The applicant, Mrs Galina Ivanovna Chernysheva, is a Russian national, who was born in 1961 and lives in Kaliningrad. The applicant is a journalist writing for the Citizen («Гражданин») newspaper published by the Kaliningrad town administration. The applicant is represented before the Court by Mr Yu. Shitikov, a lawyer practising in Kaliningrad. The respondent Government are represented by Mr P. Laptev, Representative of the Russian Federation at the European Court of Human Rights.

On 27 April 2000 the applicant published an article under the headline “Evil Flat of Prosecutor Tkach” («Нехорошая квартира прокурора Ткача») in the Citizen. The article concerned a civil dispute between Mrs Tkach, the spouse of the prosecutor of the Moskovskiy district of Kaliningrad Mr Tkach, and Mr and Mrs Sh., her neighbours who lived in the attic, right above Mrs Tkach’s flat. In 1998 Mrs Tkach and Mr T., another neighbour, had sued Mr and Mrs Sh. for an injunction to stop unauthorised construction works in the attic. The first-instance court had dismissed the suit. However, the applicant continued, the appeal court quashed the judgment in the part concerning the claims of Mrs Tkach, but not the claims of Mr T., notwithstanding the fact that their claims had been identical. The applicant alleged that this was only possible after Mr M., a colleague of Mr Tkach and prosecutor of the Tsentralniy district, intervened in the proceedings. In the article the applicant critically described the new hearing on Mrs Tkach’s claims on 27 March 2000 and strongly disagreed with the court judgment made in favour of Mrs Tkach. The article implied that the parties to the dispute were not equal before the law precisely because the plaintiff’s husband was a prosecutor.

On 3 May 2000 the prosecutor Tkach filed an action against the applicant and the Citizen for the protection of his honour, dignity and professional reputation and compensation for non-pecuniary damage. The statement of claim was printed on the letterhead of the prosecutor’s office of the Moskovskiy district of Kaliningrad and signed “the prosecutor of the Moskovskiy district, senior justice advisor, V.N. Tkach”. It also bore the outgoing registration number of the prosecutor’s office.

Mr Tkach argued as follows:

“1. The said article puts a special emphasis on my actions, allegedly unworthy of a prosecutor; however, my professional activities and my position are in no way related to the essence of the judicial dispute in question: I was not a plaintiff in the dispute, [neither] as an individual nor as a prosecutor.

...No journalist should be allowed to make [the living conditions] of a prosecutor the subject of a public discussion. No one has the right to invade my private life, I did not break the law living in my flat – neither as a prosecutor nor as an individual.”

Mr Tkach also submitted:

“In accordance with Article 43 of the Federal Law on Prosecutors in the Russian Federation verification of information on a violation allegedly committed by a prosecutor shall be the exclusive competence of prosecutors’ offices. This law applies to all citizens without exception, including journalists, who have no right to collect information on private lives of prosecutors and investigators and even more so to publish it in the media without consent of a prosecutor’s hierarchical superior.”

Mr Tkach explained that the action against the neighbours had been lodged by his wife who was also the owner of the flat. He denied that he or his wife had ever wanted to improve their living conditions at the expense of their neighbours. On this ground he requested the court to declare that the following extracts from the applicant’s article had damaged his honour and his professional reputation of a prosecutor:

“‘Every prosecutor has an evil flat of his own’. These words are not mine. This is what people say. You can think anything you want. But in our case the issue is that Mr and Mrs Tkach are dissatisfied with their housing conditions. They want an improvement. At the expense of their neighbours, Mr and Mrs Sh.”

“Make way! The prosecutors’ couple comes.”

“In order to satisfy [the claim of] Mr and Mrs Tkach and grant them [the right to use a part of the attic]... the administration of the Tsentralniy district will apparently have to:

- build a new entrance into the flat of Mr and Mrs Sh., which had already existed when they moved in;

- brick in the two doors leading into their rooms and cover the resulting wall with stucco and wallpaper;

- convert two separate rooms into one with the only one entrance-exit through the kitchen.”

“P.S. The prosecutor Tkach has a wonderful three-room flat, its total surface measures almost 100 square metres and the ceilings are three metres high.”

[“«У каждого прокурора есть своя нехорошая квартира». Это не мои слова. Это – уже фольклор. Здесь можно думать всё, что угодно. Но в нашем случае речь идет о том, что Ткачи недовольны своими квартирными условиями. Они хотят их улучшить. За счет соседей Ш.

Дорогу! Чета прокуроров идет!

Чтобы удовлетворить Ткачей, отдав им пазуху... администрации Центрального района, видимо, придется:

- перепланировать новый вход в квартиру Ш., который уже был, когда они вселялись;

- заложить кирпичами две двери в их комнаты, образовавшуюся стену зашпаклевать, поклеить обои;

- две их раздельные комнаты превратить в смежные, с единственным входом-выходом – в кухню.

P.S. У прокурора Ткача прекрасная трехкомнатная квартира, общей площадью почти 100 кв. м, с трехметровыми потолками.”]

The court accepted the defamation action and ordered a linguistic expert examination of the article at issue.

On 18 August 2000 the acting prosecutor of the Kaliningrad Region (и.о. прокурора Калининградской области) issued to Mr Tkach the following power of attorney printed on the prosecutor’s office letterhead and sealed with the prosecutor’s office stamp:

“[Hereby] the prosecutor’s office of the Kaliningrad Region represented by the acting prosecutor [Mr] Vyacheslav Fedorovich Chulkov authorises the prosecutor of the Moskovskiy district, [Mr] Vladimir Nikolayevich Tkach <...> to take part in civil proceedings before all judicial authorities, including [the action] for the protection of the honour and dignity of the prosecutor of the Moskovskiy district before the Tsentralniy District Court of Kaliningrad, having all rights granted by law to a plaintiff, defendant or third parties, [including the right] to withdraw the action in whole or in part, accept the claim, alter the subject of an action, conclude a friendly settlement, delegate the powers to an attorney (substitution), appeal against a court decision, obtain writs of execution, recover the awarded property or moneys, and sign all necessary documents on my behalf.”

On the same day Mr Tkach submitted a new version of his action. It was drafted on the letterhead of the prosecutor’s office of the Moskovskiy district of Kaliningrad and the plaintiff was designated as “the prosecutor of the Moskovskiy district, senior justice advisor, Mr Tkach”. The statement of claim bore an outgoing registration number of the prosecutor’s office. In the new version of the statement Mr Tkach referred to the results of an internal inquiry carried out by the prosecutor’s office of the Kaliningrad Region on 6 July 2000 in connection with the applicant’s article. According to Mr Tkach, the inquiry did not establish any violations or unethical behaviour on the part of Mr Tkach and found that the facts described in the articles were untrue. Mr Tkach submitted that the applicant had failed in her professional duty to publish only accurate information and abused her rights as a journalist because she had allegedly defamed him exclusively on the ground of his occupation, place of residence and professional position. Mr Tkach asked for compensation for non-pecuniary damage to be transferred to the bank account of the prosecutor’s office of the Kaliningrad Region. As to the remainder, Mr Tkach repeated his initial claims, but he also added that the title of the article in question be declared untrue and damaging to his reputation.

On 16 November 2000 the applicant published a new article under the title “Prosecutor Tkach and freedom of expression – 4 (the story continues)” («Прокурор Ткач и свобода слова – 4 (эпопея продолжается)»). The article related once again the story about the civil action brought by Mrs Tkach against her neighbours and alleged that only Mr Tkach’s intervention in his professional capacity had secured an award in favour of his spouse. The article also criticised Mr Chulkov’s decision to issue an official power of attorney to Mr Tkach for the protection of the latter’s personal interests.

On 4 December 2000 Mr Tkach filed a new action against the applicant and her newspaper. The statement of claim was drafted on plain paper and contained no reference to Mr Tkach’s position or professional affiliation. Mr Tkach claimed that the following extracts in the article of 16 November had damaged his honour and reputation:

“...the purpose of the claim [was] to prevent a reconstruction of the attic. Undertaken on legal grounds in accordance with a resolution of the head of the Tsentralniy district. The first attempt missed the target: the court did not grant the action. But when a subsequent action was filed and her husband – the prosecutor of the Moskovskiy District Mr Tkach – began to show up at the hearings, the judgment was made in [Mrs Tkach’s] favour...

But here is the issue: had he been a pensioner, just like his neighbour, the action would have never been granted.”

[“Смысл заявления – запретить реконструкцию чердака. Законно начатую согласно постановлению главы Центрального района. С первой попытки цель не была достигнута – суд не удовлетворил просьбу. Но когда был подан следующий иск и на заседаниях стал появляться ее муж – прокурор Московского района Ткач – решение вынесли в ее пользу...

Но ведь суть в чем: если бы он был пенсионером, как его сосед, иск не был бы выигран.“]

The applicant submits that between May and December 2000 Mr Tkach lodged in total six actions against her and the Citizen, of which four were lodged on behalf of the prosecutor’s office and the remaining two in Mr Tkach’s own name.

On 19 December 2000 the applicant lodged a counterclaim against Mr Tkach. The applicant submitted that Mr Tkach’s statement “No journalist should be allowed to make [the living conditions] of a prosecutor the subject of a public discussion” had violated her right to freedom of expression and claimed compensation for non-pecuniary damage.

On 24 January 2001 Mr Tkach asked the court to leave the statements of claim lodged on behalf of the prosecutor’s office without examination because he had already brought identical claims on his own behalf.

On 26 January 2001 the Tsentralniy District Court of Kaliningrad, by an interim decision (определение), granted Mr Tkach’s request. According to the minutes of the court hearing of 26 January 2001, the applicant and her representative did not object to continuation of the proceedings on the basis of Mr Tkach’s statements of claim which he had lodged in his personal capacity.

On 19 February 2001 the Tsentralniy District Court of Kaliningrad joined all actions and delivered a judgment.

The court found that the contested extracts concerned the quality of Mr Tkach’s living conditions and his role in the civil proceedings. It scrutinised the judgments made in the civil action lodged by Mrs Tkach and the results of the inquiry of the prosecutor’s office (of 6 July 2000) and came to the conclusion that the facts related in the article were untrue. The court found no evidence that Mr Tkach, in his professional capacity, had exercised any undue influence on the courts. The court held:

“Therefore, having examined the evidence and assessed the contents of the article as a whole, including its title ‘Evil Flat of Prosecutor Tkach’, and having regard to the fact how a reasonable member of the society would perceive this message, the court comes to the conclusion that the author’s account of the essence of the civil dispute and the author’s expressed opinion do not reflect the actual situation.

The word sequences and semantic units in the text, designated by the plaintiff V.N.Tkach, fall within the ambit of the concept of ‘untrue information’. The substantial and semantic contents of the texts in question also infringe the legally protected rights and interests of the plaintiff, in particular, his professional reputation.

Under these circumstances the court considers that the claims lodged by Mr Tkach shall be granted.”

The court pointed out that the principle of equality of arms would prevent a prosecutor from resorting in the civil proceedings to the special powers conferred on the prosecutor’s office. For this reason the court approved Mr Tkach’s decision to withdraw the four actions which he had lodged on behalf of the prosecutor’s office.

The court also accepted the applicant’s counterclaim and held that Mr Tkach’s statement challenged by the applicant encroached on the applicant’s protected journalistic rights.

The court did not award compensation for non-pecuniary damage to either party.

On 2 March 2001 the applicant appealed against the judgment. On the same day the prosecutor of the Tsentralniy district, Mr S. Myashin, lodged a prosecutor’s appeal (кассационный протест) in the interests of Mr Tkach.

On 21 March 2001 the Kaliningrad Regional Court quashed the judgment of 19 February 2001 on procedural grounds and remitted the case for a new examination.

On 24 August 2001 the Tsentralniy District Court of Kaliningrad delivered a new judgment in the matter. In substance, the court followed the reasoning of the judgment of 19 February 2001. The court noted that the judgment made by the district court on Mrs Tkach’s claim had been subsequently upheld by the Kaliningrad Regional Court on 7 July 2000 and also scrutinised by the prosecutor in charge of supervision over the lawfulness of court decisions in civil cases who reported on 4 July 2000 that no violation had taken place. The Kaliningrad Regional prosecutor’s office and the Presidium of the Kaliningrad Regional Court refused to lodge applications for supervisory review as no breaches were found and a request for review was therefore unsubstantiated. The court observed that Mr Tkach’s official position was in no way related to the substance of the civil dispute in question; he was not a plaintiff or a party to the dispute and there were no evidence that he had exercised pressure on the court. Moreover, the first deputy mayor of Kaliningrad and the head of the Tsentralniy district administration confirmed that neither Mr Tkach nor his spouse had ever applied for permission to reconstruct their flat or otherwise improve their living conditions at the expense of neighbours Sh. On the other hand, the court had regard to the overwhelming evidence showing that neighbours Sh. maintained the attic in a dilapidated state, flooded Mrs Tkach’s flat and refused access to the attic to housing maintenance workers.

The court held that the information in the articles of 27 April and 16 November 2000 was untrue and damaging to the plaintiff’s honour and professional reputation and caused him non-pecuniary damage. It awarded Mr Tkach RUR 3,000 (EUR 114) payable jointly by the applicant and her newspaper.

Having examined the applicant’s counterclaim against Mr Tkach, the court found that the statement of claim of 3 May 2000 had been indeed submitted on the prosecutor’s office stationary, yet it did not specifically mention that the claim had been lodged in the State or public interests. The court held that the contested statement should be interpreted as a private person’s position rather than as a prosecutor’s injunction. An application to a court for the protection of one’s rights containing arguments in support of the plaintiff’s cause cannot be held to infringe rights of others. Moreover, the court had regard to the decision of the district court of 26 January 2001 whereby the contested statement of claim had been left without examination. The applicant’s counterclaim was therefore dismissed.

The court noted in the judgment that the representatives of the applicant, Messrs Stepanov and Zinovyev, did not attend after a break, on the second day of the hearing, despite having been duly informed of the time and place of the hearing agreed between the parties. The court observed that they failed to show any valid reasons for their absence, the documents on the file were sufficient for examination of the merits and that the other party did not object to continuing the examination in their absence.

On 30 August 2001 the applicant appealed against the judgment. In her appeal the applicant submitted, in particular, that the judgment had been given without her or her representatives being present. She explained that the hearing had begun on Thursday, 23 August. At 5.45 p.m. the judge had announced a break. The applicant alleged that she had not been informed when the hearing would resume. On Monday, 27 August, the applicant’s representative arrived at the courtroom only to find that the judgment had been delivered on 24 August. In her appeal the applicant also challenged the merits of the judgment.

On 10 October 2001 the Kaliningrad Regional Court upheld in substance the judgment of 24 August 2001. However, the court reduced the amount of the award to RUR 250 (EUR 9) for the applicant and to RUR 500 (EUR 18) for the Citizen. The court reasoned its decision to reduce the award as follows:

“... the extent of the applicants’ liability for dissemination of untrue information is insignificant because the judicial dispute with Mr and Mrs Sh. concerning the attic had indeed taken place, and the dissemination of damaging and inaccurate information is a result of incorrect, erroneous evaluation of the circumstances of that dispute.”

The court also found that the applicant and her representative had been duly notified that the hearing would resume at 10.30 a.m. on 24 August and their consent had been noted in the transcript of the hearing on 23 August.

On 1 November 2001 and 6 February 2002 Mr Tkach sent a request to the Head of the Town Council (председатель городского Совета депутатов) to impose a disciplinary sanction on the editor-in-chief of the Citizen and the applicant herself with a view of their future dismissal. The sanction was to be imposed for dissemination of untrue information.

On 18 April 2002 the first deputy prosecutor of the Kaliningrad Region, Mr Tyapyshev, sent a “request to remedy the violation” (представление об устранении нарушения) to the editor-in-chief of the applicant’s newspaper. The prosecutor requested, inter alia, a decision to apply disciplinary sanctions on the applicant in connection with her having disseminated the information damaging the reputation of the prosecutor of the Moskovskiy district, Mr Tkach.

On an unspecified date the applicant, her former representative Mr Stepanov and the editor-in-chief of the newspaper lodged a civil action against Mr Tkach for the protection of their honour, dignity and professional reputation and compensation for non-pecuniary damage. They submitted that at the oral hearing on 23 August 2001 in the Tsentralniy District Court of Kaliningrad and in his written submissions to that court Mr Tkach referred to them as “slanderers” who “badgered” him by publishing “ravings” about a non-existent problem and wrote letters to the authorities insisting that the applicant and the editor be dismissed.

On 17 April 2002 the Tsentralniy District Court of Kaliningrad granted the defamation action lodged by the applicant and her colleagues and ordered Mr Tkach to pay RUR 250 (EUR 9) to each of the applicant and Mr Stepanov. On 5 June 2002 the Kaliningrad Regional Court upheld, on Mr Tkach’s appeal, the judgment of 17 April 2002. On 25 November 2002 the Presidium of the Kaliningrad Regional Court refused the application for supervisory review lodged by the acting prosecutor of the Kaliningrad Region against the judgment of 17 April 2002.

On 12 November 2002 the Tsentralniy District Court of Kaliningrad granted yet another defamation action lodged by the applicant against Mr Tkach in connection with the letters which Mr Tkach had sent to the Mayor of Kaliningrad and to the Head of the Town Council. In these letters Mr Tkach requested that the municipal officials stop the publication of “slanderous” articles in the newspaper owned by the town administration. The court ordered Mr Tkach to pay RUR 250 to the applicant.

Article 29 of the Constitution of the Russian Federation guarantees freedom of ideas and expression, as well as freedom of mass media.

Article 152 of the Civil Code of the Russian Federation provides that an individual may seize a court with a request for refutation of information (сведения) damaging his or her honour, dignity or professional reputation unless the person who disseminated such information proves its accuracy. The individual may also claim compensation for losses and non-pecuniary damage sustained as a result of dissemination of such information.

The Code of Civil Procedure of the RSFSR (in force at the material time) provided as follows:

“A prosecutor may bring to a court a claim for the protection of rights and lawfully protected interests of other persons or enter the proceedings at any stage, if it is required for the protection of State or public interests or rights and lawfully protected interests of citizens.

The participation of a prosecutor in civil proceedings is mandatory in the cases where the law so provides or where the necessity of his participation in a specific case has been recognised by the court.

The prosecutor who participates in the proceedings may study the case materials, bring challenges, produce evidence, take part in the examination of evidence, lodge motions, state his opinion on issues arising in the course of the proceedings and on the merits of the case as a whole, as well as perform other procedural actions provided for by law. The prosecutor’s abandoning of a claim lodged for the protection of interests of another person does not impair that person’s right to have his case examined on the merits.”


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

Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Peer Lorenzen;Rait Maruste;Renate Jaeger;Stanislav Shevchuk

The applicant was born in 1946 and lives in Pasiky-Zubrytski.

Since 1974 the applicant has worked as a teacher in the Lviv Boarding School no. 6 for Children with Language Disorders (“the School”). In 1995 he was elected head of the school branch of the “VOST” - one of the two trade unions represented in the School.

On 12 January 1996 the local Board of Education employed Mrs P. to serve as a director, notwithstanding opposition from some staff, in particular the VOST members.

In May 1996 Mrs P. dismissed an employee, who was a VOST member, without the consent of the VOST. Subsequently, in 1998, this employee was reinstated as a result of a court action brought on her behalf by the VOST.

On 6 June 1996 Mrs P. refused to sign a collective agreement, signed by the VOST and the head of the second trade union present at the School.

On an unspecified date in late 1996, a former School driver who had been dismissed by Mrs P. for incompetence submitted a written statement to the applicant, alleging that in April 1996 Mrs P. had ordered him to unload ten boxes of humanitarian aid intended for the School at her father’s estate and that on many occasions she had used the school vehicle for personal purposes.

In early 1997 the applicant in his capacity as a trade union leader made several applications to the Control Inspection Department (Контрольно-ревізійне управління, a public audit service, scrutinising the use of funds by State-owned entities, “the KRU”), alleging that Mrs P. had abused her office and misused School property and funds. In particular he stated that Mrs P. had appropriated ten boxes of humanitarian aid, the School’s TV set, other video equipment and bricks from the school boundary wall which had been demolished. On several occasions the applicant also complained about the situation to Mr U., the regional leader of the VOST.

In response to these complaints in 1997 the KRU held several inquiries into the use of the School funds.

In its report of 28 February 1997, the KRU stated that there were no serious instances of mismanagement of the School’s property.

The KRU’s report of 26 March 1997, however, revealed certain shortcomings on the part of the School administration in the handling of humanitarian aid, charity and the bricks. However, no evidence was found that any of the humanitarian aid or charity monies or any bricks had been appropriated by Mrs P.

In April 1997 the applicant on behalf of the School branch of the VOST, Mr U. on behalf of the Regional VOST, and Mr N. on behalf of the local branch of the Ukrainian Conservative Party made a criminal complaint against Mrs P. to the Lychakivsky District Prosecutor’s Office (“the Prosecutor’s Office”) a criminal complaint against Mrs P., referring largely to the same circumstances as in the VOST’s complaints to the KRU. On 28 April 1997 the Prosecutor’s Office dismissed this complaint for want of evidence of criminal conduct on Mrs P.’s part. On 17 June 1997 a second criminal complaint was dismissed on the same ground. However, criminal proceedings were initiated into the circumstances of the disappearance of the TV set and the video equipment.

On 26 May 1997 several representatives of the Regional VOST picketed the Lychakivsky District Administration protesting against the alleged abuses by Mrs P. The participants in the picket carried placards with various slogans criticising Mrs. P. and her deputy Mrs N., as well as their supporters within the local administration. The slogans concerning Mrs P. read as follows: “Mrs P. and Mrs N. - return humanitarian aid and 20,000 bricks from the school wall to the disabled children”; “Boarding school no. 6 director Mrs P. and her clique of VOST persecutors [should be submitted] to court”; and “Mrs P. and Mrs N., sticky hands off the disabled children of Boarding school no. 6”.

In May 1998 Mrs P. brought a private prosecution against the applicant. She complained, in particular, that in his letters to the KRU and the Prosecutor’s Office the applicant had falsely accused her of abuse of office and misappropriation of public funds and that he had organised and participated in the picket of 26 May 1997, during which the demonstrators displayed offensive placards. Mrs P. further concluded that the applicant’s actions fell within the ambit of Article 125 § 2 (defamation in print) and § 3 (false accusation of serious crimes) and Article 126 (insult) of the Criminal Code of 1960 in force at the material time.

On 14 May 1998 a judge of the Lychakivsky District Court of Lviv found that the applicant’s conduct vis-à-vis Mrs P. fell within the ambit of Article 125 § 1 of the Criminal Code (simple defamation) and Article 126, and initiated criminal proceedings against the applicant. The judge further ordered that the applicant be placed under an undertaking not to abscond.

In the course of the investigation, the charges against the applicant were re-qualified from Article 125 § 1 to Article 125 § 3.

On 12 November 1999 the Prosecutors’ Office notified the applicant of his indictment under Article 125 § 3 and Article 126 of the Criminal Code.

On 15 November 1999 the investigation prepared a final bill of indictment under these provisions and gave the applicant access to the case file before its transfer for court proceedings.

On 26 January 2000 the Lychakivsky District Court held the first hearing in the applicant’s case.

In March 2000 the applicant’s case was transferred to the Shevchenkivsky District Court of Lviv (“the Shevchenkivsky Court”).

On 26 June 2001 the Shevchenkivsky Court found the applicant guilty of an offence under Article 125 § 3 as charged and dropped charges under Article 126 as redundant. It sentenced him to one year’s imprisonment suspended for one year and to a fine of 200 Ukrainian hryvnas (UAH). The court also allowed Mrs P.’s civil claim in part and ordered the applicant to pay her UAH 1,000 in non-pecuniary damages and UAH 100 in legal fees.

In its judgment the court established that in numerous letters signed by the applicant, Mrs P. had been baselessly accused of misappropriation of public funds. The court also found that the applicant had initiated and participated in the picketing of 26 May 1997, referring to various pieces of evidence, including submissions by several School employees that they had seen him during the picket holding a slogan.

The applicant appealed against the judgment of 26 June 2001. He alleged in particular that the prosecution had failed to prove that he had intentionally disseminated falsehoods. Furthermore, no attention had been accorded to the fact that he had acted in his official capacity as a local VOST leader, empowered by the union members to inform the authorities about Mrs P.’s official misconduct and that according to the findings of the KRU and the law-enforcement authorities his accusations had not been entirely baseless. The applicant further denied any involvement in the picketing, referring to his absence on the photographs of the picket made by the plaintiff as well as to a doctor’s certificate concerning his inpatient treatment until 27 May 1998. He also alleged that the case could not be considered under § 3 of Article 125 of the Criminal Code, as pursuant to the decision of 14 May 1998 criminal charges filed by Mrs P. under this provision had been re-qualified as charges under § 1 of Article 125.

On 21 August 2001 the Lviv Regional Court of Appeal heard the case in the applicant’s absence and upheld the judgment of 26 June 2001. It found, in particular, that the applicant’s guilt, including in respect of participation in the picketing, had been proved by numerous sources of evidence. In particular, several School employees attested to having seen the applicant holding a slogan during the picketing and his doctor stated that his treatment had not precluded him from leaving the hospital premises.

The applicant filed eleven cassation appeals, which were dismissed due to his failure to follow formalities envisaged by law. On 25 April 2003 a judge of the Supreme Court declared the applicant’s twelfth appeal in cassation, in which he raised essentially the same arguments as in his appeal, admissible.

On 13 November 2003 the Supreme Court upheld the previous judgments.

The text of Article 125 of the Code read as follows:

Defamation [Наклеп], namely the intentional dissemination of falsehoods aimed at damaging the reputation of another shall be punishable by ...

Defamation in print ... shall be punishable by ....

Defamation linked with an unfounded accusation of committing a grave offence shall be punishable by up to five years’ imprisonment.

Article 126 of the Code provided as follows:

“Insult [Образа], namely the intentional humiliation of the honour and dignity of a person expressed in an indecent form shall be punishable by ...”

Following a process of legislative reform, the New Ukrainian Criminal Code of 5 April 2001 no longer classifies defamation and insult as criminal offences.

The text of Article 27 of the Code of Criminal Procedure (governing the private prosecution proceedings, as in force before 21 June 2001) may be found in the judgment of 10 August 2006 in the case of Lyashko v. Ukraine (no. 21040/02, § 23).


Anatoly Kovler;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska

The applicant was born in 1938 and lives in Moscow.

On 1 February 2001 the applicant brought proceedings against a private company for breach of his patent rights.

By a judgment of 10 November 2002 the Zamoskvoretskiy District Court of Moscow (“the District Court”) dismissed his claim.

On 28 November 2003 the Moscow City Court (“the appeal court”) upheld the above judgment on appeal.

On 4 November 2000 the applicant instituted another set of proceedings against two private companies for breach of his patent rights.

The first hearing was scheduled by the District Court for 4 April 2001. However, the first hearing and the next four hearings did not take place because the judge was involved in different proceedings or was on vacation, or due to the respondents’ failure to appear. In the meantime the court sent inquiries to various State agencies for information about the respondents’ place of registration.

At the hearing of 13 December 2001 the applicant requested to change the names of the respondents, and the court repeatedly sent inquiries for information about their place of incorporation.

The next two hearings were cancelled due to the respondent’s default in appearance and because of the judge’s involvement in different proceedings.

At the hearing of 8 April 2002, following lack of information about the respondents’ exact whereabouts, the court suggested that the applicant notify them himself based on the information available to him.

At the hearing of 23 May 2002 the applicant relinquished his claims against one of the respondents and asked the court to invite a third party to join the proceedings.

On 7 August 2002 the applicant motioned to replace the initial respondents with a new set of five companies and specified his claims. On 11 September 2002 he relinquished his claims against one of the respondents.

The next three hearings were cancelled as the judge was involved in different proceedings.

The hearing of 1 November 2002 was postponed to allow a respondent to study the case.

The hearing of 10 November 2002 did not take place as the court did not have information about due notification of the respondents.

The next three hearings took place as scheduled.

On 9 December 2002 the court accepted the applicant’s relinquishment of his claim against two respondents and severed his claims against two other respondents into a separate case to avoid delay in the proceedings. By a judgment of the same date the District Court dismissed his claims against the remaining respondent.

On 16 December 2002 the applicant filed preliminary grounds of appeal and specified that he would submit reasoned grounds of appeal upon receipt of the reasoned judgment. On the same day the District Court left the appeal without consideration for failure to substantiate it and suggested that the applicant remedy this defect until 30 December 2002.

The applicant submitted copies of his complaints concerning failure of the District Court to produce the final text of the judgment of 9 December 2002 to the Zamoskvoretskiy District prosecutor’s office of 14 August 2003, to the appeal court of 8 September 2003 and 30 September 2004 and to the Judicial Qualifications Board of 8 April 2004. According to the applicant, in May and June he came to see the judge in his case, inquiring about the date of filing of the final text of the judgment at the registry.

The applicant submitted a copy of the cover of the case file with a handwritten note by a member of the court’s registry according to which he had received a copy of the judgment on 23 June 2005.

On 29 June 2005 the applicant submitted reasoned grounds of appeal of the judgment of 9 December 2002. The heading of the document includes a mention that the final text of the judgment had been obtained by the claimant on 23 June 2005.

On 30 June 2005 the District Court returned the applicant’s appeal as submitted outside the procedural time-limit. This decision was set aside by the appeal court on 27 October 2005. The court did not give any reasons for its decision.

On 14 March 2006 the Moscow City Court upheld the judgment of 9 December 2002 on appeal.

Article 199 of the Code of Civil Procedure of Russia (in force since 14 November 2002) provides that drafting of the final reasoned text of the judgment may be postponed for no longer than five days after termination of the proceedings in the case.


David Thór Björgvinsson;Giorgio Malinverni;Guido Raimondi

The applicant was born in 1946 and lives in Istanbul.

On an unspecified date in the late 1980s the General Directorate of National Roads and Highways (Devlet Karayolları Genel Müdürlüğü) (“the General Directorate”) decided to partially expropriate the applicant’s land located in the Küçükçekmece district of Istanbul. The applicant only found out about this expropriation in May 2004.

On 21 May 2004 the applicant brought a civil action before the Küçükçekmece Civil Court for additional expropriation compensation.

On 21 June 2004 the title to the property was transferred to the General Directorate.

On 19 July 2005 the Küçükçekmece Civil Court awarded the applicant 783,749,741,900 Turkish liras (TRL) as additional compensation, plus interest at the statutory rate.

On 6 March 2006 the Court of Cassation upheld the first-instance court’s judgment.

The applicant subsequently initiated execution proceedings before the Şişli Execution Office to obtain her additional compensation.

On 31 July 2008 the applicant received a partial payment of 1,159,699.20 Turkish liras (TRY).

On 5 August 2008 the applicant brought a case before the Şişli Execution Court in respect of the General Directorate’s outstanding debt and the interest rate that should be applied to that amount.

On 24 October 2008 the Şişli Execution Court held that the General Directorate had an outstanding debt of TRY 479,605.44, payable with an interest rate of 30% running from 31 July 2008.

On 14 November 2008 the General Directorate appealed the judgment of the Şişli Execution Court. On 2 June 2009 the Court of Cassation upheld that judgment.

On 12 April 2010 the General Directorate paid the applicant TRY 745,797.18 to discharge its outstanding debt, together with interest.

The relevant domestic law and practice are set out in the cases of Akkuş v. Turkey (judgment of 9 July 1997, Reports of Judgments and Decisions 1997-IV); Aka v. Turkey (judgment of 23 September 1998, Reports 1998-VI); Gaganuş and Others v. Turkey (no. 39335/98, §§ 15-19, 5 June 2001); Ak v. Turkey (no. 27150/02, §§ 11-13, 31 July 2007); Sarıca and Dilaver v. Turkey, no. 11765/05, § 26, ECHR 2010...


The applicant, Mrs Ines Brzank, is a German national who was born in 1969 and lives in Oschatz.

The applicant is a practising lawyer who specialises, inter alia, in sports law. She distributed a leaflet containing her curriculum vitae, which mentioned her career as an athlete in the national team of the German Democratic Republic and that she had won several international tournaments. Also, the applicant listed in the leaflet her fees for a first legal consultation, depending on the value in dispute, in matters concerning private litigation and, depending on the duration of the consultation, in matters concerning family law, labour law and criminal law. Her highest fee was 333 German marks (DEM). At the bottom of the list, she put an asterisked footnote that the highest fee for a first consultation permitted under the applicable law, then the Federal Scale of Fees for Lawyers (Bundesrechtsanwaltsgebührenordnung), was DEM 350. The latter fee was therefore higher than any of the fees the applicant had listed.

Another lawyer who practised in the same town as the applicant lodged an application for interim measures, and as a result the Leipzig Regional Court provisionally ordered, in a judgment of 7 November 2001, the applicant to refrain from referring to her former sports career in her advertising and from listing her fees for first legal consultations on matters of family and labour law with the above-mentioned footnote. An appeal by the applicant was dismissed by the Dresden Court of Appeal on 5 February 2002.

In the main proceedings, by judgment of 17 April 2002, the Leipzig Regional Court repeated the above order and included an order to refrain from listing in the footnote to the leaflet the fees for all first legal consultations, subject to a fine of 250,000 euros (EUR) for non-observance of the order. It based the claimant’s request for an injunction (Unterlassungsanspruch) on sections 1 and 3 of the Unfair Competition Act in conjunction with section 43b of the Federal Lawyers Act (see relevant domestic law section). The Leipzig Regional Court reasoned that lawyers were only allowed to use factual information whose form and content was connected with the profession in their advertising. It reasoned that the reference to her former sports career lacked any such connection with her profession as a lawyer.

As to the list of her legal fees containing the asterisked footnote, it noted that the applicant had made a comparison between her fees for a first legal consultation and the fees permitted under the applicable law. Ordinary citizens however would not be aware that the applicable law gave lawyers the discretion to charge a fee for a first consultation ranging between a tenth of that fee and the full amount, and that the fees varied according to the value in dispute. After comparing the applicant’s fees with the amount mentioned in the footnote, an ordinary citizen would assume that any other lawyer might charge DEM 350 for a first legal consultation, whereas the maximum fee the applicant charged was DEM 333. Therefore, the leaflet might give the impression that the applicant’s fees were normally lower than the fees of those lawyers who used the full discretion permitted under the applicable law. The Leipzig Regional Court noted however that this was not the case, pointing out that some of the applicant’s fees for lower values in dispute were considerably higher than the fees permitted under the applicable law. It also pointed out that the footnote referred to a fee of DEM 350 without mentioning that this was the full fee for consultations only for disputes with a value above DEM 10,000. Therefore, ordinary clients could be misled into assuming that the fee of DEM 350 applied to all values in dispute and that the applicant’s fees were normally lower than the fees permitted under the applicable law. Therefore, the list with the footnote had to be considered “misleading advertising” within the meaning of section 3 of the Unfair Competition Act.

On 27 September 2002, the Dresden Court of Appeal dismissed an appeal lodged by the applicant. It reasoned that, contrary to the applicant’s submission, she had not generally been prohibited from mentioning her fees in her advertising. It was the specific form of the advertisement in conjunction with the footnote that had been regarded as misleading by the Leipzig Regional Court.

On 4 August 2003 the Federal Constitutional Court partly quashed the judgments of the Leipzig Regional Court of 29 May 2002 and of the Dresden Court of Appeal of 27 August 2002 in so far as they concerned the prohibition on referring to the applicant’s sports career in the leaflet. It took the view that, because the applicant partly specialised in legal disputes concerning sports, the reference did have a direct connection to her profession. Therefore, the prohibition violated the applicant’s freedom to choose a profession under Article 12 of the German Basic Law. With regard to the prohibition on listing her fees in the asterisked footnote, the Federal Constitutional Court refused to admit the constitutional complaint for adjudication. It found that Article 12 of the Basic Law included advertising for professional services, and that the professions were allowed to advertise as long as they provided factual information which was not misleading. It was not objectionable from a constitutional point of view that the domestic courts had regarded the list with the asterisked footnote as misleading and that they had interpreted that list in context and from the perspective of an ordinary citizen. By using the footnote, the applicant had made a comparison between her “prices” and the highest fees permitted under the applicable law. It could not be regarded as erroneous that the domestic courts had found that an ordinary citizen (who would not make complicated calculations) would assume by mistake that the applicant was normally less expensive. The Unfair Competition Act protected not only other competitors, but also the general public, from unfair competition. It was not decisive that there had not been malpractice on the part of the applicant.

The applicant received the decision of the Federal Constitutional Court on 20 August 2003.

Relevant provisions of the Unfair Competition Act (Gesetz gegen den unlauteren Wettbewerb):

“Any person who, in the course of business activity and for purposes of competition, commits acts contrary to honest practices may be enjoined from performing these acts and held liable for damages.”

“Any person who, in the course of business activity and for purposes of competition, makes misleading statements concerning business matters, in particular concerning the nature, the origin, or the manner of manufacture, or the pricing of individual goods or commercial services or of the offer as a whole, concerning price lists, the manner or the source of acquisition of goods, concerning the possession of awards, concerning the occasion or purpose of sale, or concerning the size of the available stock, may be enjoined from making such statements.”

Relevant provision of the Federal Lawyers Act (Bundesrechtsanwalts-ordnung):

“A lawyer is only permitted to advertise his/her services in as far as the advertising in question provides factual information concerning the form and the nature of the professional services and as long as it is not aimed at soliciting specific instructions or a specific brief.”


Remainder inadmissible;No violation of Art. 6-1 or 5-1;No violation of Art. 7

Javier Borrego Borrego;Margarita Tsatsa-Nikolovska;Peer Lorenzen;Rait Maruste;Renate Jaeger;Snejana Botoucharova;Volodymyr Butkevych

The applicant was born in 1946. When he lodged his application, he was detained in Bochum, Germany.

In 1969 the applicant, a national of Bosnia and Herzegovina of Serb origin, entered Germany, where he legally resided until the beginning of 1992. He then returned to Kostajnica, which forms part of the city of Doboj in Bosnia, where he was born.

On 16 December 1995 the applicant was arrested when entering Germany and placed in pre-trial detention on the ground that he was strongly suspected of having committed acts of genocide.

On 28 February 1997 the applicant’s trial, on the charge of having committed genocide in the Doboj region between May and September 1992, started before the Düsseldorf Court of Appeal (Oberlandesgericht) acting as a court of first instance.

In the course of the proceedings the Court of Appeal heard evidence from six witnesses called by the prosecution, who had to be summoned abroad.

On 18 June 1997 the applicant requested the Court of Appeal to call and hear evidence from eight witnesses from Kostajnica for the purpose of proving the fact that he had been placed in pre-trial detention in Doboj between 14 May and 15 August 1992 and could not therefore have committed the crimes he was accused of. On 10 July 1997 the applicant sought leave to summon another seventeen witnesses from Kostajnica to prove his allegation.

On 18 August 1997 the Court of Appeal dismissed the applicant’s requests to summon these witnesses. Relying on Article 244 § 5, second sentence, of the Code of Criminal Procedure (see paragraph 39 below), it considered the testimony of these witnesses to be of little evidential value. Seven of these witnesses had made written statements which had already been read out in court. Only one of them had actually claimed to have visited the applicant in prison. Having regard to the evidence already taken, the court could exclude the possibility that the testimony of the witnesses named by the applicant, if heard in person, might influence the court’s assessment of the evidence. It pointed out that more than twenty witnesses who had already been heard in court, including two journalists who had not been victims of the crimes the applicant was accused of, had seen the applicant in different places outside prison during the time he claimed to have been detained. The documents submitted by the applicant in relation to the beginning and end of his detention in Doboj did not warrant a different conclusion, as they had obviously been signed by a person whom the applicant knew well.

On 8 September 1997 the applicant requested the court to call three witnesses from Doboj in order to prove that he had been detained between 14 May and 15 August 1992. He also requested an inspection of the scene of the crime (Augenscheinseinnahme) in Grabska or, alternatively, that a topographical map be drawn up in order to prove that the witnesses’ statements concerning his purported acts in Grabska were untrustworthy.

On 12 September 1997 the Court of Appeal rejected the applicant’s requests. As regards the refusal to summon the three witnesses named, the court, again relying on Article 244 § 5 of the Code of Criminal Procedure, found that the testimony of these witnesses would be of little evidential value. Having heard the evidence given by other witnesses, it was satisfied that the applicant had not been detained at the material time. It further considered an inspection of the scene of the crime or the drawing-up of a topographical map thereof to be unobtainable evidence (unerreichbare Beweismittel) within the meaning of Article 244 § 3 of the Code of Criminal Procedure (see paragraph 38 below), which it therefore did not have to accept.

In its judgment of 26 September 1997, the Düsseldorf Court of Appeal convicted the applicant on eleven counts of genocide (Article 220a nos. 1 and 3 of the Criminal Code – see paragraph 34 below) and for the murder of twenty-two people in one case, seven people in another case, and one person in a third case. In the remaining cases, he was convicted on several counts of dangerous assault and deprivation of liberty. It sentenced the applicant to life imprisonment and stated that his guilt was of a particular gravity (see paragraph 37 below).

The court found that the applicant had set up a paramilitary group, with whom he had participated in the ethnic cleansing ordered by the Bosnian Serb political leaders and the Serb military in the Doboj region. He had in particular participated in the arrest, detention, assault and ill-treatment of male Muslims of three villages in Bosnia at the beginning of May and June 1992. He had killed several inhabitants of these villages. He had in particular shot twenty-two inhabitants of the village of Grabska – women and disabled and elderly people – in June 1992. Subsequently, the applicant, together with the paramilitary group he had led, had chased some forty men from their home village and had ordered them to be ill-treated and six of them to be shot. A seventh injured person had died from being burnt with the corpses of the six people shot. In September 1992 the applicant had killed a prisoner, who was being ill-treated by soldiers in the Doboj prison, with a wooden truncheon in order to demonstrate a new method of ill-treatment and killing.

The court stated that it had jurisdiction over the case pursuant to Article 6 no. 1 of the Criminal Code (see paragraph 34 below). There was a legitimate link for criminal prosecution in Germany, as this was in accordance with Germany’s military and humanitarian missions in Bosnia and Herzegovina and the applicant had resided in Germany for more than twenty years and had been arrested there. Furthermore, agreeing with the findings of an expert in public international law, the court found that the German courts were not debarred under public international law from trying the case. In particular, neither Article VI of the 1948 Convention on the Prevention and Punishment of the Crime of Genocide (Genocide Convention), nor Article 9 of the 1993 Statute of the International Criminal Tribunal for the former Yugoslavia (ICTY Statute) (see paragraphs 48-49 below) excluded the jurisdiction of German courts over acts of genocide committed outside Germany by a foreigner against foreigners. The court considered that this view was confirmed by the fact that the International Criminal Tribunal for the former Yugoslavia (ICTY) had stated that it was not willing to take over the applicant’s prosecution.

Furthermore, the court found that the applicant had acted with intent to commit genocide within the meaning of Article 220a of the Criminal Code. Referring to the views expressed by several legal writers, it stated that the “destruction of a group” within the meaning of Article 220a of the Criminal Code meant destruction of the group as a social unit in its distinctiveness and particularity and its feeling of belonging together (“Zerstörung der Gruppe als sozialer Einheit in ihrer Besonderheit und Eigenart und ihrem Zusammengehörigkeitsgefühl”); a biological-physical destruction was not necessary. It concluded that the applicant had therefore acted with intent to destroy the group of Muslims in the north of Bosnia, or at least in the Doboj region.

On 30 April 1999 the Federal Court of Justice, following an appeal by the applicant on points of law and after a hearing, convicted the applicant on one count of genocide and thirty counts of murder. It sentenced him to life imprisonment and stated that his guilt was of a particular gravity.

Endorsing the reasons given by the Court of Appeal, it found that German criminal law was applicable to the case and that the German courts consequently had jurisdiction over it by virtue of Article 6 no. 1 of the Criminal Code. It found, in particular, that no rule of public international law prohibited the applicant’s conviction by the German criminal courts in accordance with the principle of universal jurisdiction (Universalitäts/Weltrechtsprinzip) enshrined in that Article. It conceded that the said principle had not been expressly laid down in Article VI of the Genocide Convention, despite earlier drafts of the Genocide Convention in which it had been proposed to do so. However, the said Article did not prohibit persons charged with genocide from being tried by national courts other than the tribunals of the State in the territory of which the act was committed. Any other interpretation would not be reconcilable with the erga omnes obligation undertaken by the Contracting States in Article I of the Genocide Convention to prevent and punish genocide (see paragraph 48 below). The aforesaid interpretation of the Genocide Convention was also confirmed by Article 9 § 1 of the ICTY Statute, which provided for concurrent jurisdiction of the ICTY and all other national courts.

Moreover, the Federal Court of Justice found that the German courts also had jurisdiction pursuant to Article 7 § 2 no. 2 of the Criminal Code (see paragraph 34 below).

The Federal Court of Justice did not expressly deal with the applicant’s complaint that the Court of Appeal, in its decision of 18 August 1997, had refused to summon abroad any of the defence witnesses he had named on the basis of Article 244 § 5 of the Code of Criminal Procedure. However, it referred in general to the submissions of the Federal Public Prosecutor (Generalbundesanwalt), who had argued that the applicant’s appeal was inadmissible in this respect, as he had failed to set out the relevant facts in sufficient detail. As regards the applicant’s complaint that the Court of Appeal, in its decision of 12 September 1997, had refused to summon three further defence witnesses abroad, the Federal Court of Justice considered his complaint to be inadmissible, as he had not sufficiently set out the relevant facts and had not provided sufficient reasons in his appeal. The court further referred to the Federal Public Prosecutor’s submissions regarding the applicant’s complaint that the Court of Appeal had refused to have a topographical map drawn up. According to the Federal Public Prosecutor, the applicant’s complaint was ill-founded in this respect, especially as the Court of Appeal already had a video of the relevant locality.

The Federal Court of Justice upheld the Court of Appeal’s finding that the applicant had intended to commit genocide within the meaning of Article 220a of the Criminal Code, but found that his actions as a whole had to be considered as only one count of genocide. It referred to the wording of Article 220a § 1 no. 4 (imposition of measures which are intended to prevent births within the group) and no. 5 (forcible transfer of children of the group into another group) in support of its view that genocide did not necessitate an intent to destroy a group physically, but that it was sufficient to intend its destruction as a social unit.

On 12 December 2000 the Federal Constitutional Court declined to consider the applicant’s constitutional complaint.

According to the Constitutional Court, the criminal courts had not violated any provision of the Basic Law by establishing their jurisdiction pursuant to Article 6 no. 1 of the Criminal Code taken in conjunction with Article VI of the Genocide Convention. The principle of universal jurisdiction afforded a reasonable link to deal with subject matter arising outside the territory of Germany, while observing the duty of non-intervention (Interventionsverbot) under public international law. The competent courts’ reasoning, namely, that Article 6 no. 1 of the Criminal Code taken in conjunction with Article VI of the Genocide Convention entitled them to examine the applicant’s case, was not arbitrary. It could properly be reasoned that the Genocide Convention, while not expressly regulating the principle of universal jurisdiction, provided that the Contracting Parties were not obliged to prosecute perpetrators of genocide, but had jurisdiction to do so. In fact, genocide was the classic subject matter to which the principle of universal jurisdiction applied. The criminal courts’ reasoning did not interfere with Bosnia and Herzegovina’s personal or territorial sovereignty, as that State had expressly refrained from requesting the applicant’s extradition.

Pointing out that in the case of an admissible constitutional complaint it was entitled to examine the act complained of under all constitutional angles, the Federal Constitutional Court further found that the applicant’s right to a fair trial as guaranteed by the Basic Law had not been violated. There was no doubt that Article 244 §§ 3 and 5 of the Code of Criminal Procedure were constitutional. The legislature was not obliged to set up specific rules of procedure for certain criminal offences. The right to a fair trial did not grant the applicant a right to have certain evidence taken, such as calling witnesses who had to be summoned abroad.

In respect of the interpretation of Article 220a of the Criminal Code, the Federal Constitutional Court found that there had been no violation of the principle that criminal law was not to be applied retroactively as guaranteed by Article 103 § 2 of the Basic Law. It stated that the way in which the Court of Appeal and the Federal Court of Justice had construed the notion of “intent to destroy” in the said Article was foreseeable. Moreover, the interpretation conformed to that of the prohibition of genocide in public international law – in the light of which Article 220a of the Criminal Code had to be construed – by the competent tribunals, several scholars and as reflected in the practice of the United Nations, as expressed, inter alia, in Resolution 47/121 of the General Assembly (see paragraph 41 below).

On 3 July 2002 the Düsseldorf Court of Appeal declared inadmissible a request by the applicant to reopen the proceedings. The fact that one of the witnesses who had been examined by the Court of Appeal, and who was the only person claiming to have been an eyewitness to the applicant murdering twenty-two people in Grabska, was suspected of perjury did not warrant a reopening. Even assuming that the said witness had invented the allegations against the applicant, the latter would still have to be sentenced to life imprisonment for genocide and on eight counts of murder.

On 20 December 2002 (decision served on 28 January 2003) the Federal Court of Justice decided that the applicant’s request to reopen the proceedings was admissible in so far as it concerned the murder of twenty-two people in Grabska. It pointed out, however, that, even assuming that the applicant’s conviction on twenty-two counts of murder was not upheld, his conviction for genocide and on eight counts of murder, and therefore his life sentence, including the finding that his guilt was of a particular gravity, would prevail.

In a constitutional complaint of 28 February 2003, the applicant claimed that the decisions of the Düsseldorf Court of Appeal and the Federal Court of Justice concerning the reopening of the proceedings violated his right to liberty as guaranteed by the Basic Law. He argued that they had erred in their finding that, in the proceedings to have the case reopened, the question whether the applicant’s guilt was of a particular gravity did not have to be assessed anew.

On 22 April 2003 the Federal Constitutional Court refused to admit the applicant’s constitutional complaint.

On 21 June 2004 the Düsseldorf Court of Appeal decided to reopen the proceedings in respect of the applicant’s conviction for shooting twenty-two people in Grabska. It found that the only person claiming to have been an eyewitness to these murders was guilty of perjury at least in respect of some other statements. Therefore, it could not rule out the possibility that the judges then adjudicating the case would have acquitted the applicant on that charge if they had known that some statements by this witness had been false.

In so far as the applicant’s request to reopen the proceedings was granted, the Court of Appeal discontinued the proceedings. It argued that the sentence to be expected by the applicant, if he was again found guilty of having murdered twenty-two people in Grabska, was not significantly greater than the sentence which had already been imposed upon him with binding effect for genocide. Consequently, the judgment of the Düsseldorf Court of Appeal of 26 September 1997 remained final regarding the applicant’s conviction for genocide and on eight counts of murder, including the court’s finding that his guilt was of a particular gravity.

The relevant provisions of the Criminal Code, in their versions in force at the material time, on the jurisdiction of German courts, the crime of genocide and the gravity of a defendant’s guilt provided as follows:

“German criminal law shall further apply, regardless of the law applicable at the place of their commission, to the following acts committed abroad:

genocide (Article 220a);

“1. ...

German criminal law shall apply to other offences committed abroad if the act is punishable at the place of its commission or if the place of its commission is not subject to enforcement of criminal law and if the perpetrator

(2) was a foreigner at the time of the act, was found to be in Germany and, although the law on extradition would permit extradition for such an act, is not extradited because a request for extradition is not made, is rejected or the extradition is not enforceable.”

“1. Whoever, acting with the intent to destroy, in whole or in part, a national, racial, religious or ethnical group as such,

(1) kills members of the group,

(2) causes serious bodily or mental harm ... to members of the group,

(3) places the group in living conditions capable of bringing about their physical destruction in whole or in part,

(4) imposes measures which are intended to prevent births within the group,

(5) forcibly transfers children of the group into another group,

shall be punished with life imprisonment.

Article 220a of the Criminal Code was inserted into the German Criminal Code by the Act of 9 August 1954 on Germany’s accession to the Genocide Convention and came into force in 1955. Article 6 no. 1 and Article 220a of the Criminal Code ceased to be effective on 30 June 2002 when the Code on Crimes against International Law (Völkerstrafgesetzbuch) came into force. Pursuant to Article 1 of the new Code, it applies to criminal offences against international law such as genocide (see Article 6 of the new Code) even when the offence was committed abroad and bears no relation to Germany.

The applicant is the first person to be convicted of genocide by German courts under Article 220a since the incorporation of that Article into the Criminal Code. At the time the applicant committed his acts in 1992, a majority of scholars took the view that genocidal “intent to destroy a group” under Article 220a of the Criminal Code had to be aimed at the physical-biological destruction of the protected group (see, for example, A. Eser in Schönke/Schröder, Strafgesetzbuch – Kommentar, 24th edition, Munich 1991, Article 220a, §§ 4-5 with further references). However, a considerable number of scholars were of the opinion that the notion of destruction of a group as such, in its literal meaning, was wider than a physical-biological extermination and also encompassed the destruction of a group as a social unit (see, in particular, H.-H. Jescheck, Die internationale Genocidium-Konvention vom 9. Dezember 1948 und die Lehre vom Völkerstrafrecht, ZStW 66 (1954), p. 213, and B. Jähnke in Leipziger Kommentar, Strafgesetzbuch, 10th edition, Berlin, New York 1989, Article 220a, §§ 4, 8 and 13).

Under Article 57a § 1 of the Criminal Code, a sentence to life imprisonment may only be suspended on probation if, in particular, fifteen years of the sentence have been served and the particular gravity of the defendant’s guilt (besondere Schwere der Schuld) does not warrant the continued execution of the sentence.

Pursuant to Article 244 § 3 of the Code of Criminal Procedure, an application to adduce evidence may be rejected only under the conditions set out in that Article. It may be dismissed, inter alia, if the evidence is unobtainable (unerreichbar).

Article 244 § 5, second sentence, of the Code of Criminal Procedure lays down special conditions for rejecting an application to examine a witness who would have to be summoned abroad. These conditions are less strict than those for rejecting an application to hear evidence from a witness who can be summoned in Germany. It is sufficient that the court, in the proper exercise of its discretion, deems the examination of the witness not to be necessary for establishing the truth.

The relevant provision of the Genocide Convention, which came into force for Germany on 22 February 1955, provides:

“In the present Convention, genocide means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such:

(a) Killing members of the group;

(b) Causing serious bodily or mental harm to members of the group;

(c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part;

(d) Imposing measures intended to prevent births within the group;

(e) Forcibly transferring children of the group to another group.”

In its Resolution 47/121 (no. A/RES/47/121) of 18 December 1992 concerning the situation in Bosnia and Herzegovina in 1992, the United Nations General Assembly stated:

“Gravely concerned about the deterioration of the situation in the Republic of Bosnia and Herzegovina owing to intensified aggressive acts by the Serbian and Montenegrin forces to acquire more territories by force, characterized by a consistent pattern of gross and systematic violations of human rights, a burgeoning refugee population resulting from mass expulsions of defenceless civilians from their homes and the existence in Serbian and Montenegrin controlled areas of concentration camps and detention centres, in pursuit of the abhorrent policy of “ethnic cleansing”, which is a form of genocide, ...”

In the case of Prosecutor v. Krstić, IT-98-33-T, judgment of 2 August 2001, §§ 577-80, the Trial Chamber of the International Criminal Tribunal for the former Yugoslavia (ICTY), expressly diverging from the wider interpretation of the notion of “intent to destroy” by the United Nations General Assembly and the Federal Constitutional Court in its judgment of 12 December 2000 in the present case, found as follows with regard to the Genocide Convention:

“577. Several recent declarations and decisions, however, have interpreted the intent to destroy ... so as to encompass evidence relating to acts that involved cultural and other non-physical forms of group destruction.

In 1992, the United Nations General Assembly labelled ethnic cleansing as a form of genocide. ...

The Federal Constitutional Court of Germany said in December 2000 that

the statutory definition of genocide defends a supra-individual object of legal protection, i.e. the social existence of the group ... the intent to destroy the group ... extends beyond physical and biological extermination ... The text of the law does not therefore compel the interpretation that the culprit’s intent must be to exterminate physically at least a substantial number of the members of the group. ...

The Trial Chamber is aware that it must interpret the Convention with due regard for the principle of nullum crimen sine lege. It therefore recognises that, despite recent developments, customary international law limits the definition of genocide to those acts seeking the physical or biological destruction of all or part of the group. Hence, an enterprise attacking only the cultural or sociological characteristics of a human group in order to annihilate these elements which give to that group its own identity distinct from the rest of the community would not fall under the definition of genocide. The Trial Chamber however points out that where there is physical or biological destruction there are often simultaneous attacks on the cultural and religious property and symbols of the targeted group as well, attacks which may legitimately be considered as evidence of an intent to physically destroy the group.”

The Trial Chamber’s judgment was upheld in this respect by the judgment of 19 April 2004 rendered by the Appeals Chamber of the ICTY, IT-98-33-A, which found:

“25. The Genocide Convention, and customary international law in general, prohibit only the physical or biological destruction of a human group. ... The Trial Chamber expressly acknowledged this limitation, and eschewed any broader definition. ...”

... The fact that the forcible transfer does not constitute in and of itself a genocidal act does not preclude a Trial Chamber from relying on it as evidence of the intentions of members of the VRS Main Staff. The genocidal intent may be inferred, among other facts, from evidence of ‘other culpable acts systematically directed against the same group’.”

Similarly, in the case of Prosecutor v. Kupreškić and Others (IT9516-T, judgment of 14 January 2000, § 751), which concerned the killing of some 116 Muslims in order to expel the Muslim population from a village, the ICTY found:

“Persecution is only one step away from genocide – the most abhorrent crime against humanity – for in genocide, the persecutory intent is pushed to its utmost limits through the pursuit of the physical annihilation of the group or of members of the group. In the crime of genocide the criminal intent is to destroy the group or its members; in the crime of persecution the criminal intent is instead to forcibly discriminate against a group or members thereof by grossly and systematically violating their fundamental human rights. In the present case, according to the Prosecution – and this is a point on which the Trial Chamber agrees – the killing of Muslim civilians was primarily aimed at expelling the group from the village, not at destroying the Muslim group as such. This is therefore a case of persecution, not of genocide.”

In its judgment of 26 February 2007 in the case of Bosnia and Herzegovina v. Serbia and Montenegro (“Case concerning application of the Convention on the Prevention and Punishment of the Crime of Genocide”), the International Court of Justice (ICJ) found under the heading of “intent and ‘ethnic cleansing’” (at § 190):

“The term ‘ethnic cleansing’ has frequently been employed to refer to the events in Bosnia and Herzegovina which are the subject of this case ... General Assembly resolution 47/121 referred in its Preamble to ‘the abhorrent policy of “ethnic cleansing”, which is a form of genocide’, as being carried on in Bosnia and Herzegovina. ... It [i.e., ethnic cleansing] can only be a form of genocide within the meaning of the Convention, if it corresponds to or falls within one of the categories of acts prohibited by Article II of the Convention. Neither the intent, as a matter of policy, to render an area ‘ethnically homogeneous’, nor the operations that may be carried out to implement such policy, can as such be designated as genocide: the intent that characterizes genocide is ‘to destroy, in whole or in part’ a particular group, and deportation or displacement of the members of a group, even if effected by force, is not necessarily equivalent to destruction of that group, nor is such destruction an automatic consequence of the displacement. This is not to say that acts described as ‘ethnic cleansing’ may never constitute genocide, if they are such as to be characterized as, for example, ‘deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part’, contrary to Article II, paragraph (c), of the Convention, provided such action is carried out with the necessary specific intent (dolus specialis), that is to say with a view to the destruction of the group, as distinct from its removal from the region. As the ICTY has observed, while ‘there are obvious similarities between a genocidal policy and the policy commonly known as “ethnic cleansing”‘ (Krstić, IT-98-33-T, Trial Chamber Judgment, 2 August 2001, para. 562), yet ‘[a] clear distinction must be drawn between physical destruction and mere dissolution of a group. The expulsion of a group or part of a group does not in itself suffice for genocide.’ ...”

According to the material available to the Court, there have been only very few cases of national prosecution of genocide in other Convention States. There are no reported cases in which the courts of these States have defined the type of group destruction the perpetrator must have intended in order to be found guilty of genocide, that is, whether the notion of “intent to destroy” covers only physical or biological destruction or whether it also comprises destruction of a group as a social unit.

Amongst scholars, the majority have taken the view that ethnic cleansing, in the way in which it was carried out by the Serb forces in Bosnia and Herzegovina in order to expel Muslims and Croats from their homes, did not constitute genocide (see, amongst many others, William A. Schabas, Genocide in International Law: The Crime of Crimes, Cambridge 2000, pp. 199 et seq.). However, there are also a considerable number of scholars who have suggested that these acts did amount to genocide (see, inter alia, M. Lippman, Genocide: The Crime of the Century, HOUJIL 23 (2001), p. 526, and J. Hübner, Das Verbrechen des Völkermordes im internationalen und nationalen Recht, Frankfurt am Main 2004, pp. 208-17; G. Werle, differentiating in Völkerstrafrecht, 1st edition, Tübingen 2003, pp. 205, 218 et seq.).

The relevant provisions of the Genocide Convention read:

“The Contracting Parties confirm that genocide, whether committed in time of peace or in time of war, is a crime under international law which they undertake to prevent and to punish.”

“Persons charged with genocide or any of the other acts enumerated in Article III shall be tried by a competent tribunal of the State in the territory of which the act was committed, or by such international penal tribunal as may have jurisdiction with respect to those Contracting Parties which shall have accepted its jurisdiction.”

The relevant provision of the ICTY Statute provides:

“1. The International Tribunal and national courts shall have concurrent jurisdiction to prosecute persons for serious violations of international humanitarian law committed in the territory of the former Yugoslavia since 1 January 1991.

The International Tribunal shall have primacy over national courts. At any stage of the procedure, the International Tribunal may formally request national courts to defer to the competence of the International Tribunal in accordance with the present Statute and the Rules of Procedure and Evidence of the International Tribunal.”

The Appeals Chamber of the ICTY, in its decision of 2 October 1995 on the defence motion for interlocutory appeal on jurisdiction in the case of Prosecutor v. Tadić (no. IT-94-1), stated that “universal jurisdiction [is] nowadays acknowledged in the case of international crimes” (§ 62).

Likewise, the Trial Chamber of the ICTY, in its judgment of 10 December 1998 in Prosecutor v. Furundžija (no. IT9517/1T), found that [it] has been held that international crimes being universally condemned wherever they occur, every State has the right to prosecute and punish the authors of such crimes. As stated in general terms by the Supreme Court of Israel in Eichmann, and echoed by a USA court in Demjanjuk, “it is the universal character of the crimes in question ... which vests in every State the authority to try and punish those who participated in their commission” (§ 156).

According to the information and material before the Court, including material submitted by the Government which has not been contested by the applicant, the statutory provisions of numerous other Convention States authorise the prosecution of genocide in circumstances comparable to those in issue in the present case.

In many Contracting States of the Convention, the prosecution of genocide is subject to the principle of universal jurisdiction, that is, jurisdiction for crimes committed outside the State’s territory by non-nationals against non-nationals of that State and which are not directed against the State’s own national interests, at least if the defendant was found to be present on its territory (for example Spain, France, Belgium (at least until 2003), Finland, Italy, Latvia, Luxembourg, the Netherlands (since 2003), Russia, Slovakia, the Czech Republic and Hungary). At the time of the applicant’s trial, numerous other States had authorised the prosecution of genocide committed abroad by foreign nationals against foreigners in accordance with provisions similar to the representation principle (stellvertretende Strafrechtspflege – compare Article 7 § 2 no. 2 of the German Criminal Code, paragraph 34 above), for example Austria, Denmark, Estonia, Poland, Portugal, Romania, Sweden and Switzerland (since 2000). Convention States which do not provide for universal jurisdiction for genocide include, notably, the United Kingdom.

Apart from the Austrian, Belgian and French courts, it is in particular the Spanish courts that have already adjudicated on charges of genocide, relying on the principle of universal jurisdiction. The Spanish Audiencia Nacional, in its judgment of 5 November 1998 in the Augusto Pinochet case, held that the Spanish courts had jurisdiction over the case. On the subject of the scope of the Genocide Convention it stated:

“Article 6 of the Convention does not preclude the existence of judicial bodies with jurisdiction apart from those in the territory where the crime was committed or international tribunals. ... it would be contrary to the spirit of the Convention ..., in order to avoid the commission with impunity of such a serious crime, to consider that this Article of the Convention limits the exercise of jurisdiction, excluding any jurisdiction other than those envisaged by the provision in question. The fact that the Contracting Parties have not agreed on universal jurisdiction over the crime for their respective national jurisdictions does not preclude the establishment, by a State which is a party to the Convention, of such jurisdiction over a crime which involves the whole world and affects the international community and indeed all of humanity directly, as stated in the Convention itself. ... Neither do the terms of Article 6 of the Convention of 1948 constitute an authorisation to exclude jurisdiction for the punishment of genocide in a State Party such as Spain, whose law establishes extraterritoriality with regard to prosecution for such crimes ...” (International Law Reports, vol. 119, pp. 331 et seq., at pp. 335-36)


Violation of Art. 5-1;Non-pecuniary damage - financial award;Costs and expenses award - domestic proceedings;Costs and expenses (Convention proceedings) - claim dismissed

On 11 August 1995 on a public bus in the city of Århus the applicant, born in 1928, had a dispute with a ticket inspector, who accused her of having travelled without a valid ticket. When he was about to issue a penalty fare she refused to disclose her identity and the police were consequently called. They requested that the applicant give her name and address, and since she refused, she was arrested at 9.30 p.m. in accordance with section 755, subsection 1, cf. section 750 of the Administration of Justice Act (Retsplejeloven) and brought to the police station.

From the police reports it appears that the police estimated that the applicant was approximately sixty years old. Having been deprived of her personal belongings, she was put in a waiting room at 9.45 p.m. and after a visit to the toilet at 11.00 p.m. she was moved to a detention cell. On 12 August 1995 at 10.45 a.m. the applicant revealed her identity and she was released at 11.00 a.m.

Immediately after her release, the applicant collapsed and was hospitalised for three days diagnosed with high blood pressure.

The charge with the offence of refusing to reveal her identity was not followed up by an indictment. The outcome of the applicant's dispute with the bus company is unknown.

On 16 August 1995 the applicant complained about the detention to the Chief Constable of Århus (Politimesteren i Århus). In a letter of 14 September 1995 the Chief Constable provided his comments on the course of event, stating inter alia that the applicant had not been in possession of any papers which could have revealed her identity, that she appeared hysterical and refused to reveal her identity and that in the light thereof for security reasons she was placed in a detention cell. Furthermore, the Chief Constable noted that during the detention the applicant was regularly attended to and called upon through the intercommunication system but that each approach was met with screaming and continuing refusal to reveal her identity,

On 14 June 1996 the applicant claimed compensation for having been detained. The Chief Constable decided on the matter on 18 July 1996, and in so far as relevant his letter of the same day to the applicant reads as follows:

“In connection with your previous complaint ... you received a ... letter of 14 September 1995 from Chief Superintendent HJH. [My] reply to your complaint... will not differ essentially from the content of [that letter].

However, in view of your relatively advanced age I find reason to regret that you were not, as promised, attended to by a doctor in connection with your stay in the detention cell.

In general, I find the fact that you were taken to the police station, that you were placed in the detention cell, and that the length of your stay in the detention cell from 11.00 p.m. until your release the following day at 11.00 a.m., totalling 12 hours can be ascribed substantially to your conduct and unwillingness to assist in replying to the question on which the police needed clarification.

This decision can be appealed against to the Ministry of Justice...

The claim for compensation made by you as regards the deprivation of liberty will be decided by the Regional State Prosecutor, who has received a copy of this letter”.

The applicant did not appeal to the Ministry of Justice against the Chief Constable's decision, but on 31 July 1996 she complained against the decision to the Regional State Prosecutor in Viborg (Statsadvokaten i Viborg), who refused to grant her compensation on 6 February 1997.

In accordance with section 1018 e of the Administration of Justice Act on 5 and 12 March 1997 the applicant appealed to the Prosecutor General, who upheld the decision on 25 November 1997.

Thereafter, pursuant to section 1018 a of the Administration of Justice Act the applicant brought her claim for compensation before the City Court of Århus (Retten i Århus). The prosecution maintained that the applicant's behaviour necessitated the arrest and the length of the detention. A court session was held on 26 June 1998, in which the applicant, represented by counsel, explained inter alia that she had refused to give her name to the ticket inspector partly because she was angry, partly because he already knew her. She alleged that the police did not question her or talk to her during the arrest, during the transportation to the police station, or after the arrival to the station. She had handed over various belongings among those, she believed, various letters from public authorities bearing her name. Four police officers were heard as witnesses on 17 September 1998. The two police officers who made the arrest explained inter alia that the applicant twice had refused to give her name and address on their request, once after they had warned her that she would be arrested did she not state the data required. It had been difficult to get in touch with the applicant, who screamed and appeared hysterical. At the police station she was brought before the officer on duty and again she refused to reveal her identity. She had not been in possession of any identification. The officer who had been on duty on 11 August 1995 explained among other things that after repeated attempts to obtain the applicant's name and date of birth, he gave up and the applicant was thereafter placed in a waiting room, whereto he went at least once without success to ask her to disclose her personal data before he was off duty at 11 p.m. The officer who had been on duty on 12 August 1995 as from 6.30 a.m. stated inter alia that several times during the morning he send a colleague down to try to get the requested data from the applicant, but they only succeeded around 10.45 a.m., whereupon she was released. A note of 9 July 1996 from the Chief of Police in Århus was submitted, of which it appeared that the applicant's case had been thoroughly talked over with the group of duty officers. It had been discussed in particular that the applicant had not been attended to by a doctor in connection with her placement in the detention cell, that she had been detained for many hours, and that no documentation existed to substantiate which steps had been taken during the evening, the night and the early morning hours in order to gain knowledge of the applicant's identity. The duty officers were ordered, in the future, to appoint at the commencement of every duty period one among them to be responsible for the detainees.

By judgment of 25 September 1998 the City Court decided as follows:

“As the [applicant] did not disclose her name and address to the two [named] police officers, she infringed section 750 of the Administration of Justice Act, which authorises the imposition of a fine. Thus, pursuant to section 755, subsection 1 of the Administration of Justice Act the [applicant] could be arrested.

Also, when brought to the police station immediately after the arrest [the applicant] refused to reveal her name and address and consequently, she was put in a waiting room. It is unknown, which efforts were taken to identify [the applicant] in the period between 11.00 p.m. and 06.30 a.m. during which, the sixty-seven year old [applicant] was placed in the detention cell at least for some time, and during which according to the information available she was denied medical treatment. Having regard to the fact that [the applicant] was detained for breaching section 750 of the Administration of Justice Act, the police officers on duty were under an obligation continuously to make attempts to establish her identity, and to secure that the detention did not exceed a period proportionate to the cause of the detention cf. the principles set out in section 760, subsection 1 and section 755, subsection 4 of the Administration of Justice Act. Under these circumstances, the court finds that there was no reason to extend the detention until the following day 11.00 a.m. Accordingly, [the applicant] is entitled to compensation in the amount of DKK 2,200 pursuant to section 1018 a, subsection 1 of the Administration of Justice Act.”

The prosecution appealed against the judgment to the High Court of Western Denmark (Vestre Landsret), before which the applicant amended slightly her statement given before the City Court in that she admitted that the police had asked her before and after the arrest to provide them with her personal data, but that she had refused because she had been angry. Two of the police officers who were heard as witnesses before the City Court repeated their testimonies.

On 11 February 1999 the High Court gave judgment against the applicant stating as follows:

“Having breached section 750 of the Administration of Justice Act [the applicant] could be arrested pursuant to section 755, subsection 1 of the Administration of Justice Act.

During the arrest, and the subsequent detention [the applicant] was requested continuously to reveal her name and address, which she refused. Furthermore, she did not possess any identity papers, which could have enabled the police to determine her name and address. Finally, [the applicant] was released as soon as she revealed her name and address.

Under these circumstances, there is no basis for granting [the applicant] compensation pursuant to section 1018 a, subsection 1 of the administration of Justice Act.

Moreover, as no circumstances has been established, which could provide a basis for granting compensation pursuant to section 1018 a, subsection 2, [the court finds for the prosecution.]”

The applicant's request of 24 February 1999 for leave to appeal to the Supreme Court (Højesteret) was refused by the Leave to Appeal Board (Procesbevillingsnævnet) on 25 May 1999.

The relevant provisions of the Administration of Justice Act reads as follows:

Section 101, subsection 2:

“The Regional State Prosecutors shall supervise the Chief Constables' conduct as to criminal trials, and hear appeals against decisions made by the Chief Constables as to instigation of criminal proceedings. Decisions by the Regional State Prosecutors cannot be appealed against to the Prosecutor General or to the Ministry of Justice... “

Section 109, subsection 1:

“The Minister of Justice is the chief superior of the police and exercises his powers through the National Commissioner of Police, the Commissioner of the Copenhagen Police and the Chief Constables”

Section 750:

“... Every person has a duty to disclose his name, address and date of birth to the police upon request. Failure to do so is punishable with a fine.”

Section 755:

“The police may arrest any person who is reasonably suspected of a criminal offence subject to public prosecution, if arrest must be deemed necessary to prevent further criminal offences, to secure the person's presence for the time being or to prevent his association with others. ...

“No arrest may be made if, in the nature of the case or the circumstances in general, deprivation of liberty would be a disproportionate measure.”

Section 758

“An arrest must be carried out as leniently as the circumstances permit. In compliance with section 792 e, the police may search and examine the person affected and his clothes with a view to depriving him of belongings which can be used for violent behaviour or for his absconding, or which may cause danger to the person affected or to others. The police may temporarily seize such belongings and money that are found in the person's possession. Otherwise, during an arrest the person affected is not subject to any limitations of his personal liberty other than those necessitated for the purpose of the arrest and for the prevention of disorder.

The police shall as soon as possible inform the person being arrested of the charge against him and the time of his arrest. It must appear from the police report that this rule have been observed”

Section 760, subsection 1:

“Any person who is arrested must be released as soon as the basis for the arrest ceases to exists.”

Section 1018 a:

“1. Any person who has been arrested or held in custody as part of a criminal prosecution is entitled to compensation for the damage suffered thereby if the charges are withdrawn or the accused is acquitted ...

Even if the conditions for granting compensation under subsection 1 are not satisfied, compensation may be granted if the deprivation of liberty cannot be considered proportionate to the outcome of the prosecution, or if it is found unreasonable for other particular grounds.

The compensation may be reduced or refused, if the person charged has given rise to the measures himself.”


Preliminary objection withdrawn (non-exhaustion of domestic remedies);Violation of Art. 6-1;Just satisfaction not applied

C. Russo;John Freeland;N. Valticos;R. Pekkanen

Mr Francesco Lombardo resides in Rome. The facts established by the Commission pursuant to Article 31 para. 1 (art. 32-1) of the Convention are as follows (see paragraphs 15-30 of its report):

The applicant served in the Carabinieri from 15 August 1946 to 14 March 1974, on which date he was invalided out of the service because he had become disabled as a result of two illnesses - an ulcer and neoplasia.

Since 29 January 1975 the applicant has been in receipt of an ordinary retirement pension.

On 10 June 1974 he applied for an ‘enhanced ordinary pension’ on the ground that the illnesses which had caused his disablement were ‘due to his service’. On 19 October 1976 the applicant was examined at the Messina military hospital by the Ministry of Defence medico-legal board. On 26 November 1976 the board concluded that the neoplasia which had caused the applicant’s disablement was not ‘due to his service’.

On 21 May 1977, in its decision on the applicant’s request, the Ministry of Defence granted him payment at the enhanced rate for two years, on the ground that the ulcer he suffered from was ‘due to his service’, but rejected that part of his application concerning the neoplasia.

In a registered letter dated 20 December 1977 the applicant appealed to the Court of Audit against this decision. The appeal was received by the Court of Audit on 22 December 1977 and reached the competent division of that court on 3 January 1978, being registered under file no. 0110931.

On 7 September 1978 the applicant asked for his appeal to be given priority, by derogation from the chronological order principle usually applied. Following this request, on 13 September 1978, the registry of the Court of Audit asked the Ministry of Defence for the applicant’s administrative file; on 23 September 1978 it again asked for this file to be forwarded.

In a note of 20 October 1978 the Ministry of Defence announced that it was shortly to adopt an administrative measure concerning the applicant [- an adjustment of his pension -] and that the file would be transmitted thereafter.

The file was received by the registry of the Court of Audit on 4 December 1980. On 13 January 1981 the applicant’s appeal and his file were transmitted to the principal public prosecutor, who [granting Mr Lombardo’s application of 23 February 1982] on 8 January 1983 decided to give the case priority.

On 17 September 1985 the principal public prosecutor requested the opinion of the Ministry of Defence medico-legal board. He received this opinion on 7 April 1986. It confirmed that the applicant’s neoplasia was not ‘due to his service’.

On the basis of this opinion, on 6 June 1987, the principal public prosecutor submitted his pleadings, calling for the appeal to be dismissed.

On 28 October 1987 the applicant again asked for his case to be given priority.

On 30 November 1987 the president of the division of the Court of Audit dealing with the case arranged for a hearing to be held before that division on 27 April 1988. However, the hearing did not take place because, following a judgment of the Constitutional Court (no. 270 of 25 February 1988), the Judicial Division of the Palermo Court of Audit gained jurisdiction to hear the case, which was transferred to it on 25 May 1988.

This division heard the case at a hearing held on 15 February 1989, at the end of which it upheld the applicant’s appeal. The text of the judgment was deposited with the registry on 7 July 1989. ...

B. The relevant domestic law

In pursuance of the provisions of Presidential Decree no. 1092 of 29 December 1973, state public servants are entitled to an ‘enhanced ordinary pension’ when their employment in the public service is terminated as a result of a disability or injury attributable to the requirements of the service.

Public servants make direct contributions to the pension fund through monthly payments calculated as a fixed percentage of their wages and deducted therefrom.

The nature of the disability or injury is taken into account for the purpose of deciding which scale is to be applied in calculating the amount of pension. For professional members of the armed forces these scales range from 30% to 100% of the figure used as the basis for the calculation of pension, i.e. the full amount of the latest remuneration received, plus certain allowances where appropriate. Consequently, the amount of the pension granted is not directly linked to the total contributions paid into the pension fund by the person concerned."

On 26 November 1991 the applicant informed the Court that Italy had now paid him part of the amount in issue.