Violation of Art. 10;Not necessary to examine Art. 6-1;Non-pecuniary damage - finding of violation sufficient;Costs and expenses award - domestic proceedings;Costs and expenses partial award - Convention proceedings

The applicant is an Austrian citizen, residing in Vienna. At the relevant time she was a member of the Vienna Municipal Council (Gemeinderat), which also acts as the Regional Parliament (Landtag).

On 11 June 1992, in the course of a session of the Vienna Municipal Council, the applicant, in her function as member of the Municipal Council, gave a speech. The debate related to the granting of subsidies by the municipality to an association which assists parents whose children had become involved in sects. In this context the applicant made the following statement:

“Like everyone else, I know that today a sect no longer means a small group that breaks away from a big church ..., but a psycho-sect.

These psycho-sects also exist in Vienna. They have common features. One aspect they have in common is their totalitarian character. Moreover, in their ideology, they show fascist tendencies and often have hierarchical structures. In general, a person who gets involved with such a sect loses his identity and submits to the group ...”

After having commented on the activities of an association she considered a sect, the applicant continued as follows:

“...the sect IPM [Institut zur Förderung der Psychologischen Menschenkenntnis – Institute for a Better Understanding of Human Psychology], which has not long been in existence in Austria but which has existed for several years in Switzerland, where it is called the VPM [Verein zur Förderung der Psychologischen Menschenkenntnis – Association for a Better Understanding of Human Psychology] has had a certain influence on the drugs policy of the Austrian People’s Party.”

The applicant then stated that the Austrian People’s Party had issued a publication on drugs policy in cooperation with the IPM, and had organised information activities involving public discussions together with the IPM. The applicant then requested a resolution by the Municipal Council that, before granting subsidies to an association, the question whether that association was a sect should be examined.

The debate in the Municipal Council then turned to the drugs policy and the applicant, in a further speech, criticised the cooperation between the Austrian People’s Party and the IPM, and made further statements on the nature and activities of the IPM.

On 27 October 1992 the IPM, an association established under Austrian law, and the VPM, an association established under Swiss law, filed a civil-law action under Article 1330 of the Austrian Civil Code against the applicant with the Vienna Regional Court for Civil Matters (Landesgericht für Zivilrechtssachen). The associations requested the court to issue an injunction against the applicant prohibiting her from repeating the statement that the IPM was a sect, ordering her to retract this statement and directing the publication of the applicant’s retraction in several Austrian newspapers.

On 2 February 1993 the applicant commented on the action. She submitted that the term “sect” used by her was a value judgment and not a statement of fact. It had been used in the context of a political debate. If the court, however, was of the opinion that the term “sect” was a statement of fact, she was willing to prove that this statement was true, and proposed documentary evidence and the hearing of witnesses to confirm that the plaintiffs were sects. As documentary evidence, the applicant proposed a decision by a German court and seven articles from newspapers and periodicals on the internal structure and activities of the plaintiffs. She proposed that four witnesses be heard. She also requested that the court obtain an expert report.

On 16 February 1993 the IPM and the VPM altered their injunction claim to include the following statement made by the applicant on 11 June 1992:

“One aspect they have in common is their totalitarian character. Moreover, in their ideology, they show fascist tendencies and often have hierarchical structures. In general, a person who gets involved with such a sect loses his identity and submits to the group ...”

On 18 February 1993 the applicant confirmed that she had received the plaintiffs’ amended claim. She submitted a transcript of the session of the Vienna Municipal Council of 11 June 1992, and argued that the modification of the action merely referred to a general explanation of the term “psycho-sect” and had no direct relation to the plaintiffs. She further referred to her previous statements and the evidence proposed therein.

On 22 February 1993 a hearing took place before the Regional Court. The court accepted several documents submitted by the parties, closed the taking of evidence and rejected all requests for the taking of other evidence as irrelevant because the documents submitted had clarified the issues sufficiently.

On 8 April 1993 the Regional Court granted the injunction. It ordered the applicant not to repeat her statements that the IPM and the VPM were sects of a totalitarian character. Furthermore, the court ordered the applicant to retract these statements, the retraction to be published in several newspapers. The Regional Court found that, contrary to the applicant’s opinion, her statements were not value judgments, but statements of fact. Having regard to the statutes of the associations and other evidence before it, the Regional Court considered that the applicant’s statements had proved to be untrue. The applicant had disseminated unfounded assumptions as proven fact and had therefore acted negligently. As the damage to the plaintiff associations’ earnings and livelihood was manifest, the Court granted the requested injunction under Article 1330 § 2 of the Civil Code.

On 12 July 1993 the applicant appealed. She submitted that the Regional Court had failed to take the evidence requested by her. She contended in particular that the real activities of the plaintiffs and their (totalitarian) methods could not be seen from their statutes. In particular, the internal organisational structure (hierarchical structure), their conduct against critics (exhibiting a totalitarian character and an ideology with fascist features) and the effect on the personality of the persons concerned (loss of identity and submission to the group) should have been examined. Only a report by an expert using sociological and psychological methods, or interviews with the persons affected, could have clarified these issues. In any event, the applicant’s statements were value judgments made in the context of a political debate and not statements of fact. The injunction therefore violated her right to freedom of expression under Article 10 of the Convention.

On 16 November 1993 the Vienna Court of Appeal (Oberlandesgericht) upheld the Regional Court’s decision in so far as it concerned the prohibition on repetition, but quashed the order for a retraction and its publication.

It confirmed the Regional Court’s view that the applicant’s allegations were statements of fact. Contrary to the opinion of the Regional Court, the Court of Appeal considered that the applicant’s allegations amounted to an insult and fell not only within the scope of the second but also within the scope of the first paragraph of Article 1330 of the Civil Code. In that case, the applicant had to prove the truth of her allegations.

With regard to the applicant’s complaint that the Regional Court had refused to take the evidence she had proposed in order to prove that the plaintiffs were sects, the Court of Appeal found that such evidence was irrelevant to the proceedings. According to the Court of Appeal’s legal point of view, the applicant’s statements had to be seen as a whole. Thus, the use of the term “sect” was not decisive, but the allegation of fascist tendencies was of primary importance. This latter statement amounted to an insult going beyond justified criticism. Since the applicant had not offered any evidence with regard to this definition of a psycho-sect, but only with regard to the question whether the plaintiffs were sects, she had failed to prove its truth, as required by Article 1330 § 1 of the Civil Code. The Court of Appeal also found that the request for a retraction of the statement and its publication in several newspapers had to be dismissed because the plaintiffs had failed to specify the addressees of the retraction, even though the applicant’s statements had been reported in the newspapers.

On 18 August 1994 the Supreme Court (Oberster Gerichtshof) rejected as inadmissible the applicant’s further appeal on points of law (Revision). It confirmed, however, that the statements such as “fascist tendencies” or “totalitarian character” were statements of fact which the applicant had failed to prove. Referring to its previous case-law, it stated that disparagement by means of untrue statements, even though it was made in the course of a political debate, went beyond acceptable political criticism and could not be justified by a weighing of interests or by the right to freedom of expression.

Article 1330 of the Austrian Civil Code (Allgemeines Bürgerliches Gesetzbuch) provides as follows:

“(1) Everyone who has suffered material damage or loss of profit because of an insult may claim compensation.

(2) The same applies if anyone disseminates statements of fact which jeopardise another person’s credit, income or livelihood and if the untruth of the statement was known or must have been known to him. In such a case the public retraction of the statement may also be requested ...”

Members of the Vienna Municipal Council enjoy a limited parliamentary immunity. They are exempt from legal proceedings for anything said by them in the course of debates in the Municipal Council in so far as the Municipal Council sits as the Parliament of a Land (Articles 57, 58 and 96 of the Federal Constitution). However, this privilege does not extend to sessions of the Municipal Council sitting as the local council. The reason is that Vienna, under the Austrian Constitution, has a dual function, being at the same time a Land and a local council (Article 108 of the Federal Constitution).


Dean Spielmann;Elisabet Fura;Ganna Yudkivska;Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger

The applicant, Ms Ludmila Polednová, is a Czech national who was born in 1921 and lives in Plzeň. She was represented before the Court by Mr V. Kovář, of the Czech Bar. The respondent Government were represented by their Agent, Mr V. A. Schorm.

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

After the communist coup in February 1948, a number of political trials were conducted in former Czechoslovakia in order to consolidate the power of the Communist party and eliminate opponents of the new totalitarian regime. The State Court (Státní soud) and State Prosecutor’s Office were created for this purpose by a special law and subject to direct political control by the party. The most important trial was the 1950 trial of Ms Milada Horáková and other opponents of the communist regime for high treason and espionage, and the applicant was appointed to act as a member of the prosecutorial steering group. It was later established that the trial had been manipulated in that the issues of guilt and sentencing had been decided on by the political authorities well in advance of the trial and that the defendants had been compelled, by means of inhuman investigation techniques, to admit to offences they had not committed. The trial culminated in a State Court judgment of 8 June 1950 by which four of the defendants were sentenced to death and the others received lengthy prison sentences. After having their appeal dismissed on 24 June 1950 by the Supreme Court (Nejvyšší soud), the four persons sentenced to death were executed on 27 June 1950.

On 30 June 1968, in a climate of political détente, the Presidium of the Supreme Court quashed the convictions of 8 and 24 June 1950 following an appeal in the interests of the law lodged on behalf of those convicted. On this occasion it was found that the investigation had been carried out, using illegal methods, by investigators of the Ministry of the Interior and not by the investigating judge. It was also found that many legal provisions (in particular those of the 1983 Code of Criminal Procedure (Law no. 119/1873)) had been infringed during the trial, that the facts had not been sufficiently established, that numerous pieces of evidence had been omitted, that the defendants’ actions had been partly incited by the State Security Service and that all the relevant authorities had single-mindedly focused on fabricated charges aimed at eliminating the so-called “class enemies”. The Supreme Court therefore ordered the competent prosecutor to re-examine the case; consequently, evidence was heard from several persons who had participated in the trial with Milada Horáková. It appears from a statement made in April 1969 by one of the defendants sentenced to life imprisonment that the accused had been forced, through physical and psychological coercion, to learn their statements of evidence, which had been written beforehand, off by heart; that the confrontations at the hearing had been previously prepared in minute detail and that the minutes of the hearing had in fact been a script which determined the exact questions to be asked by the prosecutors and the answers that the defendants were expected to provide. This witness also reported that the applicant had displayed a hard and pitiless attitude.

Renewed consolidation of the communist regime in the 1970s meant that there was no further interest in investigating the case and it was discontinued in 1975 because the criminal prosecution was time-barred.

The case was not definitively settled until after the collapse of the communist regime in November 1989. On 29 June 1990 the Prosecutor General ruled that there was no case to answer in respect of all those charged. Referring to the judgment of 30 June 1968, he found that they had been wrongfully convicted of actions which were in accordance with the principles of a democratic society and that the criminal proceedings had been designed, for political ends, to arbitrarily eliminate opponents of the totalitarian dictatorship under the communist regime.

On 8 September 2005 the police questioned the applicant about her participation in the trial of Milada Horáková and others. She claimed to be unable to remember certain facts and stated that at the time she had been convinced, having trusted the judgment of the other, more experienced prosecutors and judges, that the activity concerned was designed to undermine the Republic.

On 6 October 2005 criminal proceedings were instituted against the applicant for acting as an accessory to murder (účastenství na vraždě). She was accused of having acted as a prosecutor in the political trial of Milada Horáková and others in 1950.

On 13 October 2005 the applicant appealed against this decision, arguing that the authorities had not specified which of her acts or omissions constituted the offence in question, for which mens rea was required. She emphasised that the situation of that time should not be viewed emotionally merely because mindsets had changed since then, and that it would have to be proved that she had committed a criminal offence under the law applicable at the material time.

According to the applicant, the decision to open the above-mentioned proceedings was set aside following her complaint, and the police were ordered to reinvestigate the case. She submitted that as soon as the police knew that a prosecution for acting as accessory to murder would be time-barred, new criminal proceedings were brought against her in January 2007 for the offence of murder.

It is clear from the case file, however, that the new decision to bring criminal proceedings, taken by the police on 8 January 2007, still concerned the offence of acting as an accessory to murder under the 1961 Criminal Code (Law no. 140/1961). The applicant appealed against this decision, claiming that at the time of the trial she had been a mere student, answering to a higher-ranking prosecutor, and that she had not been able to work independently. She claimed that the charge she was facing was imprecise and did not specify either her intention to commit the offence or in what way she had broken the laws of the time. She also maintained that she had not participated in the investigation and that the investigation file had convinced her of the guilt of the defendants, who had spontaneously confessed during the hearing. She felt it normal to have been present at preparatory meetings, as they were preparing for a public trial, and stated that she had followed the instructions of her supervisors. During her questioning by the police on 1 March 2007 the applicant exercised her right to silence.

On 19 April 2007 the applicant’s lawyer inspected the file, added some press cuttings from the time of the events and requested that the case be discontinued on the grounds of lack of evidence indicating that her client was guilty. She subsequently asked that the evidence be supplemented by any that might prove the applicant’s intention to commit the crime in question and expressed surprise at the fact that proceedings had been brought only in 2005, when all of the other participants were deceased.

On 12 July 2007 the prosecutor allegedly informed the applicant, before formally charging her and without further explanation, that her acts were henceforth to be classified as murder committed as a joint principal (trestný čin vraždy ve spolupachatelství).

In September 2007 the applicant submitted documents to the court attesting to the fact that, having been in her first year of legal studies at university at the time of the trial, she had been under the instructions of her supervisors and could in no way influence the course of events. She also argued that the provisions of the 1873 Code of Criminal Procedure that she was accused of having infringed were very general and concerned only the due diligence of the proceedings, and that the charge against her was not founded on any actual responsibility on her part.

On 10 October 2007 the applicant requested that the hearing be held without her attendance, for health reasons, and exercised her right to silence on the ground that she had already communicated her comments to the authorities.

Between 16 and 18 October 2007 the Prague Municipal Court (Městský soud) held the hearing in the absence of the applicant, who was represented by a lawyer. Her deposition was read out, along with many other written documents, and audio and visual recordings of the trial were projected. In response to counsel for the applicant’s objection that the defence had not yet had the possibility of giving their views on the charge and the evidence read out in court, the court observed that, according to Article 214 of the Code of Criminal Procedure, that right was reserved solely for the defendant herself. At the end of the hearing the applicant’s lawyer did not file a motion to submit additional evidence and delivered a closing address, noting that the criminal proceedings could have been instituted at the time of the judgment of 30 July 1968 and that the proceedings brought against the applicant, as the sole survivor, were possible at present only because the limitation period had been changed after 1989. The lawyer admitted that her client had, in participating in the trial, shown her loyalty to the communist regime, but emphasised that at the material time the Communist Party, together with the KGB, had run everything, and that the psychosis in society had turned into a general acceptance of breaking the law. However, the prosecution had not presented any real evidence proving the criminal responsibility of the applicant. Indeed, having had no legal training at the time, she had not been in a position to understand the shortcomings of the trial, particularly since the State Prosecutor’s Office had been directly run by the Ministry of Justice, and had been in no position to influence or change the course of the trial. By taking part in the drafting of the charges and the assessment of the trial the applicant had merely been following the orders of her more experienced supervisors and she had not proposed a sentence in her written submissions. Moreover, no minutes existed from any political meeting bearing the applicant’s signature as a sign of her attendance.

On 1 November 2007 Prague Municipal Court found the applicant guilty of murder under Article 219 of the 1961 Criminal Code (in force at the time of the judgment), committed jointly with the other prosecutors and judges involved in the aforementioned trial and since deceased, and sentenced her to eight years’ imprisonment. The court considered it to be proven that, having participated in the trial in 1950 of Milada Horáková and others as a member of the prosecution, the applicant had acted in breach of the 1873 Code of Criminal Procedure in force at the time, as she had been aware of the fact that the questions of guilt and sentencing had been decided on by the political authorities well in advance of the trial, which she knew had been designed only to confer an appearance of legality on the physical elimination of the defendants. The court held that the applicant’s defence, submitted by her lawyer in court, had been refuted by the evidence taken. Among this evidence, in particular, were written documents bearing witness to the fact that the trial had been prepared by the Ministries of Justice and the Interior with the help of the State Security Service and a group of prosecutors within which the applicant, having already proven herself during other political trials, had acted as a “people’s prosecutor”. They showed that the scripted trial and the minutes had been prepared in advance by the Ministry of the Interior, that the case file of the prosecution had been subject to political approval, that counsel for the defence, the prosecutors and the judges had been instructed by the Ministry of Justice as to how the trial should unfold and that political meetings at which the applicant had been present had taken place every day after the hearing. The file also contained a written assessment of the trial, signed by the applicant, which emphasised the importance of the political investigations and commended the very good cooperation with the State Security Service. The Municipal Court also had at its disposal an appeal in the interests of the law lodged on behalf of the defendants in July 1968, which had led to a Supreme Court judgment on 30 July 1968. The court considered that this evidence proved that the 1950 trial had been manipulated to the point where it amounted in fact to a quadruple murder carried out through the justice system and that the applicant had made a significant contribution to it by failing to comply with, among other provisions, Articles 3, 30 and 34 of the Code of Criminal Procedure of the time relating to the authorities’ obligation to look for incriminating and exonerating evidence, to protect the interests of the State and to establish the truth by all available methods. The Municipal Court held that, at the time, the applicant should have known that the death sentences imposed had not been a legal measure and that, jointly with others, she had contributed to conferring an appearance of legality on the political trial in question, and consequently to the murder of four people on the basis of their political beliefs. Given that under the 1852 Criminal Code, which had been in force at the time of the offence, murder was punishable by the death penalty, the court held that the charges against the applicant should be classified as murder under Article 219 of the 1961 Criminal Code, which was more favourable to her. Although the Code provided for a twenty-year limitation period, it was also necessary to take into account section 5 of Law no. 198/1993 on the Illegality of the Communist Regime, which suspended the limitation period between 25 February 1948 and 29 December 1989 when political motives incompatible with the fundamental principles of a democratic legal system had thwarted a conviction or acquittal. In the present case, therefore, the offences with which the applicant was charged were not time-barred. Taking into account the extenuating circumstances (the applicant’s subordinate status and her law-abiding life), the amount of time that had passed since the offence had been committed and since she could have first been prosecuted, her age, the state of her health and her degree of involvement in the offence (less than that of the renowned judges and prosecutors), the court imposed a lesser sentence on the applicant than the normal minimum.

The applicant lodged an appeal, arguing that under the original legislation, which was more favourable to her, the offence was time-barred (as in a similar case concerning the prosecutor K.V. which ended with the charges being dropped). She also complained that the rights of the defence had not been respected, alleging that the court had not taken into account the closing address of her lawyer, who, moreover had not been given the opportunity to comment on the criminal charge or the evidence, and that the court had not responded to the submissions of the defence in any way. Furthermore, she deemed evidence consisting of an anonymous letter from a former prison guard, which had prejudiced her in the eyes of the court and the public, to be illegal. In her opinion, there was no evidence to prove that she had intentionally participated in the murder of four people based on their political beliefs, that she had knowingly been part of a plan designed to eliminate enemies of the regime regardless of the established facts, that she should have known that the judges had been influenced or that she had taken part in meetings with the political authorities. The applicant criticised the court for not taking into account the fact that, at the time of the events, she had only completed one year of preparatory legal studies and had been a first-year law student, which did not enable her to understand all of the circumstances surrounding the trial, let alone any potential political manipulations.

In a judgment of 4 February 2008 delivered in closed court, the Prague High Court (Vrchní soud) quashed the Municipal Court’s judgment on appeal and discontinued the proceedings on the ground that the limitation period had expired. The court observed firstly that no significant procedural defects had occurred in the proceedings before the Municipal Court, that all the evidence necessary in order to elucidate the facts had been properly taken and decided on by the judges and that the court had explained its reasoning as well as the elements supporting its findings. The High Court did not therefore agree with the applicant’s opinion that her guilt had not been proven and found it established that the questions of guilt and sentencing had been decided on before the trial had even begun, that the applicant had taken part in it as a “people’s prosecutor” even though she had not yet finished her studies at university and that she must have been aware, at least broadly, that the provisions of the Code of Criminal Procedure of the time were being breached. The court also rejected her submission that the rights of the defence had not been respected. In this regard it noted that when defendants waived their right to appear before the court, they also waived the right to comment on the evidence taken. Furthermore, when a defendant was not present at the hearing but his or her lawyer was, the right to comment on the evidence and the charges was exercised through the closing address, which was what had happened in this case.

The High Court nonetheless held that the Municipal Court had not given the aforementioned correctly established facts the appropriate legal classification. It did not accept the Municipal Court’s opinion that the 1961 Criminal Code was more lenient than the 1852 Code, applicable at the material time. Taking into account, in the light of the principle of individual criminal responsibility, the ancillary and limited role of the applicant, the court held that she could not be considered as having committed murder as a joint principal. The court remarked in this regard that the political system of the time had created a mechanism which fabricated political trials and was operated by political leaders (in particular the secretariat of the Communist Party), the security services (the State Security Service and Soviet advisers) and the judicial service; judgments were therefore predetermined. Thus, in the chain of command of those who had participated in the trial of Milada Horáková and others, the prosecutors had played a part which was key to the trial but not decisive for its outcome, and the applicant had been at the end of this chain. An objective assessment of her role therefore led to classifying her actions not as murder committed as a joint principal but rather as acting as an accessory to judicial murder, as in the preliminary proceedings. Under Article 137 of the 1852 Code, such acts could be classified only as indirect participation in ordinary murder, carrying a sentence of five to ten years in prison and with a five-year limitation period. In these circumstances, even having regard to section 5 of Law no. 198/1993, the limitation period had expired on 30 December 1994, and since the proceedings in question had been brought after that date there was no case to answer.

An appeal on points of law against the High Court’s ruling was lodged by the Supreme Prosecutor, who argued that the present case did not concern indirect participation in murder, but murder committed jointly, an offence which, under the 1852 Code, was punishable by the death penalty and not subject to a limitation period. In the prosecutor’s opinion it was therefore necessary to apply the 1961 Criminal Code, which was more lenient as it did not provide for the death penalty and fixed the limitation period at twenty years. Under section 5 of Law no. 198/1993, the limitation period therefore ran from 30 December 1989 to 30 December 2009.

The applicant objected to the grounds of the appeal and consented to it being heard in camera.

Nonetheless, on 4 June 2008 a public hearing took place before the Supreme Court, in the absence of the applicant, who was represented by her lawyer. The latter commented on the appeal, without requesting leave to add to the evidence, and asked the court to uphold the finding that there was no case to answer for lack of evidence proving that his client had been aware of the manipulation and that she had intended to infringe the procedural provisions.

After this hearing, the Supreme Court quashed the judgment of 4 February 2008 and ordered the High Court to give a new decision, respecting its binding legal opinion. In the Supreme Court’s opinion, to find the correct legal classification in this case, it was necessary to compare the applicant’s involvement in the trial with the immutable ethical standards required of a prosecutor. In this regard, the court referred to its decision no. 7 Tz 179/99 of 7 December 1999 which defined the conditions in which a judge could be held criminally responsible for the murder of innocent people sentenced to death. In view of these principles, applicable mutatis mutandis to prosecutors, the actions of the applicant, who had taken part in the fraudulent manipulation of legal proceedings designed to eliminate opponents of the communist regime, had been completely unethical. As the Municipal Court had established, the case was about a political trial the outcome of which had been decided in advance by the political organ of the Communist Party together with the State Security Service. All those who had agreed to take part as judges and prosecutors were in a similar position, that of key enforcers of the will of a political organ, and there was no convincing reason for differentiating between them in terms of criminal responsibility. The fact that the applicant had been chosen after having proved herself in other political trials, had been a member of the main group of prosecutors which had prepared the prosecution, had taken part in the political meetings and delivered the prosecutor’s closing address, had signed the assessment of the trial and had taken part in the execution of those convicted showed to what extent she had identified with the aim of the trial, namely the physical elimination of innocent victims. Given that the trial, ending in the sentencing to death and execution of the defendants, had constituted the murder mechanism, it was correct to conclude that the applicant, as a prosecutor, had actively participated in the joint commission of the murder and had thus committed a crime which, according to Article 136 of the 1852 Criminal Code, was punishable by death and hence had no limitation period. It was the Supreme Court’s opinion that the High Court’s decision was therefore founded on an erroneous legal assessment of the facts and that the conditions for finding that there was no case to answer had not been met. Given that the 1961 Criminal Code, which was more favourable to the applicant, provided for a limitation period of twenty years (suspended between 25 February 1948 and 29 December 1989), the proceedings in the instant case were not time-barred.

Having agreed to the applicant’s request that the hearing, planned for 29 July 2008, be postponed, the Prague High Court held a public hearing on 9 September 2008 in the courtroom of the Regional Court of Plzeň, the city where the applicant resided. The latter attended the hearing with her lawyer and commented on her case by describing her childhood and her experience of the war and by maintaining that her participation in the trial of Milada Horáková had been presented to her as an opportunity to work with and learn from some excellent lawyers. She had not been aware of any manipulation having occurred, had never spoken to the defendants and had trusted the judgment of those more experienced than herself.

At the end of the hearing, the Prague High Court quashed the Municipal Court’s judgment of 1 November 2007 and found the applicant guilty of ordinary murder as a direct participant within the meaning of Article 136 (a) of the 1852 Code of Criminal Procedure, for which she was sentenced to six years’ imprisonment. After reiterating its previous findings on the absence of irregularities in the proceedings before the Municipal Court, the High Court, bound by the legal opinion of the Supreme Court and its reasoning regarding the responsibility of the applicant, concluded that the latter had been directly involved in the murder by having participated in a trial breaching Articles 3, 30, 34 and others of the 1873 Code of Criminal Procedure, breaches of which she must at least have been broadly aware. Under the 1852 Criminal Code the offence had no limitation period, whilst the 1961 Criminal Code provided for a limitation period of twenty years (suspended between 25 February 1948 and 29 December 1989, by virtue of section 5 of Law no. 198/1993). The criminal proceedings were therefore not time-barred in either case at the time of their instigation in 2005. Given that under the 1852 Code the above-mentioned offence carried a maximum sentence of twenty years’ imprisonment when at least twenty years had passed since the events, whereas the 1961 Criminal Code provided for a life sentence, it made sense to sentence the applicant under the 1852 Code. In doing so the High Court took into account the extenuating circumstances (the applicant’s law-abiding life, the fact that she had committed the offence de facto by obeying orders, the amount of time that had passed since the offence had been committed, the age and health of the applicant and the part she had played in the trial), and determined that the sentence should be shorter than the normal minimum.

On 14 October 2008 the applicant lodged an appeal on points of law with the Supreme Court, complaining of the media uproar, the defence’s inability to comment on the evidence taken, the court’s reading of an anonymous letter from a former prison guard supposedly describing her behaviour during the execution of those convicted, and the application of the principle of collective guilt (without distinguishing between people according to their function and their ranking in the hierarchy). She submitted that the guilty verdict against her was contrary to Article 4 § 3 of the Charter of Fundamental Rights and Basic Freedoms (hereinafter “the Charter”) since an analogous case against K.V., a former military prosecutor, had been discontinued on 15 January 2002 because it was time-barred, a decision upheld by the Supreme Court on 12 June 2002. She also argued that the verdict had relied on a mere moral conviction, as a substitute for the lack of evidence refuting her defence; however the case had to be approached not solely from a moral and ethical perspective, but also from a legal one. Finally, the applicant submitted that it was unacceptable and against the principle of independence of the courts that the High Court, bound by the Supreme Court’s legal opinion, should have been influenced, in this regard, in establishing the facts and examining the evidence.

After a request by the applicant that her appeal be considered by a different panel to the one having already ruled on the appeal lodged by the Supreme Public Prosecutor, it was decided on 5 March 2009 that the panel would not withdraw from examining the case.

On 19 March 2009, after a session held in camera (to which the applicant had consented), the Supreme Court dismissed the appeal for lack of grounds. It noted firstly that in its judgment of 4 June 2008 it had given the High Court no instructions as to the establishment of the facts or the assessment of the evidence, having limited itself to commenting on the legal assessment of the established facts and the application of the 1852 Criminal Code. This assessment had in no way been influenced by the media coverage of the criminal proceedings or by the reading of the anonymous letter, on which the Municipal Court had in any case not relied in its findings. The Supreme Court also rejected the argument relating to collective guilt, finding that it was only in cases where justice functioned normally that there was cause to distinguish between judges and prosecutors. However, given that in the trial of Milada Horáková and others the judges and prosecutors had all contributed to the pursuit of a political objective, which was to physically eliminate the victims, by conferring an appearance of legality on it, the responsibility borne by the applicant, although less than that of the judges, was not so different that it was incomparable. The court went on to find that the objection that the applicant’s criminal responsibility was based solely on ethical or moral failings was unfounded, stating that the applicant had been responsible for illegal conduct which infringed the provisions of the 1873 Code of Criminal Procedure. Concerning the violation of Article 4 § 3 of the Charter alleged by the applicant with reference to the K.V. case, the Supreme Court stated that it was not its place to assess the judgment in a case concerning a different defendant, different facts and different criminal legislation, when the binding nature of the judgment referred to was limited to the case in question. The fact that the Supreme Court had not taken this decision into account in the applicant’s case could not amount to a breach of Article 4 § 3 of the Charter, which in any case was not applicable to specific judicial decisions.

In March 2009 the applicant began to serve her prison sentence.

On 27 April 2009 the applicant challenged the Supreme Court’s decisions of 4 June 2008 and 19 March 2009, as well as the High Court’s judgment of 9 September 2008, in a constitutional appeal in which she relied on Articles 4 § 3, 10 and 36-40 of the Charter. She complained of the application of the principle of collective guilt and the admission into evidence of the defamatory anonymous letter. She also argued that the contested judgments had not specified which evidence was meant to have proved that she had been aware that the trial had been manipulated, and that it was not possible to commit murder either through ethical or moral failings or by infringing the provisions of the Code of Criminal Procedure. She further complained of the fact that the Supreme Court, in its decision of 4 June 2008, had given instructions to the High Court regarding the assessment of evidence and of the High Court’s subsequent failure to further investigate the case or hear evidence from the applicant, allowing her only a closing address. Referring once again to the K.V. case, the applicant objected to the courts’ findings as to which legislation was more favourable to her. Finally, she questioned the reasons for not having initiated proceedings earlier, when other participants in the trial would still have been alive and when she could have more actively defended herself. She believed that the courts had been influenced in the instant case by the objective of convicting her, as she was the last survivor of the trial in question.

On 16 July 2009 the Constitutional Court (Ústavní soud) dismissed the appeal as manifestly ill-founded in that the applicant had failed to prove that there had been a violation of her fundamental rights. It found firstly that the applicant’s claims before the court were identical to those which had been put forward in her appeal on points of law, on which the Supreme Court had duly ruled; the applicant was therefore just pursuing the same claim and was treating the Constitutional Court as a court of fourth instance. Agreeing with the other courts’ view that there was no need to differentiate, for the purposes of criminal responsibility, between the different persons who had taken part in the trial, the Court noted that the other courts had nonetheless considered the applicant’s individual conduct. The decisive legal findings had been reached on the basis of facts which had been established by the Municipal Court with the help of numerous items of written evidence, as stated in its judgment. These documents, the authenticity of which had not been challenged by the applicant, named the applicant as having taken part in the political meetings and included an assessment of the trial signed by her. In response to the applicant’s claim that the High Court had not accepted her deposition, the Constitutional Court referred to the courts’ reasoning regarding the consequences of the applicant’s request that the hearing in the court of first instance take place without her. It also noted that the High Court had adequately considered the closing address made for the applicant and that therefore her right to address the court had not been infringed. Moreover, the Municipal Court had no obligation to approve every motion to take evidence. Concerning the anonymous letter, the Constitutional Court found that it was unnecessary evidence as the courts had not based their decisions on it and thus had not had to assess it. The applicant’s allegations about the influence of the media on the outcome of the proceedings were described as vague and hypothetical. The Constitutional Court also upheld the Supreme Court’s decision of 4 June 2008, in which the latter had merely expressed its opinion on the correct legal classification of the facts which had been established up until that time. The decision had therefore not bound the High Court in any way in terms of the facts. Concerning the applicant’s claims that she could not have committed murder, the court referred to the findings of the lower courts according to which the applicant had misused her role as a prosecutor and had not fulfilled it in accordance with the legal provisions, and had thus actively participated in the murder as a joint principal. The Constitutional Court also considered it impossible to interpret Article 136 of the 1852 Criminal Code as not applying to certain methods of committing murder, such as a manipulated trial infringing the procedural provisions; such an interpretation would guarantee impunity for murders committed through manipulated trials, which would be tantamount to the State renouncing the protection of life. In the Constitutional Court’s opinion, the courts had, moreover, sufficiently explained why they had considered the 1852 Criminal Code to be more favourable to the applicant, even with regard to limitation periods. From a constitutional perspective it was irrelevant that the criminal proceedings against K.V. had led to a different result; as the Supreme Court had already stated, Article 4 § 3 of the Charter could not be relied on in that context. Finally, the question of why the criminal proceedings had not been brought earlier was considered to be speculative and abstract. The Constitutional Court therefore held that the interpretation and application of the law by the courts and their conduct of the proceedings had not exceeded the limits of constitutionality.

On 24 February 2010 the Hradec Králové Regional Court (Krajský soud) decided of its own motion that three presidential amnesties, from 1953, 1955 and 1990, were applicable to the applicant, each of which took two years off her prison sentence. However, this decision was set aside on 24 March 2010 by the Prague High Court, which ruled that only the 1953 and 1990 amnesties were applicable to the applicant and that it was appropriate to grant her a pardon in respect of three years of her sentence in total. In this decision, the High Court referred to other criminal cases where it had been established that the 1955 amnesty did not apply to persons convicted of murder.

On 2 March 2010 the applicant’s lawyer was informed that the Supreme Public Prosecutor had not agreed to her request that an appeal in the interests of the law be lodged on her behalf.

On 21 December 2010 the President of the Czech Republic pardoned the applicant in respect of the rest of her sentence. She was released the same day.

Article 2 guaranteed the right to individual liberty and no one was to be deprived of that liberty except by law.

Article 3 § 1 provided that no one could have proceedings brought against him or her except in cases provided for by the law, and only by a court or authority competent under the law and in accordance with a procedure prescribed by law.

Under Article 36, all holders of public authority had to conform to the laws and regulations of the people’s democratic regime during the exercise of their functions and powers; any agent of the public authorities failing to fulfil this obligation was to be punished by law.

Under Article 134, any person who acted against another with the intention of causing his or her death and in a way which led to his or her death was guilty of murder.

According to Article 136 (a), the death penalty was to be imposed not only on the person who carried out the murder, but also on any person who had ordered it, had laid hands on the victim during the murder or had acted as a joint principal during it.

Article 137 provided for sentences for accomplices to and indirect participants in the murder.

Under Article 231, offences punishable by the death penalty were not subject to limitation. However, where the offence had been committed twenty years before the criminal proceedings were brought, this provision stipulated that the accused could only receive a sentence of between ten and twenty years’ imprisonment.

Article 3 required the competent criminal authorities to duly consider all the circumstances which might incriminate the accused as well as those relevant to his or her defence, and to inform the accused of his or her rights.

Pursuant to Article 30, members of the prosecution were required, within their areas of competence, to defend the well-being of the State and act independently of the courts.

Under Article 34, prosecutors were required to prosecute of their own motion all offences brought to their attention and to ensure that the investigation was carried out before the competent court and that the persons responsible were punished. They also had to ensure that all methods capable of leading to the discovery of the truth were correctly employed. They had the right to consult files, obtain information about the progress of investigations and formulate appropriate proposals. If they noticed any irregularities or delays they were required to take measures provided by law to remedy them.

Article 4 § 3 provides that any statutory restriction of the fundamental rights and freedoms must apply equally to all cases meeting the conditions laid down.

Under Article 10 § 1, everybody is entitled to respect for his or her human dignity, personal integrity and good reputation, and to the protection of his or her name.

Articles 36 to 40 guarantee the right to an independent and impartial court, a fair and public trial held without unnecessary delay, the rights of the defence and the principles of the presumption of innocence and of penalties being strictly defined by law.

Article 214 provides that, after taking each item of evidence, the judge must ask the defendant if he or she wishes to comment on it. The defendant’s comments must appear in the minutes of the proceedings.

Under section 5, the limitation period for prosecuting offences is suspended between 25 February 1948 and 29 December 1989 if a legally effective conviction or acquittal did not take place owing to political motives incompatible with the fundamental principles of a democratic legal system.

In this decision, the Supreme Court considered the possibility of prosecuting a State Court judge, who had sentenced innocent people to death in another political trial in the 1950s, for murder. Noting that, at the time of the trial, the Constitution and laws in force had established rules aimed at ensuring that judges could decide in an independent, impartial and fair manner, the Supreme Court held:

“Even if we must take into account the departure, in reality, of judicial practice from these principles due to the external influence of the executive bodies and the prosecution, it is unacceptable to conclude that judges did not bear responsibility for their decisions. Being in the role of a judge is never purely a matter of applying the law ... but is based first and foremost on ethics. This ethical basis is characterised by certain immutable ethical standards ... even though they are not codified. In order for a judgment to be fair ... and constitute an act of justice, certain principles, which must be respected regardless of the external political situation, must incontestably form part of these unwritten rules. Whilst recognising that the notion of justice is always, in some way, dependent on the conditions of the historical context or the time, the Supreme Court remains nonetheless convinced that, at the very least, certain fundamental ethical requirements can be formulated, applicable to the notions of justice and fair judgment that are not subject to such temporal conditions.

To be considered fair, a sentence must at the very least fulfil the requirement of punishing the convicted person for an offence actually carried out by them. The judgment must truly be the result of the trial preceding it. The proceedings leading up to the judgment must not be mere formal, insignificant precursors to a predetermined decision. The judgment must genuinely result from the court’s work and not be imposed from the outside, in other words by institutions outside the judicial system such as political bodies, the executive, etc. The court’s decision-making process must involve distancing itself from any vested interests in the outcome of the proceedings, including political interests. The judgment must not have the sole objective of becoming a tool in the political struggle conducted by one part of society against the other. It must not be a simple act of elimination of individuals or groups of individuals in the context of such a struggle.

The value of these rules lies in the fact that if judges do not abide by them, they deeply betray the fundamental ethical principles of their vocation, regardless of the reason, even if for example they have succumbed to political influence. If, when making their decision, judges are exposed to influences that are contextual or specific to the time, they must not forget that this decision must stand even after those influences are gone. Judges must be aware that, even later, their decisions must fulfil the fundamental requirements of justice.

If a person’s life is taken as a result of a decision sentencing him or her to death, the question is: when does that judgment constitute a criminal offence, when is it an abuse of power by the judge, and when is it what is known as judicial murder? Although this question is very difficult to answer, it is not impossible. We must first identify a certain hierarchy of the unlawful elements in the judgment.

There can be times when a judgment is the result of proceedings which have been duly conducted and are based on the assessment of concrete evidence, the issue of guilt or innocence having simply been the subject of differing opinions throughout the various judicial proceedings.

At other times, a judgment may be the result of irregular proceedings where there was insufficient evidence. However these are irregularities which, in substance, testify only to poor decision-making, with no actual intent on the part of the judge to harm the accused. A judgment of this kind is still the result of justice that functions normally.

There can also be cases where a judgment is vitiated because the judge intended to harm the accused or favour someone, but where the judgment was delivered following a trial conducted according to the requirements of proper legal proceedings. Here, the irregular judgment constitutes a substantive breach of the principles of impartiality and objectivity required for exercising the duties of a judge.

The most serious case is that of a judgment given in circumstances devoid of those immutable ethical attributes inherent in the duties of a judge, in particular because

(a) there was premeditated intent to physically eliminate a person;

(b) the judgment was chosen as the tool with which to physically eliminate that person;

(c) the judge identified with that aim of the judgment, regardless of the reason;

(d) the judge subordinated the way in which he or she conducted the proceedings or participated in the decisions to the objective of delivering, as planned, a judgment amounting to murder;

(e) the judge sentenced or participated in the sentencing of the accused with no heed to the course or outcome of the trial; in reality, the results of the proceedings were not a criterion in determining the judgment – on the contrary, the proceedings were adapted to the objective of securing a conviction which amounted to murder; and

(f) the accused had no real chance of reversing the premeditated intention to eliminate him, even if, to an outside observer, the proceedings might have given the impression that their content had led to the judgment (for example if the accused had been coerced into confessing).

In these circumstances, the decision to sentence someone can be regarded as a necessary and irreplaceable part of a lethal mechanism. The issue here is not one of a mere abuse of power on the judges part, but of murder. That is what is meant in legal terms by judicial murder. The sentencing here is an act that is totally estranged from the ethical foundations on which the duties of a judge rest.

It is thus apparent that in order to decide whether, in the case of a judge, there has been an abuse of power or judicial murder, it is not sufficient to examine the sentence solely in the light of whether or not it is in accordance with the law as a normative act of public authority. The issue can be properly and convincingly resolved only if the sentence is scrutinised in the light of the criteria stemming from the ethical foundations of the office of a judge. ...

It is clear from the circumstances surrounding the adoption of the judgment in case no. 1 Ts II 57/51 of the former State Court that in determining the case, the accused had betrayed the ethics of the judicial decision-making process in an extremely serious way. The judgment had not been an act of justice but an act of elimination of the persons convicted by it. That act of elimination had only the appearance of a judgment; in terms of its content and values, it had nothing to do with justice. It was a case of the person adopting the judgment not being, in reality, the judge in the case but an assistant to or joint principal with those who, at the time, determined that the objective of the trial would be the physical elimination of the accused. Thus, it would not do to exclude one of the forms of criminal responsibility of a person accused of murder. The accused cannot exonerate him or herself from that responsibility by referring to the responsibility of others who may have also participated in the physical elimination of those convicted. ...”

In this decision, the Supreme Court dismissed an appeal on points of law lodged by the Supreme Public Prosecutor to the detriment of the person concerned, K.V. In a judgment of the Prague Municipal Court, K.V. had been found guilty of murder under Article 219 § 1 of the 1961 Criminal Code for having contributed, as a military prosecutor and subsequently an investigating judge, to the unjust conviction in 1949 of General H.P., who received the death sentence. K.V. had been accused of, among other things, forging parts of the case file, distorting the minutes of the proceedings, leading the investigation in a way that was not objective and was influenced by Soviet advisers, and proposing the death penalty. Following K.V.’s appeal, the High Court had nonetheless classified the same facts as participation in ordinary murder within the meaning of Article 414 § 4 of the Military Criminal Code in force at the material time, an offence for which that law provided a limitation period of five years. The High Court had therefore concluded that, even taking section 5 of Law no. 198/1993 into account, the limitation period had expired before criminal proceedings had been instituted against K.V. on 9 March 1998.

The Supreme Court noted that the Municipal Court and the High Court had relied on the same facts and that the significant difference in their legal assessment of those facts was due to the importance and gravity attached to the forging of parts of the case file. Therefore, after having freely assessed the evidence before them, the two courts had come to different legal conclusions based on the same description of the facts. In examining the lawfulness of the legal classification decided on by the High Court, from the point of view of the legal assessment of the facts, and noting that it was not its place to interfere in the appellate court’s procedural assessment of the evidence, the Supreme Court found that the said classification corresponded to the facts described. Consequently, the Supreme Public Prosecutor’s appeal on points of law was dismissed as manifestly ill-founded.


The applicant is a British national, born in 1944 and living in Gloucester, England.

The applicant, using a pseudonym, published a book about the cultivation and production of cannabis. The book was advertised for sale in three magazines. Some five hundred copies were sold. The police obtained the names of various customers, established the identity of the applicant and arrested him.

When questioned by the police the applicant denied that the book was intended to incite buyers to cultivate cannabis. When pressed about the question of encouragement and incitement, the applicant, on the advice of his solicitor, declined to answer questions saying that the questions were “too conjectural”.

The applicant was subsequently charged with three offences under the Misuse of Drugs Act 1971 (“the 1971 Act”). He stood trial before a jury at Worcester Crown Court in February 1996. The applicant pleaded guilty to the charges of producing and having in his possession cannabis and not guilty to the charge of incitement to commit an offence under the 1971 Act.

The prosecution case was that the applicant’s book amounted to an incitement of those who bought it to cultivate cannabis and was in effect a grower’s guide. The prosecution relied on the fact that when the police raided the homes of a number of buyers, cannabis plants were found being cultivated according to methods similar to those described in the book. According to the prosecution, the applicant’s intention in writing and publishing the book could be inferred from the book itself and from the effect which it had on the purchasers of the book. The prosecution called as witnesses several such purchasers who were found to be using the method advocated in the book (“the Tricameral method”) to grow cannabis.

The applicant’s counsel contended in his defence that his book was a genuine contribution to the debate about the legalisation of cannabis, that it only contained general advice and information freely available elsewhere, that it made it clear that growing cannabis was an offence and that its contents were too remote from the likely actions of those who read it. The applicant relied, inter alia, on the testimony of an expert witness to the effect that many books had been published about the cultivation of cannabis. The expert sought to establish with reference to the contents of those books that the applicant did not intend to incite others to break the law.

According to the applicant, his counsel informed the trial judge that he would not be giving evidence on medical grounds and submitted a medical report indicating that the applicant’s performance in the witness box might be prejudiced on account of the stressful circumstances of his court appearance.

As to the ingredients of the offence of incitement, the judge in his summing up directed the jury that they had to decide whether they were sure that the book:

“may encourage or persuade, or if you like to put it another way, is capable of encouraging and persuading other people to produce the drug cannabis and thus to break the law. The prosecution do not have to prove that it may encourage and persuade, or is capable of doing that, in relation to people who have never grown cannabis before or who had stopped growing cannabis. As I have said, if it may encourage and persuade people to start up again or to carry on and produce more cannabis that would be quite sufficient for proof of the offence. ... If ... you say that it is an encouragement and persuasion, then you must be sure of something else before you can convict the [applicant], and that is that he knew at the time he was disseminating the book that what he was inciting other people to do would be a crime on their part if they did it but that he nevertheless intended to go ahead and do it anyway. It does not have to be proved of course that that was his only intention in publishing the book. It would be quite enough to show that it was one of his intentions. ...”

As to the applicant’s silence during police interview and at his trial, the judge directed the jury in the following terms:

“... You have had a summary of the [applicant’s] police interviews from which you know that, although he answered many of the police questions, he declined to answer others. The answers which he gave you will of course give such weight to as you think right. ... Some of the questions in the interview, as I have said, he did not want to answer. He did not want to answer questions on the central question of incitement when the police officers were putting them to him. He was quite entitled not answer questions if he did not want to. He could of course have done so but he had an absolute right not to do so. Where he was silent or said, ‘I don’t have any comment’ or, ‘I don’t want to answer that question’ you must not use that as any evidence that he is guilty or take the view that it makes the prosecution case any stronger than it otherwise would do.

Then there is the question of him not giving evidence in the witness box in court to you. That stands on a slightly different footing. He has an absolute right not to do that but, as he has been told by me through his barrister, the law is that you are allowed to draw any inference, deduction that is, which you think right from the fact that he had declined to go into the witness box and give evidence on oath. The prosecution cannot prove their case simply by the fact of his silence. What you should do is ask yourselves whether, on the evidence that you have heard, there is a case against him which calls for an answer from him. If not, if there is not, then his silence would have no significance. But if there is a case against him then you would be entitled to come to the conclusion that the only sensible explanation for his decision not to give evidence is that he has no answer to the case against him or no answer which would stand up to being cross-examined by counsel for the prosecution. You are entitled to use that inference, together with all the other evidence in the case, in concluding that he must be guilty of the charge if that is the inference you choose to draw. But it is entirely up to you to say whether you think it is right to do so or not.

Of course you will also ask yourselves first of all whether there may be any other harmless reason, if I can use that phrase, for his silence. You may think that no such reason is readily obvious and that he is the person in the best position to tell you what his intention was, for example, in producing this book if he thought that it would advance his case to tell you. As I say, it is up to you what inferences you draw, if any.”

Later on in his summing up the judge stated:

“What he has never told you of course or told the police is what other books he knows about or has read, nor has he told you how any such books may have affected his own intentions in writing his own. As I say, he could have done because the question of intention has been very much in issue, but he has not. His counsel has made certain suggestions about that but you may think the person best able to explain all that would have been the defendant himself. ...

The police then pressed him on the question of encouragement and incitement and it was at that point that he asked his solicitor how he should answer ... .”

On 18 March 1996 the jury by an eleven to one majority found the applicant guilty of the offence of incitement. The applicant received a twelve month prison sentence concurrent on the three offences with which he was charged.

The applicant applied for leave to appeal. In his amended grounds of appeal the applicant maintained that the trial judge failed to give the jury a proper direction on the inferences which could be drawn from his silence at the police interview and at his trial. In particular, he alleged that the trial judge failed to inform the jury that there was medical evidence which could explain his silence at the trial. The applicant further stated that the trial judge misdirected the jury on the notion of incitement. The full Court of Appeal gave the applicant leave to appeal on the last ground only.

On 14 July 1997 the Court of Appeal dismissed the applicant’s appeal. Delivering judgment, Lord Justice Potter, with reference to precedent, considered that the trial judge in his direction should have invited the jury to ask itself whether the book encouraged or persuaded rather than whether it may encourage or persuade or was capable of encouraging or persuading readers to produce cannabis and thus to break the law. However, having regard to the trial judge’s direction as a whole with respect to the defence relied on by the applicant, Lord Justice Potter considered that the jury was properly apprised of the requisite ingredients of the offence. He also rejected the applicant’s contention that sections 18 and 19 of the Misuse of Drugs Act 1971, which set out the offence of incitement, did not refer to the production of cannabis. According to Lord Justice Potter, this was an obvious drafting error and sections 18 and 19 were to be construed in relation to section 4 of the same Act which criminalised the production of cannabis.

The Court of Appeal substituted a sentence of six months’ imprisonment in respect of the applicant’s convictions for possession and production of cannabis but upheld the twelve month prison sentence he received in respect of the offence of incitement.

The relevant domestic law and practice relating to the drawing of adverse inferences from an accused’s silence during police interview or at his trial is described in detail in the Condron v. the United Kingdom judgment of 2 May 2000 (application no. 35718/97).


BENET CZECH, SPOL. S R.O. v. THE CZECH REPUBLIC

Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Peer Lorenzen;Rait Maruste;Renate Jaeger

The applicant, Benet Czech, spol. s r.o., is a limited liability company incorporated under Czech law with its registered seat in Prague. It was represented before the Court by Mr P. Klimeš, a lawyer practising in Prague. The respondent Government were represented by their Agent, Mr V.A. Schorm, from the Ministry of Justice.

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

In April 2001 criminal proceedings were instituted against a former manager and sole shareholder of the applicant company on the suspicion of having committed tax evasion. Subsequently, prosecuting authorities seized the applicant company's financial and business documents which were, however, mixed with documents of other companies subjected to the investigation. According to the applicant company, the documents have never been returned to it.

On 13 September 2001 the prosecuting authorities seized CZK 8,861,401.13 (EUR 319,942) and USD 41,677.80 (EUR 29,769) deposited on the applicant company's bank accounts on the suspicion that these assets might have constituted a profit from criminal activities of the manager. The applicant company says that it was not involved in any business transactions investigated by the police and that its former manager is prosecuted for acts which are not in any way related to the business pursued by the applicant company. The criminal proceedings are still pending.

Meanwhile, numerous tax proceedings were brought against the applicant company in regard of the suspected retrenchment. They all were later discontinued as no tax evasion by the applicant company was detected.

On 14 April 2005 the applicant company requested that the seizure be lifted. Its request was dismissed by the Prague High Prosecutor (vrchní státní zástupce) on 24 June 2005. The prosecutor found irrelevant the applicant company's objection that the tax proceedings brought against it had been discontinued.

On 11 August 2005 the Prague High Court (vrchní soud) dismissed the applicant company's appeal.

In its constitutional appeal, the applicant company claimed that the seizure of its assets was disproportionate due to its excessive length. On 9 March 2006 the Constitutional Court (Ústavní soud) declared the appeal inadmissible, finding that a fair balance between the general interest of the society and those of the applicant company arising from its fundamental rights had been struck. The decision was served on the applicant company's lawyer on 16 March 2006.

On 9 October 2006 the High Prosecutor dismissed the applicant company's new request for partial lifting of the seizure. The High Court upheld this decision on 21 November 2006, but on 30 January 2008 the Constitutional Court quashed that decision finding a violation of the applicant company's right to property. It held that the length of the seizure, over six years, was unreasonable, which thus disrupted the fair balance between the general interest of fighting serious crime and the protection of the rights of the applicant company. On 11 March 2008 the High Prosecutor lifted fully the seizure of the applicant company's bank accounts.


David Thór Björgvinsson;Ján Šikuta;Lech Garlicki;Mihai Poalelungi;Nicolas Bratza;Päivi Hirvelä

The applicant, Mrs Anne Williams, is a British national who was born in 1951 and lives in Chester. She was represented before the Court by Mr E. Abrahamson, a lawyer practising in Liverpool.

The applicant is the mother of Kevin Williams who died, aged 15 years old, at Hillsborough football stadium.

On 15 April 1989, Kevin Williams went to Sheffield to watch Liverpool play in the semi-final of the Football Association Cup at Sheffield Wednesday’s football ground, Hillsborough Stadium. The kick-off of the match was scheduled for 3p.m. Prior to kick-off there was a huge build-up of supporters outside the Leppings Lane entrance to the ground which in turn caused pressure on those trying to get into the ground through the turnstiles.

At 2.52p.m. Chief Superintendent Duckenfield, who was the police officer in charge of crowd control at the match, decided to authorise the opening of the exit gates at the Leppings Lane entrance in order to relieve the pressure at the turnstiles. The opening of one of the gates, gate C, resulted in a sudden influx of about 2,000 supporters into the ground, the majority of whom continued through a tunnel into the central spectator pens, 3 and 4. Each of these pens was capable of holding just over 1,000 people but both were already full when the gate was opened. The result of the sudden influx was the build-up of intolerable pressure on supporters at the front of the pens.

Notwithstanding the late arrival of supporters, Chief Superintendent Duckenfield decided not to delay kick-off. The match started as scheduled at 3p.m. Shortly after the match began, the pressure in the pens intensified and supporters were crushed against the wall at the front of the pens and suffered severe crush injuries. The match was stopped at 3.06p.m. At 3.15p.m. the first St John’s Ambulance crew arrived. A major incident vehicle was called at 3.29p.m. and arrived at 3.45p.m. The applicant’s son was certified dead at 4.06p.m. 96 supporters died following injuries sustained in the disaster, including the applicant’s son.

On 17 April 1989, the then Secretary of State for the Home Department ordered Lord Justice Taylor (as he then was) to conduct an inquiry. His terms of reference were:

“To inquire into the events at Sheffield Wednesday Football Ground on 15 April 1989 and to make recommendations about the needs of crowd control and safety at sports events.”

The West Midlands police were appointed to investigate the incident and gather evidence for the Taylor Inquiry and assisted Her Majesty’s Coroner for South West Yorkshire, Dr Popper, who was to conduct the inquests.

Lord Justice Taylor’s interim report was published on 4 August 1989. His final report was published in January 1990. Lord Justice Taylor heard oral evidence from 174 witnesses on a wide range of issues leading to the disaster. He also received a number of written submissions. He found that there were a number of causes for the disaster but that the immediate cause was the failure, when gate C was opened, to cut off access to the central pens which were already overfull. Lord Justice Taylor concluded, at paragraph 278 of his interim report, that:

“The main cause of the disaster was the failure of police control.”

On 18 April 1989, the Coroner formally opened and adjourned the inquests into the deaths of the 95 victims of the disaster (the 96th victim suffered severe brain damage that left him in a persistent vegetative state and died in 1993). The Director of Public Prosecutions (“DPP”) had been asked to consider bringing criminal charges arising out of the incident and the Coroner decided that the inquests could not be completed until the DPP had reached a decision on whether criminal proceedings would be pursued.

In February 1990, following consultation with the DPP and a solicitor connected to the Hillsborough Steering Committee, the Coroner decided that the inquests could resume on a limited basis. Although the question of “how” the deceased died would be reserved for a later date, the questions of “who”, “when” and “where” could be dealt with before the DPP’s decision. The Coroner recognised that care would have to be taken to ensure no prejudice to any future criminal prosecutions.

Preliminary inquests (“mini-inquests”) were held for each of the individuals who had died between 18 April and 4 May 1990. At the mini-inquests, West Midlands police officers summarised statements relating to each of the deceased, covering the evidence they had gathered in the course of their investigations. The officers’ evidence was given orally and on oath. The written summaries themselves were not read in evidence. Evidence was also heard from pathologists who had carried out all the autopsies within 48 hours of the incident. In the majority of cases, the cause of death was given as traumatic asphyxia and it was said that the individuals would have been unconscious within a matter of seconds and would have died within a matter of minutes thereafter.

On 2 May 1990, evidence from a statement made by Special Police Constable (“SPC”) Martin on 8 May 1989 was summarised at the mini-inquest into Kevin Williams’ death. SPC Martin had helped carry Kevin off the pitch into the gymnasium. Her evidence suggested that Kevin was still alive at 4p.m. Her statement indicated that Kevin had opened his eyes and muttered the word “mum” after he had been taken to the gymnasium. A statement from Police Constable (“PC”) Bruder was also orally summarised at the mini-inquest. His evidence suggested that Kevin was possibly still alive after 3.32p.m. PC Bruder reported having seen Kevin after that time have convulsions. PC Bruder also thought he had felt a pulse and said in his statement that he had seen Kevin vomit. Despite this evidence, the pathologist considered that Kevin’s death must have occurred before SPC Martin attended him.

On 3 May 1990, PC Bruder amended his statement. He accepted that the “convulsions” he had witnessed may merely have been “twitching”. He also accepted that he may have been wrong about feeling a pulse and that while he had thought he saw Kevin being sick, it may have been merely spittle or phlegm.

In September 1990, the Coroner was advised that the DPP had decided not to prosecute anyone in connection with the incident. The inquest into the question “how” the deceased died began on 19 November 1990. Prior to this, the Coroner advised that he had decided to impose a cut-off time for evidence which he would hear in relation to the incident. Accordingly, he would hear evidence of events which took place before 3.15p.m. only. He was of the view that on the pathological evidence available to him, permanent irrecoverable damage had by then been suffered by all the deceased. In reaching this view, the Coroner took into account the interim report of the Taylor Inquiry. Counsel for 43 of the families argued against the cut-off point, primarily on the ground that there was evidence to suggest that not all the victims were dead by 3.15p.m. He argued that there had been no investigation or systemic analysis of the organisation or planning of the emergency response and what might have made a difference. The Coroner rejected these submissions.

The resumed inquest heard evidence regarding the arrival of supporters, their approach to the football ground, the entrance to the ground and the build-up of supporters, the opening of the gates, the internal layout of the ground and a broken crowd barrier. No evidence was heard during the resumed inquest regarding the emergency response, its planning or its possible effect on the death of Kevin Williams.

The mini-inquests and the resumed inquest heard, in total, around 200 witnesses. In summing up, the Coroner left to the jury the verdicts of unlawful killing, accidental death and open verdict. On 28 March 1991, the jury reached a majority verdict (9-2) of accidental death in all cases.

Following the inquest, SPC Martin and PC Bruder both stated that they changed their statements following visits from West Midlands Police. SPC Martin claimed that she had changed her statement as a result of harassment by a police officer. Medical evidence prepared in 1992 and 1994 by specialists at the Department of Forensic Medicine at Guy’s Hospital in London and the Department of Forensic Pathology at the University of Liverpool respectively suggested that the officers may have been correct in their original statements and that Kevin Williams may have been alive after 3.15p.m. and even spoken a word or two.

On 6 April 1993, relatives of six of the deceased, including the applicant, were granted permission to judicially review the inquest verdict of accidental death. On 5 November 1994, the Divisional Court refused to quash the verdict.

The DPP was instructed to consider bringing criminal charges in respect of the incident. In 1990, he decided not to pursue any criminal proceedings.

In June 1990, the applicant lost her civil claim for pre-death suffering because the pathological evidence given at the inquest was that none of the deceased would have felt any pain.

The Police Complaints Authority (“PCA”) appointed the West Midlands Police to supervise a disciplinary investigation into the conduct of South Yorkshire Police officers. In July 1991, the PCA directed the South Yorkshire Police to prefer disciplinary charges against Superintendent Murray, for one charge of neglect of duty, and Chief Superintendent Duckenfield, for four charges of neglect of duty and one of discreditable conduct. However, in November 1991, Chief Superintendent Duckenfield was allowed to retire on health grounds. The disciplinary charges against him were accordingly discontinued as under police regulations, a disciplinary hearing could not proceed when a police officer retired. The PCA decided on 13 January 1992 to withdraw the charge against Superintendent Murray because it considered that it would have been unfair to pursue what was, in effect, a joint charge in the absence of the more senior officer.

Under section 13 of the Coroners Act 1988, the Attorney General may grant leave to apply to the High Court for another inquest to be held. That power can be exercised where there has been insufficiency of inquiry, where new facts have been uncovered or where it is necessary or desirable that a new inquest be held.

In 1992, a first request for leave was made to the Attorney General on the basis of new evidence. This request was rejected in August 1992.

In June 1997, the Secretary of State for the Home Department ordered a “scrutiny” of new evidence uncovered since the Taylor Inquiry. Lord Justice Stuart-Smith was appointed to:

“ascertain whether any evidence exists relating to the disaster at the Hillsborough Stadium on 15 April 1989 which was not available:

(a) to the Inquiry conducted by the late Lord Taylor; or

(b) to the Director of Public Prosecutions or the Attorney General for the purpose of discharging their respective statutory responsibilities; or

(c) to the Chief Officer of South Yorkshire Police in relation to police disciplinary matters;

And in relation to (a) to advise whether any evidence previously not available is of such significance as to justify establishment ... of a further public inquiry; and in relation to (b) and (c) to draw to their attention any evidence not previously considered by them which may be relevant to their respective duties; and to advise whether there is any other action which should be taken in the public interest.”

Lord Justice Stuart-Smith received a number of written submissions and evidence in the course of his inquiry. He also heard oral evidence, including evidence from SPC Martin and PC Bruder. Although he sat in private, his report was published in February 1998 and set out in detail the evidence and his findings. He concluded:

“I have come to the clear conclusion that there is no basis upon which there should be a further Judicial Inquiry or a reopening of Lord Taylor’s Inquiry. There is no basis for a renewed application to the Divisional Court or for the Attorney General to exercise his powers under the Coroners Act 1988. I do not consider that there is any material which should be put before the Director of Public Prosecutions or the Police Complaints Authority which might cause them to reconsider the decisions they have already taken. Nor do I consider that there is any justification for setting up any further inquiry into the performance of the emergency and hospital services. I have carefully considered the circumstances in which alterations were made to some of the self-written statements of South Yorkshire Police officers, but I do not consider that there is any occasion for any further investigation.”

In June 1998, the Hillsborough Family Support Group commenced private prosecutions against former Chief Superintendent Duckenfield and Superintendent Murray, alleging two specimen charges of unlawful killing and wilful misfeasance in public office. They were committed to stand trial at Leeds Crown Court on 6 June 2000. The trial took place between 6 June and 24 July 2000. Superintendent Murray was acquitted on 20 July 2000. On 24 July 2000, the jury announced that they could not reach a verdict on Chief Superintendent Duckenfield and were discharged. On 26 July 2000, the Hillsborough Family Support Group made an application for re-trial of Chief Superintendent Duckenfield. The application was refused on the grounds that he would not get a fair trial.

Following the entry into force of the Human Rights Act 1998, the applicant made a second request to the Attorney General in 2006 to have her case referred to the High Court. The application was made on the basis of the alleged insufficiency of the inquiry into Kevin Williams’ death on the ground that there had been no Article 2-compliant investigation; and on the basis of new evidence. Her request was refused on 12 February 2006.

The Coroner’s Act 1988 provides as follows:

“13 Order to hold inquest

(1) This section applies where, on an application by or under the authority of the Attorney-General, the High Court is satisfied as respects a coroner (“the coroner concerned”) either—

(a) that he refuses or neglects to hold an inquest which ought to be held; or

(b) where an inquest has been held by him, that (whether by reason of fraud, rejection of evidence, irregularity of proceedings, insufficiency of inquiry, the discovery of new facts or evidence or otherwise) it is necessary or desirable in the interests of justice that another inquest should be held.”