not binding on the Supreme Court, to uphold or reject points of appeal.

According to Article 328 § 1 of the Code of Civil Procedure (Wetboek van Burgerlijke Rechtsvordering) neither the parties nor their representatives are allowed to address the court after the Procurator General’s department has presented its opinion (Article 328 § 1 in conjunction with Article 326 of the Code of Civil Procedure). However, pursuant to Article 328 § 2 simple notes (eenvoudige aantekeningen) contesting facts which they believe have been presented incorrectly by the Procurator General’s department may be submitted to the President of the court by the parties or their representatives. In the case law of the Supreme Court such “simple notes” have been defined as notes limited to the pointing out of obvious errors which should in all reasonableness be considered beyond discussion (see, for example, the Supreme Court decisions of 17 March 1989 and 4 October 1991, in Nederlandse Jurisprudentie (NJ) 1989, no. 475, and 1991, no. 820 respectively).

The Court’s judgment in the case of Borgers v. Belgium (judgment of 30 October 1991, Series A no. 214-B), and in particular its consequences for national practice, received considerable attention in Netherlands legal literature. In an interview published in Nederlands Juristen Blad (NJB) of 19 December 1991 (no. 45/46, pp. 1819-1820) the then Procurator General at the Supreme Court, J. Remmelink, stated that in his opinion the Borgers judgment, which concerned criminal proceedings, did not necessitate any changes to the practice of the civil division of the Supreme Court. In a reaction to this interview, J. de Boer argued that the Court’s reasoning in the Borgers judgment should be equally valid in civil proceedings (NJB 12 March 1992, no. 11, pp. 358-359).

Shortly after the Borgers judgment it became customary, in criminal proceedings, to give the accused the opportunity to respond to the advisory opinion issued by the Procurator General or advocates general at the Supreme Court. Following an amendment to the Code of Criminal Procedure (Wetboek van Strafvordering), this practice is now set out in Article 439 of the Code of Criminal Procedure. According to Article 439 § 4, an appellant in cassation in criminal proceedings may submit written comments in reply within two weeks after the transmission of the advisory opinion to him or her.

In respect of civil proceedings, the Supreme Court held in a judgment of 22 September 1995 (Rechtspraak van de Week 1995, no. 182 and NJ 1997, no. 418) that a second written reply to the Advocate General’s advisory opinion had to be set aside as it was contrary to the principle of due process to react to such an opinion twice.

In a case leading to a judgment of 28 March 1997 the Supreme Court considered that it was free to take cognisance of comments submitted in response to the opinion issued by the Procurator General’s department by one of the parties unless this ran counter to the requirements of due process, seen also in light of the interests of the other party (NJ 1997, no. 581).

A similar reasoning was adopted by the Supreme Court in a judgment of 12 September 1997 (NJ 1998, no. 687), in which the Supreme Court, referring to the Court’s judgment in the case of Vermeulen v. Belgium (judgment of 20 February 1996, Reports of Judgments and Decisions 1996-I), held that:

<Translation>

“… where Article 328 [of the Code of Civil Procedure] prevents parties from responding to the advisory opinion of the public prosecution department as they see fit, it should be deemed inapplicable as being incompatible with the provisions of Article 6 of the Convention, as interpreted in the case-law of the European Court of Human Rights (cf. European Court, 20 February 1996, European Court Reports 1996-I, p. 224 ff). No restrictions other than those arising from due process, for instance in connection with the interests of the other party, apply to this document [i.e. the reply to the advisory opinion of the public prosecution department].”

In order to observe the principle of due process, the Supreme Court allows a period of two weeks for the response to the advisory opinion of the Procurator General’s department.


The applicant, Mr Janusz Koral, is a Polish national who was born in 1953 and lives in Opinogόra, Poland.

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

On an unspecified date in 1989 criminal proceedings were instituted against J.K., the applicant's neighbour who assaulted and seriously injured him.

The applicant joined the proceedings before the Ciechanów District Court (Sąd Rejonowy) as a civil party and lodged a claim for compensation against the defendant (powództwo adhezyjne). He also participated in them as the so-called “auxiliary prosecutor” (oskarżyciel posiłkowy).

The proceedings were terminated on 25 June 2002. On 12 February 1999, the date on which the application was lodged with the Court, they were pending before the Warsaw Regional Court (Sąd Okręgowy).

On 17 September 2004 the Law of 17 June 2004 on complaints about a breach of the right to a trial within a reasonable time (Ustawa o skardze na naruszenie prawa strony do rozpoznania sprawy w postępowaniu sądowym bez nieuzasadnionej zwłoki) (“the 2004 Act”) entered into force. It lays down various legal means designed to counteract and/or redress the undue length of judicial proceedings.

Section 2 of the 2004 Act reads, in so far as relevant:

Section 5 reads, in so far as relevant:

“1. A complaint about the unreasonable length of proceedings shall be lodged while the proceedings are pending. ...”

Section 12 provides for measures that may be applied by the court dealing with the complaint. It reads, in so far as relevant:

“1. The court shall dismiss a complaint which is unjustified.

If the court considers that the complaint is justified, it shall find that there was an unreasonable delay in the impugned proceedings.

At the request of the complainant, the court may instruct the court examining the merits of the case to take certain measures within a fixed time-limit. Such instructions shall not concern the factual and legal assessment of the case.

If the complaint is justified the court may, at the request of the complainant, grant ... just satisfaction in an amount not exceeding PLN 10,000 to be paid by the State Treasury. If such just satisfaction is granted it shall be paid out of the budget of the court which conducted the delayed proceedings.”

Section 18 lays down transitional rules in relation to the applications already pending before the Court. It reads, in so far as relevant:

“1. Within six months after the date of entry into force of this law persons who, before that date, had lodged a complaint with the European Court of Human Rights ... complaining of a breach of the right to a trial within a reasonable time guaranteed by Article 6 (1) of the Convention for the Protection of Human Rights and Fundamental Freedoms ..., may lodge a complaint about the unreasonable length of the proceedings on the basis of the provisions of this law if their complaint to the Court had been lodged in the course of the impugned proceedings and if the Court has not adopted a decision concerning the admissibility of their case.

On 18 January 2005 Supreme Court (Sąd Najwyższy) adopted a resolution (no. III SPP 113/04) in which it ruled that while the 2004 Act produced legal effects as from the date of its date of entry into force (17 September 2004), its provisions applied retroactively to all proceedings in which delays had occurred before that date and had not yet been remedied.


Violation of P1-1;Violation of Art. 6-1;Pecuniary damage - financial award;Non-pecuniary damage - financial award;Costs and expenses partial award - domestic proceedings;Costs and expenses partial award - Convention proceedings

The applicants were respectively born in 1938, 1943 and 1948 and live in Rome.

The applicants' father was the owner of a flat in Rome, which he had let to C.C.

In a writ served on the tenant on 24 January 1984, the applicants' father informed the tenant that he intended to terminate the lease on expiry of the term and summoned him to appear before the Rome Magistrate.

By a decision of 17 April 1984, which was made enforceable on 2 May 1984, the Rome Magistrate upheld the validity of the notice to quit and ordered that the premises be vacated by 16 April 1985.

On 10 March 1985, the applicants' father served notice on the tenant requiring him to vacate the premises.

On 3 April 1987, the applicants' father served notice on the tenant informing him that the order for possession would be enforced by a bailiff on 12 May 1987.

On 14 February 1992, the applicants' father died and they inherited the flat. Subsequently they became parties to the eviction proceedings.

Between 12 May 1987 and 15 February 2000, the bailiff made fifty-seven attempts to recover possession. Each attempt proved unsuccessful, as neither the applicants' father nor themselves were entitled to police assistance in enforcing the order for possession.

On an unspecified date in February 2000, reaching an agreement with the tenant, the applicants recovered possession of the flat.

Since 1947 the public authorities in Italy have frequently intervened in residential tenancy legislation with the aim of controlling rents. This has been achieved by rent freezes (occasionally relaxed when the Government decreed statutory increases), by the statutory extension of all current leases and by the postponement, suspension or staggering of the enforcement of orders for possession. The relevant domestic law concerning the extension of tenancies, the suspension of enforcement and the staggering of evictions is described in the Court's judgment in the case of Immobiliare Saffi v. Italy [GC], no. 22774/93, §§ 18-35, ECHR 1999-V. Lastly, a suspension of the enforcement of the orders for possession until 30 June 2004 was introduced by Legislative Decree no. 147 of 24 June 2003, which became Law no. 200 of 1 August 2003.

As regards the control of the rents, the evolution of the Italian legislation may be summarised as follows.

The first relevant measure was the Law no. 392 of 27 July 1978 which provided machinery for “fair rents” (the so-called equo canone) on the basis of a number of criteria such as the surface of the flat and its costs of realisation.

The second step of the Italian authorities dated August 1992. It was taken in the view of progressive liberalisation of the market of tenancies. Accordingly, a legislation relaxing on rent levels restrictions (the so-called patti in deroga) entered into force. Owners and tenants were in principle given the opportunity to derogate from the rent imposed by law and to agree on a different price.

Lastly, Law no. 431 of 9 December 1998 reformed the tenancies and liberalised the rents.

The tenant is under a general obligation to refund the owner any damages caused in the case of late restitution of the flat. In this regard, Article 1591 of the Italian Civil Code provides:

“The tenant who fails to vacate the immovable property is under an obligation to pay the owner the agreed amount until the date when he leaves, together with other remaining damages.”

However, Law no. 61 of 1989 set out, inter alia, a limit to the compensation claimable by the owner entitling him to a sum equal to the rent paid by the tenant at the time of the expiration of the lease, proportionally increased according to the cost of living (Article 24 of Law no. 392 of 27 July 1978) plus 20%, along the period of inability to dispose of the possession of the flat.

In the judgment no. 482 of 2000, the Constitutional Court was called upon to decide whether such a limitation complied with the Constitution. The Constitutional Court held that it was compatible with the Constitution with regard to periods of time during which the suspension of the evictions was determined by law. The Constitutional Court explained that the introduction of that limitation was intended to settle the tenancies of the time of the emergency legislation, when the housing shortage made the suspension of the enforcement necessary. While evictions were suspended ex lege, the law predetermined the quantum of the reimbursement chargeable to the tenant, both measures being temporary and exceptional. Besides, the interests of the owner were counterbalanced by the exemption for him from the burden to prove the damages.

The Constitutional Court declared the limitation to the compensation claimable by the owner unconstitutional with regard to cases where the impossibility for the owner to repossess the flat depended on the conduct of the tenant and was not due to a legislative intervention. Accordingly, it opened the way to owners for the institution of civil proceedings in order to obtain full reparation of the damages caused by the tenant.


The applicant, Mr Paul Vorwald, is a German national, who was born in 1926 and lives in Bad Endorf, Germany. He is represented before the Court by Mr Boris Kozjak, a lawyer practising in Virovitica, Croatia. The respondent Government are represented by their Agent Ms Lidija Lukina-Karajković.

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

During the night of 6 to 7 February 1993 a group of eight accomplices burglarised the applicant’s houses in the Naudovac village in Croatia.

On 18 April 1994 the applicant filed a civil action against the perpetrators before the Virovitica Municipal Court (Općinski sud u Virovitici), seeking damages for his destroyed and stolen property.

Before the period to be examined by the Court (i.e. before 5 November 1997 when the Convention entered into force in respect of Croatia) the court of first instance held two hearings.

The hearing scheduled for 10 February 1998 was adjourned because the defendants did not appear. However, the court heard the applicant.

The hearing scheduled for 12 May 1998 was adjourned because a witness did not appear.

At the hearing of 25 June 1998 the court heard five defendants.

The hearing scheduled for 22 September 1999 was adjourned because three defendants did not appear.

At the next hearing on 13 October 1999 the court heard one witness.

The case was then transferred to another judge.

On 5 October 2000 the court invited the applicant to pay an advance for the costs of an expertise.

On 15 February 2001 the applicant paid the advance.

On 11 June 2001 the court carried out an on the spot investigation of the damages on the applicant’s house together with an expert.

On 21 August 2001 the appointed expert submitted his expertise to the court.

On 28 August 2001 the court sent the expertise to the parties.

On 31 August and 11 September 2001 the applicant and the defendants, respectively, informed the court that they had no objections to the expertise submitted.

On 4 January 2002 the court invited the applicant to adjust his claim with the results of the expertise.

The next hearing scheduled for 27 February 2002 was adjourned because a witness did not appear.

At the next hearing on 29 March 2002 the applicant specified his claim.

On 5 April 2002 the court of first instance pronounced its judgment.

On 2 and 3 July 2002 the applicant and five defendants, respectively, appealed against the judgment.

It appears that the proceedings are presently pending before the appellate court.

The relevant parts of Section 63 of the Constitutional Act on the Constitutional Court (entered into force on 15 March 2002, published in the Official Gazette no. 49 of 3 May 2002 - hereinafter “the 2002 Constitutional Act on the Constitutional Court” - Ustavni zakon o Ustavnom sudu Republike Hrvatske iz 2002) read as follows:

(1) The Constitutional Court shall examine a constitutional complaint even before all legal remedies have been exhausted in cases when a competent court has not decided within a reasonable time a claim concerning the applicant’s rights and obligations or a criminal charge against him ...

(2) If the constitutional complaint ... under paragraph 1 of this Section is accepted, the Constitutional Court shall determine a time-limit within which a competent court shall decide the case on the merits...

(3) In a decision under paragraph 2 of this Article, the Constitutional Court shall fix appropriate compensation for the applicant in respect of the violation found concerning his constitutional rights ... The compensation shall be paid from the State budget within a term of three months from the date when the party lodged a request for its payment.


Mirjana Lazarova Trajkovska;Rait Maruste;Zdravka Kalaydjieva

The applicant was born in 1957 and lives in Kharkiv.

On 20 April 1999 the applicant lodged a claim with the Kominternivskyy District Court of Kharkiv (“the Kominternivskyy Court”) against her brother. She sought the annulment of her father’s will.

On 26 November 2001 the Kominternivskyy Court left the claim without examination because the parties had failed to attend.

On 14 January 2002 the applicant lodged the same claim with the Kominternisvkyy Court. On the same date the court allowed the applicant’s request for securing the claim and seized the respondent’s property.

On 24 November 2008 the Kominternivskyy Court rejected the applicant’s claims as unsubstantiated.

On 12 December 2008 the applicant appealed against the judgment. On 12 January 2009 the Khrakiv Regional Court of Appeal left the appeal without examination as lodged out of time.

On 12 August 2009 the Supreme Court allowed the applicant’s appeal in cassation, which she had to resubmit on one occasion in order to comply with procedural requirements, quashed the decision of 12 January 2009 and sent the case for examination to the Court of Appeal.

On 14 October 2009 the Kharkiv Regional Court of Appeal examined the applicant’s appeal on the merits, after she had rectified certain shortcomings in her appeal. The court of appeal quashed the judgment of 24 November 2008, finding that the case had not been duly examined by the first-instance court and remitted the case for fresh examination.

The case is currently pending before the first-instance court.

In the course of the proceedings before the first-instance court, on 1 June 2004 and 15 March 2006 the applicant supplemented her claims. There were three expert examinations ordered on the applicant’s request and the proceedings were accordingly suspended for a total period of approximately eight months. The hearings were adjourned twenty-two times because of the applicant’s failure to appear or on her requests. On thirty-two occasions the hearings were adjourned because of the other participants’ failure to appear and of the judge’s absence or for technical reasons.


Preliminary objection dismissed (non-exhaustion of domestic remedies);No violation of Art. 5-1-c;Violation of Art. 5-3;Violation of Art. 5-4;Violation of Art. 5-5;Non-pecuniary damage - award

András Sajó;Antonella Mularoni;Françoise Tulkens;Ireneu Cabral Barreto;Nona Tsotsoria;Vladimiro Zagrebelsky

The applicant was born in 1968 and lives in Pančevo, Serbia.

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

On 16 November 2003, the applicant was stopped and searched by a police officer at the main bus station in Belgrade and a packet containing 4.13 grams of cannabis was found on his person.

He was then taken to a police station but was released after a short period of time. Whilst in custody, an on-duty police officer issued a receipt confirming seizure of the cannabis in question (potvrda o privremeno oduzetim predmetima). This receipt was signed by the applicant and the officer and contained the applicant’s registered home address – M.K. Street no. 32, Pančevo.

In a subsequent incident report of the same date, however, the officer appears to have made a mistake by stating that the applicant’s address was M.K. Street no. 30 rather than no. 32. This report was neither seen nor signed by the applicant.

Having found his number in a telephone directory, on 6 July 2004 the police contacted the applicant’s father by telephone. He in turn informed the applicant that the police were looking for him. The applicant subsequently called the police and was told that he needed to come to the station in order to pick up the court summons. Upon arrival at the station, he was arrested and placed in detention.

It subsequently became clear that a detention order had been issued by the District Court (Okružni sud) in Belgrade on 29 June 2004, as part of the criminal proceedings brought against the applicant regarding the cannabis seizure of 16 November 2003. In its reasoning, the court first explained that the applicant had not appeared at the hearing scheduled for 17 March 2004 and noted that the return receipt attached to its summons had stated that he “was unknown at M.K. Street no. 30”. Secondly, the applicant had failed to appear at the following hearing scheduled for 20 May 2004 and the police, who had been ordered to serve the summons, had reported on 20 April 2004 that a neighbour had confirmed that the applicant had not been living at the address in question since 1999. Thirdly, on 20 April 2004 the police had also run a search in their database and had made additional inquiries, confirming that, as of 1986, the applicant’s registered residence was indeed M.K. Street no. 30, but could not discover any information concerning his current whereabouts. Finally, the court concluded that there was a sufficient factual basis to indicate that the applicant was hiding and/or in flight and had therefore ordered his detention. (It must, however, be noted that the neighbour’s statement and the original police report of 20 April 2004 were cited erroneously by the District Court and that in fact both had referred to M.K. Street no. 32 only, as the applicant’s registered residence, there being no mention of M.K. Street no. 30.)

On 29 June 2004 the District Court had also adopted a separate decision requesting the police to issue a wanted notice (poternica) and arrest the applicant. Therein the applicant’s address had again been stated as M.K. Street no. 30.

Various other documents successively referred to both addresses. Thus the District Court’s letter sent to the police on 20 May 2004 referred to M.K. Street no. 32 while all court summonses, the criminal complaint of 11 December 2003 (krivična prijava) and the indictment (optužni predlog) of 26 December 2003 consistently stated the applicant’s address as M.K. Street no. 30.

Throughout this time the applicant’s identity card, issued by the police on 30 August 2000, and his residence registration remained unchanged, stating his address as M.K. Street no. 32, Pančevo.

On 7 July 2004 the applicant’s lawyer filed an appeal by telegram against the District Court’s detention order of 29 June 2004. Therein he stated that the applicant had never lived at M.K. Street no. 30 and pointed out that his registered residence was in fact M.K. Street no. 32. The applicant consequently had no knowledge of the criminal proceedings against him; nor could he have deliberately avoided receiving the court summons.

On 8 July 2004 the applicant’s lawyer supplemented this appeal with additional written arguments requesting that the impugned detention order be revoked and his client released. In particular, he noted that the applicant had gone to the police station “of his own free will” as soon as he had found out that they were looking for him. Upon arrival at the police station, he had been arrested and it was then that he had first found out about the criminal charges against him.

On 12 July 2004 the Supreme Court (Vrhovni sud Srbije) rejected the appeal. It did so without an oral hearing. In its ruling the Supreme Court affirmed the reasons for detention given by the District Court and further held that there was no evidence in the case file that the applicant’s correct address was indeed M.K. Street no. 32. On the contrary, police reports suggested that “the applicant’s residence throughout the proceedings had remained unknown”.

On 14 July 2004 this decision was received by the applicant’s lawyer.

On 16 July 2004 he filed a motion with the District Court, seeking the applicant’s release on bail or, alternatively, that his detention be replaced with a prohibition on leaving his place of residence until the conclusion of the criminal proceedings. The lawyer further noted that the applicant’s detention had been ordered due to the court’s error in the establishment of his true home address and concluded by requesting that a hearing in the case be scheduled urgently.

The District Court appears not to have considered this motion.

Following a hearing on 26 July 2004, the District Court found the applicant guilty of illicit possession of narcotics and fined him in the amount of 10,000 Serbian dinars (at the time approximately 128 euros).

In a separate decision of the same date the District Court released the applicant from detention. It held, inter alia, that “the current phase of the criminal proceedings had been completed” and that “the defendant had provided correct information about his present address”.

On 24 September 2004 the applicant filed a complaint with the Court of Serbia and Montenegro (Sud Srbije i Crne Gore).

Following the communication of the present application to the respondent State, the Government produced two signed witness statements, taken by the police on 23 January 2006, wherein the applicant’s neighbours, both residing at M.K. Street no. 32, confirmed that the applicant had indeed not been living there for years. One of them further specified that he had already told the police as much in April 2004, while the other recalled that the applicant had not been living at the address in question since 1999.

Articles 10 and 16, taken together, stated that the “provisions of international treaties on human and minority rights applicable in ... [the State Union of] ... Serbia and Montenegro shall be directly enforceable” and, further, that “the ratified international treaties” shall “have precedence” over domestic legislation.

Article 7 provided that “international treaties in force in the State Union [of Serbia and Montenegro] shall be guaranteed by this Charter and be directly applicable”.

Article 14 § 8 provided that a person “who has been deprived of his liberty unlawfully [nezakonito lišen slobode] shall have the right to compensation”.

Article 23 § 4 provided, inter alia, that a person who has been deprived of his liberty, “without any basis [bez osnova] ... shall have the right to ... compensation ...”.

The relevant provisions of this Code provide as follows:

“The courts, as well as State bodies taking part in the criminal proceedings, shall establish truthfully and comprehensively all facts which are of importance for the adoption of a lawful decision.

The courts and State bodies shall examine and establish with equal care facts which incriminate the defendant, as well as those in his favour.”

“First instance courts sit in a panel of three judges [“Judicial Panel”] when deciding on appeals against rulings of the investigating judge and other rulings when it is so prescribed by this Code ... ”

“The ... [defendant’s participation in the criminal proceedings may be secured by means of sending] ... summonses, his forcible production in court, the issuance of a prohibition of his leaving his place of residence, [as well as] through the imposition of bail or detention.

The competent court shall ... [attempt not to apply] ... a more severe measure ... [in order to secure the defendant presence] ... if a less severe measure may achieve the same purpose.

These measures shall be vacated ex officio when the reasons for their application have ceased to exist, or shall be replaced with other less severe measures once the conditions are met.”

“The defendant is obliged to immediately inform the court of any change of address, as well as of his intent to change his abode. The defendant shall be informed of this obligation at his first hearing ... [or] ... upon receipt of the indictment ... and warned about the consequences ... [of any non-compliance] ... provided for under the Code.”

“ ... [The court shall order the forcible production of the defendant before it if the defendant] ... could not be properly summoned and it is obvious from the facts that he has been avoiding receipt [of court summonses].”

“If there are circumstances indicating that the defendant might abscond, hide, go to an unknown place or abroad, the court may, by a reasoned decision, prohibit him from leaving his place of residence.

In the course of the [judicial] investigation the [measure] referred to in [paragraph 1] ... of this Article shall be ordered and vacated by the investigating judge, and when the indictment is preferred by the President of the Chamber.

Parties may appeal the ruling ordering, extending or vacating ... [the said measure] ... and the Public Prosecutor may also appeal the ruling rejecting his motion for [its] application. The Judicial Panel ... shall decide on the appeal ... [within a period of three days] ... The appeal does not stay the execution of the ruling.

“The defendant who is to be or has already been detained based only on circumstances indicating that he will abscond ... may remain at large or may be released providing that he personally, or another person on his behalf, gives bail guaranteeing that he shall not abscond until the conclusion of the criminal proceedings and the defendant himself promises that he shall not hide or change his place of residence without permission.”

“The decision on bail before and in the course of a [judicial] investigation shall be rendered by the investigating judge. After the indictment is preferred the decision on bail shall be rendered by the President of the Chamber and [subsequently] at the main hearing by the Chamber itself.”

“Detention may be ordered only in accordance with the conditions provided by this Code and only if the same purpose cannot be achieved by another measure.

The authorities taking part in the criminal proceedings ... are bound to proceed with particular urgency if the defendant is in detention.

In the course of the ... proceedings, detention shall be vacated as soon as the grounds therefor have ceased to exist.”

“Detention shall be ordered by a decision of the competent court.

A decision on detention shall be served on the person to whom it relates at the moment of his deprivation of liberty, but no later than within 24 hours ... [as of this moment] ...

A detained person may file an appeal against the decision on detention with the Judicial Panel within 24 hours as of the moment of its receipt. The appeal, the decision on detention and other files shall immediately be forwarded to the Judicial Panel. The appeal shall not stay the execution of the [impugned] decision.

In the situation referred to ... [above,] ... the Judicial Panel shall rule on the appeal within 48 hours.”

“Against decisions [rešenja] ... adopted by courts acting at first instance, the parties and persons whose rights have been breached may file an appeal, unless this Code expressly provides that an appeal shall not be permitted.

There shall be no appeal against a decision [rešenje] of the Supreme Court of Serbia, unless provided otherwise by this Code.”

“An appeal against a decision [rešenje] adopted by a court at first instance shall be decided at a session held before the court of second instance, unless provided otherwise by this Code.”

“For the purposes of unhindered conduct of the criminal proceedings [in respect of crimes punishable by a fine or imprisonment of up to three years,] detention may be ordered against a person who is under reasonable suspicion of having committed a criminal offence if:

(1) he is in hiding or his identity cannot be established or if there are other circumstances clearly indicating a danger of flight...”

“[The following persons shall be] ... entitled to recover ... [any] ... damages ... [suffered] ...

(1) [a person] who was detained but against whom no criminal proceedings were instituted, where these proceedings were discontinued by a final ruling, where ... [the person in question] ... was [ultimately] acquitted by a final judgment or where the charge against him was rejected;

(3) [a person] who due to an error committed or an unlawful action undertaken by a [State] body has been deprived of his liberty in the absence of any legal basis [neosnovano lišeno slobode] ... ”

The person requesting bail, under Article 137, “does not have to ... specify the amount of bail” to be posted (see Komentar Zakonika o krivičnom postupku, Prof. dr Tihomir Vasiljević and Prof. dr Momčilo Grubač, IDP Justinijan, Belgrade, 2005, p. 247).

Parties to the proceedings “shall not be informed about ... [the session referred to in Article 401 § 1 of the Criminal Procedure Code] .., including the State Prosecutor ... [who shall] .., prior to the session, be provided with the case file and shall submit his proposal ... [to the court] ... in writing” (see Komentar Zakonika o krivičnom postupku, cited above, pp. 705-706).

Articles 6 § 1, 8 § 1, 14 and 20 provide, inter alia, that citizens must inform the police about any change in their address, within eight days as of their moving, which information shall then be entered into an official register.

Articles 199 and 200 of the Obligations Act provide, inter alia, that anyone who has suffered fear, physical pain or, indeed, mental anguish as a consequence of a breach of his “personal rights” (prava ličnosti) is entitled, depending on their duration and intensity, to sue for financial compensation in the civil courts, as well as to request other forms of redress “which might be capable” of affording adequate non-pecuniary satisfaction.

The relevant provisions concerning the Court of Serbia and Montenegro are set out in the Matijašević v. Serbia judgment (no. 23037/04, §§ 12, 13 and 16, ECHR 2006...).


Violation of Art. 3;Violation of Art. 13;Non-pecuniary damage - financial award;Costs and expenses award

The applicant was born in 1972 and lives in Diyarbakır. He was a student at the Medical Faculty of the Diyarbakır Dicle University at the time of the events described below.

On 4 April 1997 the applicant was arrested and placed in custody by police officers from the Diyarbakır Security Directorate. He was accused of membership of an illegal organisation, the YEKBUN (Kurdistan United People’s Party).

The police officers interrogated the applicant in relation to his alleged involvement in the YEKBUN. The applicant alleged that he had been subjected to ill-treatment by the officers during the interrogation which caused an oedema, a bruised nose and a broken tooth. According to the Government, the applicant’s injuries occurred when, due to lack of sleep, he inadvertently fell and hit his nose on a sink.

On 6 April 1997 the applicant signed a statement according to which he hit his nose on a sink while washing his face. The applicant claims that he was forced to sign the statement. He was then taken to the Diyarbakır State Hospital and examined by Dr. R.C. who noted the following:

“An oedema and an ecchymosed lesion as a result of trauma have been identified on the nose.

On the same day, the applicant was brought before the Diyarbakır State Security Court. Before the court, he denied being a member of an illegal organisation. He stated that he had been subjected to various forms of illtreatment during his detention in police custody and that the statement which he had signed did not reflect the truth of what had happened to him. The court ordered his release pending trial.

On 8 April 1997 the applicant filed a criminal complaint with the chief public prosecutor’s office in Diyarbakır against the police officers who had allegedly ill-treated him. The chief public prosecutor ordered that the applicant be examined by a medical expert from the Forensic Medicine Institute. On the same day, he was examined by a forensic medical expert. The expert’s report stated the following:

There is an abrasion of 1 x 0,5 cm on the left side of the tip of the nose. Furthermore, there is a minimal fracture on the front of the 8th of the lower teeth.

There is no danger to the individual’s life. However, the injuries render him unfit for work for two days.”

On 15 April 1997 the Diyarbakır public prosecutor issued a decision of non-jurisdiction in respect of the applicant’s allegations of ill-treatment and referred the investigation file to the Diyarbakır District Administrative Council in accordance with the Law on the Prosecution of Civil Servants (Memurin Muhakematı Kanunu).

On 13 June 1997 the Diyarbakır State Security Court acquitted the applicant of the charges against him. The court took note in its judgment of the applicant’s statement that he had been interrogated by police officers under duress.

On 26 June 1997 the Diyarbakır Administrative Council decided that, due to lack of evidence, the police officers who had allegedly illtreated the applicant should not be prosecuted.

On 6 August 1997 the applicant filed an objection with the Supreme Administrative Court against the decision of the Diyarbakır Administrative Council. He also lodged a petition with the Diyarbakır Administrative Council and requested a copy of the investigation file. He received no response to his petition.

On 14 May 1999 the Supreme Administrative Court confirmed the Administrative Council’s decision of non-prosecution.

On 26 July 1999 the Supreme Administrative Court’s decision was served on the applicant.

A description of the relevant domestic law at the material time can be found in Batı and Others v. Turkey, nos. 33097/96 and 57834/00, § 96100, 3 June 2004, and Tahsin Acar v. Turkey [GC], no. 26307/95, § 186-197, 8 April 2004).