Violation of Article 6+6-3-d - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing;Adversarial trial) (Article 6 - Right to a fair trial;Article 6-3-d - Examination of witnesses);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)

André Potocki;Angelika Nußberger;Dean Spielmann;Ganna Yudkivska;Karel Jungwiert;Mark Villiger

The applicant was born in 1978 and lives in Bayreuth. At the time of the events in issue in September 2003 he was living in Bingen, Rhineland-Palatinate, where he was studying mechanical engineering.

On 26 November 2003 the applicant’s mother, his brother and his sister (“the witnesses”) informed the police about an incident that had occurred during the night of 2-3 September 2003 at the applicant’s parents’ house in Wilhemsthal, Bavaria. The witnesses testified that the applicant, who cannot remember the incident, had strangled his sister and had attacked his brother with an axe before being overpowered by his parents. The applicant’s father did not press criminal charges and did not testify against the applicant.

The Coburg Public Prosecutor opened a criminal investigation against the applicant for attempted murder. On 8 December 2003 the witnesses repeated their statements before the investigating judge (Ermittlungsrichter) of the Kronach District Court in the presence of a police officer. The applicant was not informed of the hearing before the investigating judge. No counsel was appointed for him.

On 16 December 2003 the Kronach District Court issued a warrant for the applicant’s arrest. The applicant was arrested on 19 December 2003 and remanded in custody. By a decision of the Coburg Regional Court of 6 October 2004 the applicant was transferred to a psychiatric hospital pending trial.

On 28 February 2005 the Coburg Regional Court ordered that the applicant be placed in a psychiatric hospital pursuant to section 63 of the Criminal Code (see “Relevant domestic law and practice” below).

The Regional Court found it established that on the evening of 2 September 2003 the applicant travelled from Bingen to his parents’ house in Wilhelmsthal. He entered the house with his own key without notifying his parents or his brother and sister of his arrival. During the night he went to his sister’s bedroom, strangled her and then attacked his brother with an axe causing him injuries on his head, hands, arms and legs. Once the applicant had been overpowered by his parents, the entire family gathered in the kitchen. The sister then drove the applicant’s heavily bleeding brother to hospital where two of his wounds were sutured. The applicant stayed with his family in his parent’s house until end of September 2003. During his stay he was provided with medical care by a local doctor who diagnosed him with having suffered an epileptic seizure. The applicant then returned to Bingen but made another unannounced visit to his parent’s house on 21 November 2003. Following this visit the applicant’s mother, brother and sister who feared a further attack by the applicant decided to inform the police about the incident in the night of 2-3 September 2003 and pressed criminal charges against the applicant on 26 November 2003 (see above § 7).

The Regional Court qualified the acts as two counts of assault occasioning grievous bodily harm (gefährliche Körperverletzung). It further held on the basis of expert opinions that the applicant had acted either in a state of diminished awareness of his actions due to epilepsy (epileptischer Dämmerzustand) or during a bout of paranoid schizophrenia and could therefore not be held responsible for the acts, pursuant to section 20 of the Criminal Code (see “Relevant domestic law and practice” below).

As regards the finding of facts, the Regional Court noted that the applicant did not have any recollection of the events in the night of 23 September 2003 and that the only available direct witnesses, namely the applicant’s mother, brother and sister, had availed themselves of their right not to testify against the applicant in court pursuant to section 52 of the Code of Criminal Procedure (see “Relevant domestic law and practice” below). The applicant’s father had refrained from pressing criminal charges and had not participated in the proceedings (see above § 7). The facts could nevertheless be established on the basis of the testimony of the investigating judge, who had heard the witnesses on 8 December 2003 and had given an account of their pre-trial statements in court. The Regional Court held that it was not prevented from hearing the investigating judge as a witness and taking his testimony about the witnesses’ pre-trial statements into account.

The Regional Court noted that the Public Prosecutor had failed to request the appointment of counsel for the applicant prior to the hearing of the witnesses by the investigating judge in accordance with section 140 (1) no. 2 read in conjunction with section 141 (3) of the Code of Criminal Procedure as construed by the Federal Court of Justice in the light of the requirements of Article 6 § 3 (d) of the Convention. Furthermore, the unrepresented applicant had not been informed about the hearing before the investigating judge pursuant to section 168(c) (3) and (5) of the Code of Criminal Procedure and there would have been no grounds to exclude a potential counsel from the hearing (see “Relevant domestic law and practice” below).

The Regional Court reiterated that under the Federal Court of Justice’s case-law the failure to appoint counsel did not compel the exclusion of the investigating judge’s testimony. However, the Regional Court was bound to proceed to a particularly critical assessment of the investigating judge’s testimony in view of the fact that neither the accused nor counsel had been able to directly examine the witnesses. The finding of facts could only be based on the investigating judge’s testimony if the latter was corroborated by other significant considerations.

The Regional Court took several items of evidence as corroborating the investigating judge’s testimony into account. Firstly, it emphasised that for its establishment of facts it not only disposed of the testimony by the investigating judge but also of three consistent witness statements that gave a coherent account of the events in issue. According to the testimony given by the investigating judge, there was nothing to establish that the witnesses had not told the truth or wanted to incriminate the applicant; the witnesses had testified because they had been concerned about the applicant’s health and had feared another attack by him. Furthermore, the police superintendent who had registered the witnesses’ criminal charge on 26 November 2011 had testified that on this occasion he had been spontaneously told by the witnesses - prior to their subsequent questioning - that the applicant had attacked members of his family with an axe. The Regional Court pointed out that as opposed to the witnesses’ subsequent testimonies to the police, these spontaneous statements did not have to be excluded from the trial pursuant to section 252 of the Code of Criminal Procedure but constituted admissible evidence. In addition, another policeman had testified that the applicant’s mother had called him spontaneously on 3 December 2003 and had asked what further action would be taken as a result of the criminal complaint with a view to preventing a renewed unannounced visit and attack by the applicant. In the Regional Court’s view these spontaneous statements supported the witnesses’ description of the events in the night of 2-3 September 2003.

Moreover, the doctor who had treated the applicant’s brother’s cuts in hospital on 3 September 2003 had testified that he had been suspicious of the latter’s explanation for his injuries at that time, namely that he had fallen through a glass pane. The Regional Court further noted that the applicant’s brother had later handed over an axe to the police on his own initiative, and that the police officer who had received the implement had testified that the brother had confirmed that the axe was the corpus delicti. Finally, the applicant himself had testified that he could remember seeing his brother covered in blood on the morning of 3 September 2003 when the family had gathered in the kitchen and that his family members had told him that he had attacked his brother and sister during the night. According to the applicant, he himself had proposed that same morning to contact the police but his family had refused to do so. He further remembered that his sister had taken his brother to hospital.

The applicant lodged an appeal on points of law in which he complained that the investigating judge’s testimony ought to have been excluded from the trial.

The Coburg Public Prosecutor lodged an appeal on points of law in which he argued that the attack on the witnesses should have been classified as two counts of attempted manslaughter as well as assault occasioning grievous bodily harm.

On 25 May 2005 the Federal Public Prosecutor moved that the applicant’s appeal on points of law be dismissed on the grounds that the Regional Court had, in line with the reasoning in the related Federal Court of Justice’s leading judgment, established that the investigating judge’s testimony had been corroborated by other important considerations and that the Regional Court’s holding was free of error.

On 24 August 2005 the Federal Court of Justice dismissed the applicant’s appeal on points of law as ill-founded. On 31 August 2005 the Federal Court of Justice ordered the State to pay the costs of the Public Prosecutor’s Appeal on points of law which had been withdrawn. These decisions were served on the applicant on 9 and 16 September 2005 respectively.

On 1 April 2006 the applicant lodged his first application with this Court (no. 14678/06) which was declared inadmissible for non-exhaustion of domestic remedies by a Committee of three judges on 5 September 2006.

On 16 October 2006 the applicant applied for the reinstatement of the proceedings in regard to his compliance with the one-month period to lodge a constitutional complaint and submitted his constitutional complaint to the Federal Constitutional Court.

On 20 March 2007 the Federal Constitutional Court refused to admit the applicant’s constitutional complaint for examination and noted that there was no need to decide the applicant’s application for the reinstatement of the proceedings (no. 2 BvR 225/07).

The Regional Court may order an accused to be placed in a psychiatric hospital if he has committed an unlawful act in a state that excludes a finding of guilt, and if his act reveals that as a result of his condition, future serious unlawful acts can be expected of him and that he therefore presents a danger to the general public (section 63 of the Criminal Code). An accused acts without guilt if he is incapable of appreciating the wrongfulness of his act or of acting in accordance with such appreciation due to a pathological emotional disorder, profound consciousness disorder, mental defect or any other serious emotional abnormality (section 20 of the Criminal Code).

Pursuant to section 168(c) (2) of the Code of Criminal Procedure, the prosecutor, the accused and defence counsel shall be permitted to be present during the judicial examination of a witness or expert prior to the opening of the main proceedings. The judge may exclude an accused from being present at the hearing if his presence would endanger the purpose of the investigation, in particular if it is to be feared that a witness will not tell the truth in the presence of the accused (section 168(c) (3) of the Code of Criminal Procedure). The persons entitled to be present shall be given prior notice of the dates set down for the hearings. The notification shall be dispensed with if it would endanger the success of the investigation (section 168(c) (5) of the Code of Criminal Procedure).

Defence counsel may be appointed during preliminary proceedings; the public prosecution office shall request such an appointment if in its opinion the assistance of defence counsel in the main proceedings will be mandatory (section 141 (3) of the Code of Criminal Procedure). The assistance of defence counsel is mandatory if, inter alia, the main hearing is held at first instance before the Regional Court, the accused is charged with a serious criminal offence, or the proceedings are conducted with a view to placement in a psychiatric hospital (section 140 (1) nos. 1, 2 and 7 of the Code of Criminal Procedure). Counsel is to be appointed when an indicted accused without defence counsel has been requested to reply to the bill of indictment (section 141 (1) of the Code of Criminal Procedure).

In a leading judgment of 25 July 2000 (published in the official reports, BGHSt, volume 46, p. 96 et seq.) the Federal Court of Justice held that section 141 (3) of the Code of Criminal Procedure required, in view of Article 6 § 3 (d) of the Convention, the appointment of counsel for an unrepresented accused if the key witness for the prosecution was to testify before an investigating judge and the accused was excluded from this hearing. The failure to appoint counsel prior to the hearing before the investigating judge did not exclude the latter’s testimony about the witnesses’ statements as long as the proceedings, seen as a whole, remained fair. To this end the investigating judge’s testimony had to be carefully assessed. A conviction could only be based on the investigating judge’s testimony if this testimony was corroborated by other important considerations.

Parents, brothers and sisters need not testify against their accused son or daughter, brother or sister (section 52 (1) no. 3 of the Code of Criminal Procedure); if such a witness makes use of his or her right not to testify at the main hearing, prior witness statements shall not be read out (section 252 of the Code of Criminal Procedure). According to the Federal Court of Justice’s case-law, section 252 of the Code of Criminal Procedure is an exclusionary rule that applies to all statements made prior to a main hearing by witnesses who avail themselves of their right not to testify at the main hearing, with the exceptions of spontaneous statements made by the witness before or outside his or her formal testimony as well as testimonies before a judge after the witness has been advised of his or her right not to testify.


Corneliu Bîrsan;Egbert Myjer;Ineta Ziemele;Ján Šikuta;Josep Casadevall;Kristina Pardalos;Nona Tsotsoria

The applicant, Mr Peter Kobida, is a Slovak national who was born in 1948 and lives in Prešov. The Government of the Slovak Republic (“the Government”) were represented by their Agent, Ms M. Pirošíková.

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

The applicant is handicapped and wheelchair-bound. Since 1982 he has been living, at his request and for payment, in an establishment providing social services (Dom sociálnych služieb – “the care home”).

Between 1994 and 1999, following an agreement with the director of the care home, the applicant himself paid for a person to prepare vegetarian food for him instead of buying the lunches which the home provided to residents and which did not include vegetarian meals.

In 1999 a new director was appointed who informed the applicant that the care home was obliged to provide at least two meals a day to him.

In 1999 the applicant concluded several consecutive agreements with the home in which he undertook to buy meals. As he had not paid the sums due for the period from July 1999 to March 2000, the home sued the applicant. The Prešov District Court granted the action on 18 June 2004, and the Prešov Regional Court upheld that decision on 18 January 2006.

In the meantime, on 19 January 2000 the applicant signed an agreement in which he undertook to buy two meals a day in the care home, namely lunch and an afternoon snack. On 21 January 2000, on the basis of that agreement the care home determined the sum which the applicant had to pay for his board. The Prešov Regional Office upheld that decision.

According to the applicant, the director had verbally promised to ensure that vegetarian food was made available to him with reference to section 3(3) of Regulation no. 198/1998. Since vegetarian meals were not made available, the applicant informed the director on 1 February 2000 that he no longer wished to receive lunches in the establishment.

An addendum to the internal rules of the care home of 3 July 2000 specified that a resident could refuse to receive food for serious reasons only and subject to the approval of the director. Another addendum to the internal rules of 4 August 2000 indicated the following as relevant grounds for not receiving food for a period exceeding 42 days: absence from the home, placement in a hospital, the death or illness of a member of the resident’s family, attending cultural or sports events, or any other serious ground accepted by the director.

On 22 September 2000 the care home sued the applicant as he had not paid the sum due for meals in the period from April 2000 to July 2000. On 28 April 2006 the Prešov District Court granted the claim.

In the meantime, on 3 August 2000 a physician issued a certificate confirming that the applicant suffered from chronic dyspepsia requiring protective foods.

In decisions of 7 August 2000 and 13 December 2000 the care home re-determined the sums due from the applicant for the services it provided, including meals. On 3 October 2000 and 1 February 2001 the Prešov Regional Office dismissed the applicant’s appeals against those decisions, which thus became final. In the decision of 1 February 2001 the Regional Office held that buying meals from other sources under section 3(3) of Regulation no. 198/1998 was only possible where such sources were duly authorised to offer catering services. However, that condition was not met in the applicant’s case.

On 21 August 2001 the social services department of the Prešov Regional Office informed the applicant that vegetarian food would be made available in his care home from 1 October 2001.

On 31 October 2001 the care home and the applicant concluded a new agreement under which the latter undertook to buy breakfast and lunch in the establishment. As the applicant failed to pay the sum due, the care home sued him before the Prešov District Court on 19 February 2002. On 6 September 2006 that court approved a settlement under which the applicant undertook to pay the sum in issue in monthly instalments.

In 2006 three sets of execution proceedings were brought with a view to enforcing the sums which the courts had ordered the applicant to pay to the care home.

On 29 May 2001 the establishment sued the applicant for unpaid meals for the period from August 2000 to March 2001.

The applicant argued that he had revoked the agreement on buying food as the lunches served in the care home did not correspond to his health needs and beliefs.

On 14 April 2005 the Prešov District Court granted the above action and ordered the applicant to pay the plaintiff 9,388.8 Slovakian korunas (SKK) in monthly instalments of SKK 1,000. The court established that, under the above agreement signed on 19 January 2000, the applicant had undertaken to buy two meals a day in the care home, namely lunch and an afternoon snack. Those decisions had been upheld by the Prešov Regional Office and had become final. During the period between August 2000 and March 2001 the applicant had not paid the sum due for meals, namely SKK 9,388.8.

The court further noted that under the relevant regulation persons permanently living in a social care establishment were to be provided with at least two meals a day, one of which had to be lunch. The applicant had thus been obliged to buy such meals. His own decision to stop buying lunches during the period in issue had not been a reason for excusing the applicant from the obligation to pay the costs of his stay in the establishment, including the meals which the care home had been obliged to provide and which the applicant had been obliged to receive. The District Court further held that the applicant had not shown that his state of health obliged him to eat exclusively vegetarian food.

The applicant appealed. He argued that the District Court’s judgment was discriminatory and breached his human rights as he had been obliged to pay for meals which he had not wished to receive and which had not corresponded to his health needs and beliefs.

The plaintiff maintained that, in accordance with the statutory provisions in force, serving meals was a part of the comprehensive care services which were provided to the applicant. The applicant had undertaken to pay for the two meals which the law obliged him to buy. The food offered respected the principles of healthy nutrition and it was prepared with due regard to the age and state of health of the residents. Upon medical recommendation the care home provided, as required by the law, special food which corresponded to diabetic, high-protein or high-calorie diets. The applicant’s preference for vegetarian food was therefore a lifestyle choice and did not constitute special dietary needs.

On 17 January 2006 the Prešov Regional Court upheld the first-instance judgment. It noted that the Prešov Regional Office, on 1 February 2001, had approved the decision delivered on 13 September 2000 by the care home in which the applicant lived. Those decisions had determined the amount which the applicant was liable to pay for staying in the care home. It included the price of two meals a day which the applicant was obliged to buy in accordance with section 7 of Regulation 198/1998. The plaintiff had been obliged to prepare the meals, including lunch, for the applicant as he was receiving permanent care in the establishment and his stay there had not been interrupted during the relevant period. The refusal by the applicant to receive the meals for the above-mentioned reasons was not a relevant ground, within the meaning of section 27(5) of Regulation no. 198/1998, for absolving him from the obligation to pay the sum due.

Finally, the Regional Court noted that the applicant had not submitted any evidence indicating that his state of health was such that he needed to eat exclusively vegetarian food.

On 6 April 2006 the applicant lodged a complaint with the Constitutional Court. He complained that in the proceedings leading to the Regional Court’s judgment of 17 January 2006 he had been obliged to pay for meals which he did not wish to buy and which were not suitable from the point of view of his health, beliefs and religion. The applicant alleged a breach of several constitutional provisions, including the right to respect for one’s private life, the right to own property and the prohibition of discrimination.

On 24 May 2006 the Constitutional Court dismissed the complaint. It held that the ordinary courts involved had addressed and determined the relevant aspects of the case. The Constitutional Court could not deal with the case on the mere ground that the applicant disagreed with the Regional Court’s conclusion.

Under section 20(3)(a) of the Social Assistance Act 1998 (Law no. 195/1998 Coll.), social service establishments must provide indispensable welfare assistance to residents, which includes meals, accommodation and care.

Section 20(4) provides that meals served in such homes have to comply with the requirements of a healthy diet and take into account the age and state of health of the residents.

Paragraph 5 of section 20 obliges persons who receive care all year round or on a weekly basis to receive at least two meals a day in the establishment.

Pursuant to section 40(2), services provided in social service establishments must be paid for unless the law provides otherwise.

Section 43(3)(a) provides that food, accommodation and care is to be paid for in social service homes with the exception of homes for children.

Regulation no. 198/1998 issued by the Ministry of Labour, Social Affairs and Family provides in section 3(1) and (3) that care homes can obtain meals for persons in their care from different legal or natural persons authorised to provide catering services on the basis of a written agreement specifying the conditions and price.

Pursuant to section 7 of that Regulation, where a care home provides social services to a person all year round or on a weekly basis, that person has to be provided with all meals or, as a minimum, two meals a day, one of which must be lunch.

Under section 27(5), where a person has informed the social service establishment in a timely manner that he does not wish to receive meals, the sum corresponding to such meals must be restored to him or her by the end of following month.


The applicant, Mr Roland Volkmer, is a German national, who was born in 1941 and lives in Berlin. He was represented before the Court by Mr Meyer-Dulheuer, a lawyer practising in Berlin.

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

From 1966 until 1977, and from 1981 until 1993, the applicant taught German, Latin and, from 1968 onwards civic education (Staatsbürgerkunde) in secondary schools, first in the German Democratic Republic (“the GDR”), and as from 1990 in the Federal Republic of Germany (FRG). From 1970 to 1977 and from 1983 to 1989 he also served as honorary secretary (ehrenamtlicher Parteisekretär) of the East German Socialist Unity Party (Sozialistische Einheitspartei Deutschlands - “the SED”) at his school.

Between 1 March 1977 and 1 August 1981 the applicant, instead of teaching at school, was employed on a full-time basis in the executive committee of the district administration of the SED (hauptamtlicher politischer Mitarbeiter der Kreisleitung der SED).

After the German reunification the applicant became a teacher in the public service of the State of Berlin. Subsequent to the publication of a book containing statements of a former pupil of the applicant, alleging that the latter, in his capacity as SED representative, had asked him to attend a church conference on ecology about which he had later been interrogated by an official of the district council, the applicant was interviewed on this incident by the district councillor for education and culture (Bezirkstadträtin der Abteilung Bildung und Kultur) of Berlin-Friedrichshain on 29 August 1991. The applicant confirmed that he had asked his pupil, a secretary of the SED’s youth organisation (FDJ), to attend the conference, yet without being aware of any conspiratorial context or a later interrogation of the pupil. As a consequence of the interview, the district councillor decided to assign the applicant to another school within BerlinFriedrichshain and reserved the right to take further steps.

In a letter to the district councillor, dated 29 September 1991, the applicant stated that the participation of his former pupil in the church conference had occurred on a voluntary basis without any abuse of the teacher-student relationship. The aim of this action had been to confront the pupil with opinions contrary to his own. In any event, he had not been aware of any such purpose as the observation of political opponents.

On 7 April 1992 the applicant signed a new contract with the State of Berlin adjusting the terms of his employment to the new political situation in Germany. On 5 November 1992, the Special Commissioner of the Government for « person-related » documents of the former State Security of the GDR (Sonderbeauftragter der Bundesregierung für die personenbezogenen Unterlagen des ehemaligen DDR-Staatsicherheitsdienstes), acting on a request by the State of Berlin, informed the authorities that the applicant had been registered as contact person since 1970 in files of the Ministry of State Security (Ministerium für Staatssicherheit, “the MSS”). After having signed a declaration of confidentiality, he had been interviewed on five occasions about certain persons by MSS-officials. However, the applicant had not prepared any reports on individuals. In June 1971 the MSS had decided to cease cooperation with the applicant after only a few meetings due to a lack of willingness to cooperate on his part.

On 25 January 1993 the applicant was heard once again by the district council (Bezirksamt) of Berlin-Friedrichshain in order to clarify why, in an official questionnaire handed out to him in January 1991, he had replied “no” to the questions whether he had carried out any activity for the MSS and whether he had signed a declaration to that effect. The applicant stated that his answers had been correct since his contacts with the MSS had led to nothing. Moreover, he had never signed a declaration that he had not worked for the MSS but merely a declaration of confidentiality. An offer by the district council to cancel his contract of employment by means of a friendly settlement was rejected by the applicant.

On 29 January 1993, the applicant was suspended from his teaching functions. After the main staff council for public employees (Hauptpersonalrat) had indicated that it would only accept an “ordinary dismissal” (ordentliche Kündigung) within the delays prescribed by law, the applicant was served with a notice of termination of his employment contract dated 26 May 1993, and taking effect on 1 August 1993. The dismissal was based on Chapter XIX, Topic A, section III, no 1, § 4, of Annex I to the Unification Treaty (see relevant domestic law and practice below). The notice of termination stated as the reason for the dismissal that the public employer could not reasonably be expected to continue the applicant’s employment. Firstly, the applicant had failed to rebut the charge that he had been active for the MSS. Moreover, as a full-time member of the executive committee of the district administration of the SED, and an active supporter of and collaborator with the former East German one-party system, he could not be considered suited to uphold the free democratic constitutional system in front of his pupils. This was also reflected by the fact that he had used at least one pupil for spying on political opponents and by the lack of awareness of guilt he had shown during the interview of 25 January 1993. Finally, the applicant had failed to indicate his contacts with the MSS in the official questionnaire.

By a judgment of 6 October 1993, the Berlin Labour Court (Arbeitsgericht Berlin) held that the applicant’s employment had not been terminated by the dismissal of 26 May 1993, in the absence of any valid grounds for dismissal. In particular, the applicant could not be considered unsuited to teach German and Latin because of his former functions within the SED. Furthermore, the State of Berlin had forfeited its right to terminate the applicant’s employment after it had continued his employment following the first interview with the applicant in August 1991. The applicant had been justified in denying any activity for the MSS in the official questionnaire because the attempt by the MSS to make him cooperate had remained unsuccessful.

By a judgment of 16 March 1994 the Berlin Higher Labour Court of Berlin (Landesarbeitsgericht Berlin) reversed the judgment of the Labour Court. Although the Court held that the applicant had not cooperated with the MSS, and that his answers in the official questionnaire were correct since the inquiry was not whether he had had contact with the MSS but whether he had carried out activities for it, it found the dismissal to be justified on account of the applicant’s unsuitability to continue teaching. It held that his full-time employment as an SED official from 1977 to 1981 gave rise to doubts whether he was in a position to dispense the values of the German Basic Law (Grundgesetz) to his pupils. Similarly, his honorary function as an SED representative at his school from 1970-1977 and again from 1983-1989 reflected his identification with the political system of the GDR. Moreover, the fact that the applicant had asked one of his pupils, on the orders of the executive committee of the district administration of the SED, to attend a church conference in the knowledge that the pupil would subsequently be interrogated about that conference by the East German authorities, constituted an abuse of the teacher-pupil relationship for the purpose of spying on political opponents. The Court considered this behaviour to be incompatible with the educational aims of freedom of opinion and tolerance. The applicant’s argument that his intention had been to confront the pupil with opinions opposite to his own was, in the Court’s view, a mere excuse. Furthermore, the Court found that the public employer had not forfeited the right to dismiss the applicant after it had assigned him to another school because this measure was in the nature of a first and by no means final reaction to the interview with the applicant held on 29 September 1991. At that time the applicant had been explicitly informed that further steps could be taken against him and he could have expected, according to the practice in similar cases, a further consultation of the Special Commissioner of the Government in the matter. Similarly, the renewal of his contract in April 1992 was to be seen in the general context of readjusting the terms of employment of former public servants of the GDR and thus was without prejudice to the process of reviewing the personal involvement of such State employees with the political system of the GDR.

By a judgment of 16 November 1995 the Federal Labour Court (Bundesarbeitsgericht) held that the termination of the applicant’s employment was effective as of 1 January 1994 and dismissed the remainder of his appeal against the Higher Labour Court’s judgment of 16 March 1994. It found that the applicant lacked the personal aptitude required for public service. Contrary to the case where a teacher had been dismissed for membership of the German Communist Party, which dismissal had been found to be in violation of Article 10 of the Convention (Vogt v. Germany judgment of 26 September 1995, Series A no. 323), here the applicant’s dismissal was not only based on his SED membership and his political beliefs but on his professional and honorary functions within that party, which reflected his especially strong identification with the SED system and indicated his unfitness to uphold the free democratic constitutional system in front of his pupils. Indeed, as party secretary, it was his duty to implement the ideological aims of the SED at school (“die ideologische Umsetzung der Ziele der SED in der Schule”). His unsuitability was also shown by the fact that he had asked a pupil to spy on meetings of ideological opponents.

By a decision of 1 October 1997 the Federal Constitutional Court (Bundesverfassungsgericht) declined to entertain the applicant’s constitutional complaint against the above judgments.

Paragraphs 1 to 4 of Chapter XIX, Topic A, Section III, no. 1, of Annex I to the German Unification Treaty provide that civil servants of the GDR are integrated into the public service of the FRG by substituting in the existing work relations the Federal authorities and the Länder of the FRG for the authorities of the GDR. As civil servants of the GDR were part of an institution that did not satisfy the criteria of a State governed by the rule of law, special dismissal provisions were inserted in Paragraphs 4 to 6 of Chapter XIX, Topic A, Section III, no. 1, of Annex I to the Treaty.

Paragraph 4 of Chapter XIX, Topic A, Section III, no. 1, of Annex I to the German Unification Treaty accordingly provides :

“Ordinary dismissal from an employment relationship in the public administration is permissible if

the employee does not comply with the requirements on account of a lack of professional qualification or personal aptitude (...)”

“Die ordentliche Kündigung eines Arbeitsverhältnisses in der öffentlichen Verwaltung ist zulässig, wenn

der Arbeitnehmer wegen mangelnder fachlicher Qualifikation oder persönlicher Eignung den Anforderungen nicht entspricht (...)”

Paragraph 5 of the same Chapter reads as follows:

“A valid reason for an extraordinary dismissal exists, in particular, if the employee

cooperated with the former Ministry of State Security/Agency for National Security [of the German Democratic Republic]

and if the public employer can therefore not reasonably be expected to continue the employment relationship.”

“Ein wichtiger Grund für eine ausserordentliche Kündigung ist insbesondere dann gegeben, wenn der Arbeitnehmer

für das frühere Ministerium für Staatssicherheit/Amt für nationale Sicherheit tätig war

und deshalb ein Festhalten am Arbeitsverhältnis unzumutbar erscheint”.

According to the case-law of the Federal Constitutional Court, a civil servant has a duty to uphold the free democratic constitutional system in everything he does (BverfG, Constitutional Court Decisions, vol. 2, p. 1). In particular, a school teacher is required to instil the fundamental values of the German Basic Law in his pupils and to ensure loyalty to those values in times of crisis as well as in situations of conflict (BVerfG, decision of 22 May 1975 - Ref. no. 2 BvL 13/73 - BverfG, Constitutional Court Decisions, vol. 39, p. 334).


The applicant, Grüner Klub im Rathaus, is the fraction of an Austrian party to the Vienna Regional Parliament (Landtag). It was represented before the Court by Mrs M. Windhager, a lawyer practising in Vienna. The respondent Government were represented by Mr F. Trauttmansdorff, Head of the International law Department at the Federal Ministry for Foreign Affairs.

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

In the autumn of 2000 a police officer, Mr Kleindienst, revealed that he and some colleagues had repeatedly transmitted data from the central police computer to officials of the Austrian Freedom Party (FPÖ). Subsequently criminal investigations were opened against several persons. In the autumn of 2002 the Vienna Regional Court (Landesgericht) convicted Mr Kleindienst and the FPÖ official Mr Kreiβl and sentenced them to six months’ imprisonment suspended on probation. This judgment was later, in February 2004, quashed upon appeal and Mr Kleindienst and Mr Kreiβl were acquitted.

In the meantime, after the first instance judgment, the applicant issued, on 17 September 2002, a press release which read as follows:

“Member of the Green Party to the police information scandal:”[A] gift and [a] shame.”

Maria Vassilakou: Austria desperately needs a new Minister of Justice

Vienna (Member of the Green Party): “A shame. This judgment quite clearly bears the hallmark of Kreiβl’s fellow party member, the Minister of Justice, Böhmdorfer” so [says] the Green Member of the City Council Maria Vassilakou in view of the low [sentences of the] judgments against Kleindienst and Kreiβl. “If one considers the genesis of this incredible police information scandal, one has to wonder very much that after a dozen of suspects, month-long investigations and a long trial only this [judgment] remains.”

Vassilakou concludes: “An embarrassing judgment which lets down the persons who have been spied upon and opens the floodgates for further abuse of personal data by ‘political engaged’ or simply ‘currupt’ executive officers”

[Grüne zu Spitzelaffäre:”Geschenk und Schande”

Maria Vassilakou: Österreich braucht dringend neuen Justizminister.

Wien (Grüne) “Eine Schande. Dieses Urteil trägt ganz klar die Handschrift von Kreiβels Parteifreund Justizminister Böhmdorfer”, so die Grüne Stadträtin Maria Vassilakou in Anbetracht der geringen Urteile gegen Kreiβl und Kleindienst. “Betrachtet man die Genesis dieser unglaublichen Spitzelaffäre wundert man sich schon sehr, wenn von mehreren Dutzend Verdächtigen, monatelangen Untersuchungen und ein langwieriger Prozess lediglich dies übrig bleibt.”

Vassilakou abschlieβend: “Ein peinliches Urteil, das die bespitzelten Personen im Regen stehen lässt und Tür und Tor für weiteren Missbrauch von vertraulichen Personendaten durch ‘politisch engagierte’ oder schlicht ‘käufliche’ Exekutivbeamten öffnet”]

Mr Böhmdorfer subsequently brought proceedings under section 6 of the Media Act (Mediengesetz) with the Vienna Regional Court (Landesgericht für Strafsachen).

On 28 November 2002 the Regional Court, having held on oral hearing, found that the statement “A shame. This judgment quite clearly bears the hallmark of Kreiβl’s fellow party member, the Minister of Justice, Böhmdorfer” amounted to defamation within the meaning of Articles 111 and 297 of the Criminal Code (Strafgesetzbuch). It ordered the applicant under section 6 of the Media Act to pay compensation to Mr Böhmdorfer in the amount of 3,000 euros (EUR). It further ordered it to publish the judgment.

The court noted that the impugned statement read in its context suggested that Mr Böhmdorfer had abused his authority as Minister of Justice to influence the deciding court. However, the applicant had failed to prove that this had indeed been so.

The applicant appealed and submitted in particular that the impugned statement amounted to a value judgment on a political issue and it was therefore, in any event, not possible to prove its veracity. Furthermore, there had been some factual basis for the statement. The applicant referred in this regard to the general political background of the “police information scandal”, the conduct of the criminal investigations and to the fact that Mr Böhmdorfer at the beginning of the investigations had refused all reproaches of illegal data consulting. The applicant finally contended that the court should have interpreted the statement in a broader sense, meaning that the judgment against Mr Kleindienst and Mr Kreiβl corresponded to Mr Böhmdorfer’s political mindset and style.

On 8 September 2003 the Vienna Court of Appeal (Oberlandesgericht) dismissed the applicant’s appeal. It found that the impugned statement, read in its context, did not allow any other conclusion to be drawn than that Mr Böhmdorfer had unlawfully influenced the deciding judge in the criminal proceedings. However, the evidence adduced by the applicant, namely general press releases relating to the conduct of the criminal investigations in the police information case, Mr Böhmdorfer’s statements in the context of these investigations and the fact that Mr Böhmdorfer had himself been criticised for allegedly having used illegal obtained material, did not give any indication for the veracity of this allegation. The applicant’s right to freedom under expression under Article 10 of the Convention did not protect false statements of facts. Moreover, the applicant had not even given Mr Böhmdorfer the opportunity to comment.

This judgment was served on the applicant’s counsel on 22 October 2003.


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

David Thór Björgvinsson;Giovanni Bonello;Lech Garlicki;Ledi Bianku;Nicolas Bratza;Stanislav Pavlovschi

The applicant was born in 1955 and lives in Leicester.

His wife died on 16 February 1996, leaving two children of ten and twelve years of age respectively. His claim for widows’ benefits was made on 9 February 1997 and was rejected on 18 February 1997 on the ground that he was not entitled to widows’ benefits because he was not a woman. The applicant appealed and his claims were consistently rejected up to the most recent decision dated 23 October 2000.

On an unspecified date the applicant made a claim to the Inland Revenue, requesting an allowance equivalent to that received by a widow, namely Widow’s Bereavement Allowance (“WBA”). After various rejections, on 20 September 2000 the Inland Revenue confirmed that he was ineligible for WBA as he was not a woman.

The applicant did not appeal further as he considered or was advised that such a remedy would be bound to fail since no such social security or tax benefits were payable to widowers under United Kingdom law.

The relevant domestic law and practice is described in the Court’s judgments in the cases of Willis v. the United Kingdom, no. 36042/97, §§ 1426, ECHR 2002-IV; and Hobbs, Richard, Walsh and Geen v. the United Kingdom, nos. 63684/00, 63475/00, 63484/00 and 63468/00, judgment of 26 March 2007.


Violation of Art. 6-1 (length of land registry proceedings);Violation of Art. 13;No separate issue under P1-1;Remainder inadmissible (length of inheritance proceedings);Non-pecuniary damage - financial award

The applicant was born in 1938 and lives in Jelsa.

The applicant’s mother died on 1 May 1994 and inheritance proceedings were opened before the Stari Grad Municipal Court (Općinski sud u Starom Gradu).

On 8 June 1999 the court issued a decision distributing the property between the applicant and his brother. The relevant part of that decision reads:

... the land registry division of this court shall register the ownership of the heirs [listed above], once [that part of the decision] becomes final...

Subsequently, the applicant’s brother lodged an appeal against that decision complaining about the ruling on the costs of the proceedings.

On 12 April 2002 the Split County Court (Županijski sud u Splitu) declared the appeal inadmissible. The decision was served on the applicant’s representative on 22 May 2002.

It would appear that the applicant’s ownership of the inherited property has to date not been recorded in the land register.


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

The applicant was born in 1928 and lives in Brwinów.

On 15 June 1994 the applicant filed an application for the distribution of an inheritance left by his grandmother.

On numerous occasions the proceedings were suspended, mostly due to the successive deaths of the parties. The proceedings were:

suspended on 30 November 1995;

resumed on an unknown date in 1999;

suspended on 25 January 2000;

resumed on an unknown date in 2000 or 2001;

suspended on 6 June 2001;

resumed on 25 October 2004;

suspended on 18 January 2005;

resumed on 24 April 2006;

suspended on 5 July 2006;

resumed on 27 August 2007;

suspended on 7 December 2007 but immediately resumed;

suspended on 15 February 2008.

The proceedings are still pending before the court of first instance.

On 10 April 2009 the applicant lodged a complaint with the Warsaw Regional Court under the Law of 17 June 2004 on complaints about a breach of the right to a trial within a reasonable time (ustawa o skardze na naruszenie prawa strony do rozpoznania sprawy w postępowaniu sądowym bez nieuzasadnionej zwłoki – “the 2004 Act”). He sought a finding that the length of the proceedings was excessive and compensation.

On 7 May 2009 the Warsaw Regional Court dismissed the applicant's complaint. In its assessment of the length of the proceedings, the Regional Court did not take into account the period before the entry into force of the 2004 Act. It then went on to analyse in detail the course of the proceedings, finding that the District Court had conducted them in a correct and timely manner. It further concluded that the long duration of the proceedings had resulted from numerous requests and motions filed by the parties as well as from the successive deaths of the parties. This obliged the District Court to suspend the proceedings each time. The Regional Court finally pointed out that it was incumbent on the parties and not on the court to determine the identity of the heirs of the deceased parties in order for the proceedings to be continued.

The relevant domestic law and practice concerning remedies for the excessive length of judicial proceedings, in particular the applicable provisions of the 2004 Act, are stated in the Court's decisions in the cases of Charzyński v. Poland no. 15212/03 (dec.), §§ 12-23, ECHR 2005-V and Ratajczyk v. Poland no. 11215/02 (dec.), ECHR 2005-VIII and the judgment in the case of Krasuski v. Poland, no. 61444/00, §§ 34-46, ECHR 2005-V.


The applicant, Mrs Elisabeth Lamprecht, is an Austrian national who lives in Linz. She was represented before the Court by Mr H. Blum, a lawyer practising in Linz.

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

The applicant introduced proceedings for the preservation of evidence (Beweissicherungsverfahren) against a building company, P.

On 3 February 2000 the Linz District Court (Bezirksgericht) ordered the applicant to pay part of the defendant's costs relating to the preservation of evidence, namely 7,416.96 Austrian schillings (ATS).

The defendant appealed against the costs order (Kostenrekurs). This appeal was not transmitted to the applicant.

On 21 December 2000 the Linz Regional Court (Landesgericht), sitting in camera, partly granted the defendant's appeal and ordered the applicant to reimburse costs of altogether ATS 8,459.64.

No main proceedings were brought, as meanwhile, in April 2000, the parties had concluded an out-of-court settlement. Under the terms of this settlement the P. company paid the applicant ATS 25,000 as compensation for damages and ATS 20,693.98 as reimbursement for cash expenses incurred in the proceedings for the preservation of evidence.

Proceedings for the preservation of evidence are regulated in the Code of Civil Procedure (Zivilprozeßordnung).

“(1) An application for evidence to be taken or for witnesses and experts to be heard can be lodged, for the purposes of securing the presentation of the evidence, at any time in the proceedings and even before the proceedings have begun if there is cause to fear that the evidence will otherwise be lost or its examination made difficult.

(2) Those measures can also be ordered where the conditions of [Article 284] paragraph 1 are not satisfied if the present condition of an item of evidence is to be ascertained and the applicant has a legal interest in having it ascertained.”

“(3) The party applying for the measure shall be liable for the costs of the taking of evidence without prejudice to any claim for damages on their part. The other party to the proceedings shall be reimbursed the necessary costs of his or her participation in the taking of evidence without prejudice to the decision in the main proceedings.”