Preliminary objection joined to merits and dismissed (victim);Violation of Art. 5-1;Remainder inadmissible;Non-pecuniary damage - award

Alvina Gyulumyan;Corneliu Bîrsan;Egbert Myjer;Ján Šikuta;Josep Casadevall;Luis López Guerra;Mihai Poalelungi

The applicant was born in 1974 and lives in Štúrovo.

On 5 February 2004 the police arrested the applicant. He was accused of planning a robbery and remanded in custody from that date.

Several decisions extending the applicant’s detention were made. In particular, on 18 November 2004 the Žilina District Court extended his detention in the context of the pre-trial proceedings until 24 January 2005.

On 21 January 2005 the public prosecutor indicted the applicant and several other persons before the Žilina Regional Court.

The applicant requested to be released, arguing that the Regional Court had not extended his detention after the expiry of the period indicated in the District Court’s decision of 18 November 2004.

On 20 April 2005 the Regional Court ordered the applicant’s release. Upon a complaint lodged by the public prosecutor the Supreme Court decided on 24 May 2005 that the applicant should remain remanded in custody.

On 2 June 2005 the Regional Court dismissed the applicant’s request for release. On 15 June 2005 the Supreme Court dismissed a complaint by the applicant against that decision.

On 22 July 2005 the applicant complained to the Constitutional Court that his detention in the period after 24 January 2005 and the Supreme Court’s above decision of 24 May 2005 were both unlawful. In a separate complaint lodged on 31 August 2005 the applicant complained about the refusal to release him in the proceedings leading to the Supreme Court’s decision of 15 June 2005.

On 5 February 2006 the applicant was released.

On 10 May 2006 the Constitutional Court found that the applicant’s right under Article 5 § 1 had been violated as a result of the Supreme Court’s decision of 24 May 2005. There had been no judicial decision extending his detention after 24 January 2005, and there existed no justification for that situation.

The Constitutional Court quashed the Supreme Court’s decision of 24 May 2005 in so far as it concerned the applicant and ordered the Supreme Court to reimburse the applicant’s costs in the constitutional proceedings. It dismissed the applicant’s claim for just satisfaction with reference to a conclusion which a different chamber of the Constitutional court had reached in the case of one of the applicant’s co-accused. According to that conclusion, (i) the finding of a violation of Article 5 § 1 provided appropriate redress to the plaintiff and (ii) the Supreme Court’s decision of 24 May 2005 was based on that court’s earlier practice, which, however, was not in accordance with practice under the Convention.

In a judgment of 30 November 2006 the Constitutional Court found that by its decision of 15 June 2005 the Supreme Court had breached the applicant’s right under Article 5 § 1 of the Convention. In particular, the Supreme Court should have remedied the situation resulting from the applicant’s unlawful detention from 25 January 2005 by ordering his release.

The judgment stated, in particular:

“In the Constitutional Court’s view, the jurisdiction of the court involved at the pre-trial stage ended with the filing of the indictment on 21 January 2005. The indictment as such is not a ground for continued detention of a person, as it does not explicitly follow from the law, and it is inadmissible to extend the possibilities of restricting a person’s liberty by extensive interpretation of several provisions of the Code of Criminal Procedure.

However, a court’s decision on detention of a person given at the pre-trial stage can constitute a ground for such person’s detention for a short period following the indictment. Otherwise it would be practically impossible to ensure continued detention of a person after an indictment has been filed. In the circumstances, a ground for the applicant’s detention existed until 25 January 2005. The detention should have been extended by a decision given no later than 25 January 2005 if it was to continue after that date. In the absence of any such decision, the restriction of the applicant’s liberty after 25 January 2005 was unlawful.

The unlawfulness of the applicant’s deprivation of liberty after 25 January 2005 cannot be justified retrospectively, not even by a judicial decision. Subsequent judicial decisions could not have extended the applicant’s detention, as it had ended on 25 January 2005. The only existing possibility was to remand the applicant in custody again. As this was not done, his subsequent deprivation of liberty had no legal ground.”

The Constitutional Court quashed the Supreme Court’s decision of 15 June 2005, granted the equivalent of 2,818 euros (EUR) to the applicant as just satisfaction and ordered the Supreme Court to reimburse the applicant’s costs.

The following provisions of the Code of Criminal Procedure of 1961 (Law no. 141/1961 Coll., in force until 31 December 2005) are relevant in the present case.

Pursuant to Article 71 § 1, a person’s detention in the context of both pre-trial proceedings and during proceedings before a trial court may only last as long as necessary. Where detention in the context of pre-trial proceedings is to exceed six months, it may be extended at a public prosecutor’s request up to one year by a judge or to a maximum of two years by a court’s chamber.

Article 71 § 2 provides that a person’s detention in the context of both pre-trial proceedings and during trial must not exceed two years. In justified cases the Supreme Court may extend its duration to a maximum of three years and in cases of particularly serious offences up to five years. Under paragraph 3 of Article 71, a proposal for extension of a person’s detention is to be submitted by a public prosecutor in the pre-trial proceedings and by the president of the court’s chamber during the trial.

Article 72 § 1 obliges investigators, prosecutors and judges to examine, at each stage of criminal proceedings, whether reasons for the accused person’s detention persist. In pre-trial proceedings a judge is obliged to do so only when deciding on a public prosecutor’s proposal to extend detention or to modify the reasons for it or when deciding on an accused person’s application for release. Where a reason for an accused person’s detention no longer exists, the accused must be released immediately.

Article 72 § 2 entitles an accused to apply for release at any time. When the public prosecutor dismisses such an application in the course of pre-trial proceedings, he or she must submit it immediately to the court. The decision on an application for release must be taken without delay. If an application is dismissed, the accused may only renew it fourteen days after the decision has become final unless he or she cites other reasons justifying his or her release.

Pursuant to Article 192, where the court carries out a preliminary examination of the indictment of a person who is detained, it shall also decide whether that person is to remain in custody.

In accordance with the Supreme Court’s practice, the time-limits mentioned in Article 71 § 1 of the Code of Criminal Procedure of 1961 concerned exclusively situations where a decision on a public prosecutor’s proposal was to be made in the context of pre-trial proceedings. However, where an indictment had been filed within a shorter time than the two-year period mentioned in Article 71 § 1, the law did not require that a request for continued detention of the accused persons be made or that a separate decision should be made on their continued detention, with the exception of cases where the indictment had been filed less than ten days before the expiry of the two-year maximum period of detention.

Pursuant to a Supreme Court’s standpoint of 1975 (Rt 5/75), Article 192 of the Code of Criminal Procedure requires a court to decide on further detention of the accused where it carries out a preliminary examination of the indictment. Accordingly, where the presiding judge concludes, on the basis of the file, that a preliminary examination of the indictment is not required and considers the detention of the accused to be lawful, there is no need for a separate decision of the court chamber on continued detention of the accused. However, where the accused applies for release, that application must be decided upon without delay, in accordance with Article 72 § 2 of the Code of Criminal Procedure.

In judgment I. ÚS 6/02 the Constitutional Court noted that the Code of Criminal Procedure did not explicitly require that a decision on extension of an accused person’s detention be given in cases where an indictment had been filed and where the detention, both at the pre-trial stage and during the trial, had not exceeded two years.

It held, however, that the filing of an indictment alone did not as such justify a person’s continued detention. The court dealing with the case was required to decide explicitly on further detention of the accused prior to the expiry of the period for which the detention had been extended in the context of pre-trial proceedings.

In its judgment the Constitutional Court referred in particular to the guarantees laid down in Article 5 § 1 of the Convention and the Court’s judgment in Stašaitis v. Lithuania (no. 47679/99, 21 March 2002, §§ 59-61).

In that case the Constitutional Court found no breach of Article 5 § 1 as the ordinary court involved, both in the context of a preliminary examination of the indictment and in reaction to the accused person’s request for release, had decided that the reasons for the latter’s detention persisted. That decision had the same effect as a decision to extend the accused person’s detention.

In the above case, which concerned one of the present applicant’s co-accused, the detention in the context of pre-trial proceedings had been extended until 24 January 2005. Prior to its expiry, on 21 January 2005, the accused was indicted. In its judgment the Constitutional Court found that the Supreme Court had breached the plaintiff’s right under Article 5 § 1 of the Convention, in that there had been no judicial decision extending his detention after 24 January 2005 and there existed no justification for that situation. It was irrelevant that courts at two levels had dismissed the accused person’s application for release on 14 January 2005 and 23 February 2005 respectively, as those decisions related to detention in the context of pre-trial proceedings, that is prior to the filing of the indictment. In those circumstances, any relevant decision on further detention of the accused could have been taken only by the criminal court before which the accused had been indicted.

With reference to its judgment I. ÚS 6/02 of 4 December 2002, the Constitutional Court held that for a detention to be lawful it must always rely on a court decision. Since May 2006 the Constitutional Court has confirmed that opinion in a number of judgments, including the cases of the applicant and another two of his co-accused.

In judgment I. ÚS 115/07 the Constitutional Court confirmed that the filing of an indictment alone does not suffice for continued detention of an accused to be lawful. The court dealing with the criminal case which follows an indictment is required to take a decision on the accused person’s detention prior to the expiry of the period for which the latter had been remanded in the context of pre-trial proceedings. The Constitutional Court found a breach of the accused person’s right under Article 5 § 1 of the Convention and ordered his immediate release.

The new Code of Criminal Procedure (Law no. 301/2005 Coll.) entered into force on 1 January 2006.

Article 76 § 5 provides, inter alia, that a court is obliged to decide on further detention of an accused within fifteen days of his or her indictment (or submission for its approval of an agreement between the prosecution and the accused on guilt and punishment) unless it has already decided on detention of the accused under provisions which govern the examination of indictments.

The explanatory report to the draft Code of Criminal Procedure of 2005 indicates that the above provision accentuates the judicial control of a person’s detention following his or her indictment and that the amendment is also in reaction to the Constitutional Court judgment I. ÚS 6/02 of 4 December 2002.

The State Liability Act 2003 was enacted with effect from 1 July 2004.

Pursuant to section 7, where a decision on arrest, detention or any other deprivation of liberty was quashed as being unlawful or where there was wrongful official action in that context, a person affected by it is entitled to compensation for damage.

The State is liable for damage caused by wrongful official action which comprises, inter alia, a public authority’s failure to take action within a set time-limit, inactivity, or any other unlawful interference with rights and legally recognised interests of individuals and legal entities (section 9(1)).

Under section 17 the compensation is to cover pecuniary damage, including loss of profit, and, where appropriate and necessary, non-pecuniary damage.

In a judgment of 16 March 2007 (in case no. 4C 258/2006) the Brezno District Court allowed an action for damages by two individuals against the State under the State Liability Act 2003 and ordered the defendant to pay the costs of their defence in a criminal trial on charges of 2005 which had ended with their acquittal with final and binding effect in 2006. On 22 November 2007 the Banská Bystrica Regional Court upheld that judgment following an appeal by the defendant.

In a judgment of 17 August 2009 (in case no. 19C 47/2006) the Bratislava I District Court granted an action for damages by an individual against the State under the State Liability Act 2003 and awarded the claimant a sum in compensation for non-pecuniary damage caused by wrongful official action in connection with his detention pending a criminal trial. The impugned wrongful official action concerned the extension by a decision of 12 October 2004 of the claimant’s detention pending trial, until 28 April 2005. The action was preceded by a judgment of the Constitutional Court of 19 October 2005 (in case no. I. ÚS 65/05) in which the Constitutional Court had found a violation of the plaintiff’s rights under Article 5 §§ 3 and 4 in connection with the same facts. However, the Constitutional Court had made no award to the claimant of just satisfaction as he had made no claim to that effect.


Violation of Art. 3;Violation of Art. 11

András Sajó;David Thór Björgvinsson;Françoise Tulkens;Guido Raimondi

The applicants were born in 1984, 1980, 1955 and 1979 respectively and live in Istanbul.

On 17 October 2003 the applicants took part in an anti-war demonstration in Istanbul. The gathering was dispersed by police officers and the applicants were arrested and taken into police custody where they remained until their release the following day. The applicants allege that they were subjected to ill-treatment during their arrest and their detention in custody.

According to an incident report drawn up by a number of police officers on 17 October 2003, fifty to sixty persons, including the applicants, gathered in a square in Istanbul at 7.45 p.m. and chanted anti-war slogans, protesting against the Government’s proposals to send soldiers to participate in the invasion of Iraq. The police had warned them with loudspeakers that they were disturbing the flow of traffic and had unsuccessfully asked them to disperse. When the police had attempted to arrest some of the demonstrators and put them into the police vehicles, a number of the demonstrators had displayed “rowdy behaviour” and the police had had to use force against them. A total of six persons, including the applicants, had been arrested and taken to a police station at 8.30 p.m. the same evening. This incident report was signed by six police officers who were only referred to in the report with their identification numbers.

The same day the applicants were examined by a doctor. According to the medical reports, the second and third applicants had no signs of ill-treatment on their bodies. The first applicant had bruising on her lower lip and on her lower right leg. The fourth applicant had bruising on the left side of his lower back and on the back of his right ear. His legs were also sensitive and he had redness in his left eye.

The same evening the applicants were questioned by the police in the presence of a duty lawyer. With the exception of the third applicant, all the applicants exercised their right to remain silent.

The following day the applicants were examined by a doctor once more. According to the medical reports, there were no signs of ill-treatment on the applicants’ bodies other than those mentioned in the medical reports drawn up the previous day.

At around 2 p.m. the same day the applicants were brought before the Bakırköy prosecutor. The applicants told the prosecutor that by attending the demonstration they had been exercising their democratic rights. They also alleged that the police had arrested them without any previous warnings. The fourth applicant complained that he had been beaten up by the police officers. The first and fourth applicants also complained that police chief M. T. had sworn at them during their time in police custody. The same day the applicants were released.

On 21 October 2003 the Bakırköy prosecutor asked for an investigation to be opened into the applicants’ allegations of ill-treatment.

The applicants submitted a formal complaint to the Bakırköy prosecutor on 5 November 2003. With the exception of the third applicant, Mr Hacı Badem, the applicants complained of ill-treatment. Referring to Article 3 of the Convention the three applicants stated that the police officers had punched and kicked them in the course of their arrests, as well as during their detention at the police station.

Between 10 December 2003 and 13 April 2004 the Bakırköy prosecutor questioned eleven police officers. Ten of the police officers denied having been at the demonstration or having seen any of the demonstrators because they had been working elsewhere at the time. The remaining officer, police chief M.T., told the prosecutor that he had not taken part in the dispersal of the demonstration but had questioned the applicants in police custody. He denied having ill-treated any of the arrestees or having sworn at them.

On 14 April 2004 the Bakırköy prosecutor decided to close the investigation into the applicants’ allegations of ill-treatment. On the basis of the documents in the file the prosecutor considered that when the applicants refused to disperse the police had had to use force against them. The applicants’ “simple injuries” had thus been caused when the police had been exercising their statutory powers on the use of force.

The applicants’ objection against the prosecutor’s decision was rejected by the Eyüp Assize Court on 8 December 2004. This decision stated that it was to be served on the applicants.

According to a hand-written note on this decision, it was communicated to the applicants on 9 February 2005.

In the meantime, on 21 October 2003 criminal proceedings were instigated against the applicants for having taken part in an unlawful demonstration, in breach of sections 33, 36 and 40 of the Meetings and Demonstration Marches Act (Law no. 2911).

On 28 January 2008 the Bakırköy Criminal Court of First Instance acquitted the applicants, holding that they had exercised their democratic rights and not committed any offences.


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

The applicant, Mr Georgi Istilyanov Nenkov, is a Bulgarian national who was born in 1927 and lives in the village of Mala Tsarkva, near the town of Samokov.

He was represented before the Court by Mr L. Klyavchev, a lawyer practising in Sofia. The Bulgarian Government (“the Government”) were represented by their Agent, Ms M. Pasheva, of the Ministry of Justice.

On the morning of 7 April 1999 the applicant went to a neighbouring village on business. While on his way back to his home village, he allegedly met a neighbour, Mr N.N., who was transporting stones in a horsecart. Apparently the applicant and Mr N.N. had for a number of years been involved in a property dispute relating to a plot of agricultural land owned by the applicant.

After that the applicant had lunch in his house and at about 2 p.m. went to clean the abovementioned plot of land. He saw a pile of stones there and started throwing them out. Then Mr N.N. allegedly tried to enter the applicant’s plot with his cart. The applicant took a pole and tried to hit Mr N.N.’s horse. According to the applicant’s allegations, at that point Mr N.N. struck him in the face with a pitchfork and then knocked him on the back of the head with it. The assault left the applicant blinded and bleeding. After that he reportedly heard the noise of a horsecart driving away. There were no other persons present at the scene.

Some time later Mr D. and Mr R.S. arrived at the scene of the incident. Mr R.S. took the applicant to a hospital. They did not witness the incident, but the applicant told them that Mr N.N. had assaulted him.

As a result of the pitchfork blow to the face, the applicant lost the sight of both eyes.

The same day the police opened a preliminary inquiry (see below, Relevant domestic law and practice) into the incident and impounded two pitchforks from Mr N.N.’s house. They did not apprise the competent prosecutor of the impounding. It seems that in the course of the inquiry Mr N.N. admitted to having hit the applicant.

Later, a criminal investigation was opened and on an unspecified date in 2000 Mr N.N. was charged with inflicting grievous bodily harm on the applicant, contrary to Article 128 §§ 1 and 2 of the 1968 Criminal Code (see below, Relevant domestic law and practice). The investigation authorities interviewed the applicant, seven witnesses, and Mr N.N., who denied any wrongdoing.

A medical expert report drawn up during the proceedings found that the applicant had completely lost the sight in his left eye, and could only distinguish light from dark with his right eye. The report also established that the injuries were consistent with a pitchfork blow as the one described by the applicant. The report concluded that the applicant had become permanently blind in both eyes, which amounted to grievous bodily harm, while the other injuries, to his face and the back of his head, were minor.

On 2 November 2000 the applicant applied to join the proceedings as a private prosecutor and a civil claimant.

On an unspecified date the investigator in charge of the case sent the file to the Samokov District Prosecutor’s Office with a proposal to indict Mr N.N.

In a decision of 13 February 2001 a prosecutor of the Samokov District Prosecutor’s Office decided to drop the charges against Mr N.N. and discontinue the investigation in respect of him, continuing it against an “unknown perpetrator”. She reasoned that he had denied his guilt and that, apart from the applicant, there were no eyewitnesses who could positively establish the identity of the perpetrator of the offence; the statements of the witnesses could not fill this lacuna. It followed that the charges could not be proved beyond reasonable doubt, whereas a conviction or even an indictment could not rest on inferences. All possible investigative steps had been taken and no further incriminating evidence had been uncovered. It was true that the police had impounded a pitchfork on the day of the offence, but it could not be admitted in evidence, as the impounding had not been carried out in accordance with the relevant rules of procedure. According to the Supreme Court’s caselaw, all acts of procedure carried out prior to the institution of criminal proceedings, within the framework of a preliminary inquiry under Article 191 of the 1974 Code of Criminal Procedure (“the CCP” – see below, Relevant domestic law and practice), could exceptionally be considered valid only if they had been undertaken with the knowledge of the competent prosecutor. In the case at hand the competent prosecutor at the Samokov District Prosecutor’s Office had not been informed of the impounding either before or immediately after it had been carried out. Under Article 85 § 2 of the CCP (see below, Relevant domestic law and practice), this omission had compromised the evidence thus obtained. Finally, the prosecutor decided to stay the investigation, as the identity of the perpetrator was unknown.

In line with Article 237 § 3 of the CCP, as in force at the relevant time (see below, Relevant domestic law and practice), the Samokov District Prosecutor’s Office sent a copy of the decision to the Sofia Regional Prosecutor’s Office. On 21 February 2001 that office confirmed it, citing the same reasons. It added that the impounding had not been carried out in the presence of certifying witnesses, that the scene of the crime had not been preserved, that after the incident of 7 April 1999 Mr N.N. had not been examined for traces of blood on him, and that he had an alibi, confirmed by three witnesses. No other investigative steps were possible.

A copy of the prosecutor’s decision was sent to the Sofia Regional Court. In a decision of 2 March 2001 it also confirmed the discontinuation, agreeing with the prosecutors’ reasoning. The applicant was not notified of the court’s decision.

After he found out about it, on 19 March 2001 he lodged an appeal with the Sofia Regional Prosecutor’s Office. On 5 April 2001 that office dismissed the appeal, informing the applicant that the discontinuation of the proceedings was not subject to appeal. The review procedure was automatic and had already taken place.

On 20 April 2001 the applicant requested the Chief Prosecutor to reopen the investigation. In reply, on 6 June 2001 the Supreme Cassation Prosecutor’s Office informed the applicant that following the amendments of the CCP which had come into force on 1 May 2001 (see below, Relevant domestic law and practice) it was not possible to reopen criminal investigations whose discontinuation had been confirmed by a court.

On 5 October 2001 the applicant resubmitted his request and as a result on 28 February 2002 the Chief Prosecutor requested the Supreme Court of Cassation to reopen the criminal investigation. He argued that the decisions to discontinue it were overly formalistic and not sufficiently reasoned, and that the competent authorities had not properly assessed the evidence. In his view, this constituted grounds for reopening under Article 362 § 1 (5) in conjunction with Article 352 § 1 (2) of the CCP (see below, Relevant domestic law and practice).

In a judgment of 25 April 2002 (реш. № 254 от 25 април 2002 г., по н.д. 136/2002 г., ВКС, ІІ н.о.) the Supreme Court of Cassation rejected the Chief Prosecutor’s request as inadmissible. It noted that reopening had been possible prior to 1 May 2001. However, under the amendments to the CCP of that date prosecutors alone had competence to discontinue criminal proceedings. Their decisions were subject to appeal before the respective firstinstance courts, whose decisions were subject to appeal and then to appeal on points of law (see below, Relevant domestic law and practice). The counterpoise of these newly introduced possibilities to appeal had been the withdrawing of the possibility of setting aside the court’s decision by way of reopening. The Act for the amendment of the CCP contained no provisions allowing judicial decisions confirming discontinuations of criminal investigations under the old system to be reviewed in reopening proceedings.

No investigative steps were taken between 2002 and 2007 in the investigation against an “unknown perpetrator”.

Articles 128, 129 and 130 of the 1968 Criminal Code make it an offence to inflict bodily harm on another. Harm is classified as minor, intermediate or grievous by reference to medical criteria laid down in the second paragraphs of these Articles. Permanent blindness in one or both eyes constitutes grievous bodily harm (Article 128 § 2 of the Code). Inflicting grievous bodily harm is a publicly prosecutable offence in all cases (Article 161 of the Code).

Criminal proceedings for publicly prosecutable offences could be opened only by the decision of a prosecutor or an investigator (Article 192 §§ 1 and 2 of the CCP, as in force at the relevant time). They had to open an investigation whenever they received information, supported by sufficient evidence, that an offence might have been committed (Articles 186 to 190 of the CCP).

If the investigation authorities did not have enough evidence to institute criminal proceedings and no immediate investigative steps were required, they could carry out a preliminary inquiry (“предварителна проверка”) to determine whether the institution of criminal proceedings was warranted. The inquiry could be opened by the investigator or the police, who had to inform the competent prosecutor, or be ordered by the prosecutor (Article 191 § 1 of the CCP, as in force at the material time). The authorities carrying out the inquiry could search the crime scene and impound objects they found there if this was the only opportunity for preserving the evidence. The investigator had to inform the prosecutor about these actions forthwith (Article 191 § 2 of the CCP, as in force at the material time).

Evidence which was not gathered in the manner prescribed by the CCP was inadmissible (Article 85 § 2 of the CCP). According to the Supreme Court’s caselaw, this requirement meant that the results of investigative actions undertaken before the institution of criminal proceedings could be taken into account only if they had taken place in the course of a preliminary inquiry. It followed that the competent prosecutors had to be apprised promptly, so as to be able to exercise their supervisory powers. This was an essential prerequisite for the results of these actions to be taken into account in the ensuing criminal proceedings. The failure to inform the prosecutor had the effect of compromising these actions and the evidence obtained through them (реш. № 302 от 27 юли 1995 г. по н.д. № 169/ 1995 г., ВС, I н.о.).

Article 60 § 1 of the CCP provided that the victim of an offence who had suffered damage could bring a civil claim in the context of the criminal proceedings. Until June 2003 such a claim could be lodged even during the preliminary investigation (Article 60 § 1 of the CCP, as in force until June 2003). After that it could be made only after the case had proceeded to trial (Article 60 § 1 of the CCP, as in force after June 2003). The latter position was maintained under Article 84 § 1 of the 2005 Code of Criminal Procedure. Civil claimants are entitled to take part in the proceedings, acquaint themselves with the case file and make copies, adduce evidence, make requests and objections, and challenge the decisions which impinge on their rights and legitimate interests (Article 63 § 1 of the CCP and Article 87 § 1 of the 2005 Code).

The 2005 Code of Criminal Procedure gave the victims of offences certain rights which do not depend on their joining the proceedings as private prosecutors or civil claimants. Under Article 75 § 1 of this Code, they are entitled to be apprised of their procedural rights, be kept abreast of the progress of the proceedings, if they have so requested, and challenge the decisions to discontinue the proceedings.

By Article 237 § 1 (2) of the CCP, as in force until 30 April 2001, public prosecutors discontinued proceedings if they found that the charges had not been proven. Paragraphs 3 and 4 of that Article, as in force between 1 January 2000 and 30 April 2001, provided that after the discontinuation the prosecutor had to send the file and his decision to the immediately superior prosecutor’s office, which could confirm, modify or quash it. If it confirmed the decision it had to send the file to the appropriate court, which had to rule in private on the wellfoundedness or otherwise of the discontinuation (Article 237 §§ 5, 6 and 7 of the CCP, as in force at that time). Paragraph 9 of that Article provided that the court’s decision was not subject to appeal. No provision was made for the victim of the offence to be notified of the discontinuation.

Article 237 of the CCP was completely changed with effect from 1 May 2001 and henceforth provided that the prosecutor’s decision to discontinue the proceedings was to be served on the accused and the victim of the alleged offence. Either of them could then appeal against it to the respective firstinstance court within seven days. The court’s decision was in turn subject to appeal to the higher court within seven days of its delivery (Article 344 § 1 of the CCP, as in force between 1 May 2001 and May 2003, and Article 345 § 1 of the CCP). The higher court’s decision was then subject to appeal on points of law to the Supreme Court of Cassation, within fifteen days of its delivery (Article 349 § 5 of the CCP, as in force between 1 May 2001 and May 2003, and Article 353 of the CCP). In May 2003 the CCP was amended again, following which the firstinstance court’s decision was not subject to appeal.

Under the 2005 Code of Criminal Procedure, the decision of the firstinstance court to uphold the discontinuation of a criminal investigation by the prosecutor is served on the accused and the victim of the offence and is subject to appeal before the higher court, but the latter’s decision is not appealable on points of law (Article 243 §§ 3, 6 and 7 of that Code).

Article 359 of the CCP enumerated the judicial rulings which could be set aside by way of reopening. In its version between 1 January 2000 and 30 April 2001 the list included the decisions confirming the discontinuation of a criminal investigation by the prosecutor (see above). The amendment to the CCP which entered into force on 1 May 2001 (see above) removed those decisions from the list, with the result that decisions upholding the discontinuation of a criminal investigation made after its entry into force were not annullable by way of reopening. However, the amendment was silent on the issue whether such decisions made prior to its entry into force were likewise no longer capable of being set aside by way of reopening. The issue was settled in a couple of judgments given by the First and the Second Criminal Chambers of the Supreme Court of Cassation in April 2002: the judgment in the applicant’s case and a judgment delivered three days earlier, on 22 April 2002 (реш. № 168 от 22 април 2002 г. по н.д. № 34/2002 г., ВКС, I н.о.). In both of them the court, after analysing in some detail the amendment’s overall scheme, ruled, against the views of the Chief Prosecutor, that decisions made prior to the entry of the amendment into force – 1 May 2001 – could not be set aside by way of reopening. A majority of the First Criminal Chamber of the court confirmed this approach in a decision of 14 March 2003 (опр. № 550 от 14 март 2003 г. по н.д. № 273/2002 г., ВКС, I н.о.), against the dissent of the presiding judge, who was of the view that reopening was still available in respect of decisions made before 1 May 2001.

Article 419 § 1 of the 2005 Code of Criminal Procedure provides that judicial decisions upholding the discontinuation of a criminal investigation by the prosecutor are capable of being set aside by way of reopening.

Requests for reopening are examined by the Supreme Court of Cassation (Article 363 of the CCP and Article 424 § 1 of the 2005 Code of Criminal Procedure). Requests based on material breaches of the substantive or the procedural law (Article 362 § 1 (5) in conjunction with Article 352 § 1 (1) and (2) of the CCP, superseded by Article 422 § 1 (5) in conjunction with Article 348 § 1 (1) and (2) of the 2005 Code of Criminal Procedure), can be made only by the Chief Prosecutor (Article 361 § 1 in fine of the CCP).


CASE OF IGLESIAS GIL AND A.U.I. v. SPAIN

Violation of Art. 8;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings

The first applicant, María Iglesias Gil, was born in 1961 and lives in Vigo. She is the mother of the second applicant, A.U.I., who was born in 1995.

On 8 September 1989 the first applicant married A.U.A. On 3 June 1994 the couple divorced. Their son A.U.I. was born on 7 December 1995 and A.U.A. acknowledged paternity. In a decision of 20 December 1996, the Vigo Family Court awarded the first applicant custody of A.U.I., and the father access. On 1 February 1997 A.U.A. abducted his son during an access visit and left Spain with him. After passing through France and Belgium, he travelled with the child by air to the United States.

The first applicant lodged a criminal complaint with Vigo investigating judge no. 5 alleging child abduction and applied to be joined to the proceedings as a civil party. On 4 February 1997 the investigating judge made orders for a nationwide search to be made for A.U.A. and for the child’s immediate return to its mother. Subsequently, the first applicant also made criminal complaints against various members of A.U.A.’s family who, she said, had assisted in her son’s abduction.

During the investigation, the first applicant requested Vigo investigating judge no. 5 to monitor calls on A.U.A.’s mobile telephone and to interview members of A.U.A.’s family. In a decision of 19 February 1997, the investigating judge turned down both requests, the former on the ground that there was no evidence that the mobile telephone number that had been given was A.U.A.’s and the latter because the first applicant had not given precise details of the questions she wished to be put to her former husband’s relatives. The first applicant also asked the investigating judge for a search to be carried out at the registered office of a company belonging to A.U.A. that was responsible for administering his property in his absence, and for the examination of a vehicle he had used to leave Spain. The judge again refused.

The first applicant asked the judge to issue an international search and arrest warrant against A.U.A., but in an order of 29 May 1997, he declined, stating:

As regards the international search and arrest warrant, the offences of coercion and extortion have not been made out. It is debatable whether there has been an offence of criminal contempt, since it has not been proved that the person concerned was ordered to comply with the judgment of the family court and warned that he was liable to commit this offence. In addition, since this offence (Article 556 of the Criminal Code) only carries a prison sentence of between six months and one year, an international search and arrest warrant is not justified, [especially] as the conduct complained of appears to come within Article 622 of the Criminal Code, which characterises it as a minor offence.

Furthermore, it should be noted that the requested procedural steps are neither lawful, nor adapted to the aim pursued, and must therefore be refused pursuant to Article 311 of the Code of Criminal Procedure.”

In a decision of 5 June 1997, investigating judge no. 5 turned down further requests by the first applicant for investigative steps to be taken as a result of her former husband’s contempt and failure to comply with the judgment of the family court on the following grounds:

Investigative steps are taken in order to establish whether an offence has been committed. The investigation is brought to an end by a judicial decision, not at the request of a party (Article 785 Code of Criminal Procedure).

The inquiries made to date do not prove that A.U.A. failed to return his son to his mother at the end of the period for which he was entitled to have him to stay.

A wanted notice has been issued for A.U.A. nationally. As soon as he has been traced, final provision 19 of Institutional Law no. 1/1996 of 15 January 1996 on the legal protection of minors can be applied.”

In an order of 25 May 1998, the investigating judge also examined whether a person could be prosecuted for the abduction of a minor for whom he had joint parental responsibility. He found that this was not possible under the case-law, as the only offences that could be committed in such circumstances were criminal contempt and extortion. In a further order dated 1 July 1998 the investigating judge reiterated that no international search and arrest warrant could be issued for the suspected offence of criminal contempt, for the following reasons:

“... As regards an international search and arrest warrant against A.U.A., this issue was resolved by the Pontevedra Audiencia in its decision of 23 September 1997. No new facts have emerged since then that would justify reclassifying the offence. Under no circumstances can it amount to ‘false imprisonment’, as the judgment of 5 July 1993 on the abduction of minors makes clear. In that judgment, the court held: ‘The fact that a father has taken his minor child with him solely in order to enjoy its company cannot amount to the offence of child abduction’ ...

Lastly, as to the suspected offence of criminal contempt, no international search and arrest warrant can be issued as it is not an offence that comes within the extradition treaties. Consequently, Interpol would not act on such a warrant, as it would not be valid in law.”

An appeal by the first applicant was dismissed by the Pontevedra Audiencia Provincial on 17 November 1998.

The first applicant sought amparo relief under Articles 24 (right to a fair hearing), 15 (right to life and mental and physical integrity) and 17 (right to liberty and security) of the Constitution, and the United Nations Convention on the Rights of the Child of 1989. In a decision of 2 June 1999, the Constitutional Court dismissed her appeal as manifestly ill-founded, holding that she had not stated why she disagreed with the reasoned decisions of the lower courts.

At the end of the investigation, on 3 July 1998, Vigo investigating judge no. 5 issued a provisional discharge order dismissing the charges against A.U.A. However, he renewed the orders for a nationwide search for A.U.A. and the order freezing his assets. He also made a final order dismissing the charges against the members of A.U.A.’s family who had been implicated by the first applicant. The reason given by the judge for making the provisional discharge order in respect of A.U.A. was that the latter’s absence from Spain had prevented his being questioned or formally charged in accordance with Article 791 § 4 of the Code of Criminal Procedure. An appeal by the first applicant was dismissed by the Pontevedra Audiencia Provincial on 9 November 1998.

The first applicant lodged an amparo appeal against those decisions with the Constitutional Court, in which she alleged violations of Article 17 (right to liberty and security), taken together with Articles 18 (rights to private life and family privacy), 24 (right to a fair hearing) and 39 (social, economic and legal protection of the family and children) of the Constitution. She also relied on Articles 5 and 8 of the Convention. In her appeal, she complained in particular of the investigating judge’s systematic refusal to issue an international search warrant for her child, a refusal which, she said, was in breach of the positive duty to protect children and families. She also alleged a violation of Article 11 § 1 of the Convention on the Rights of the Child of 1989, which requires States to take measures to combat the illicit transfer and non-return of children abroad. In her submission, by refusing to take any investigative steps, the investigating judge had directly infringed both her and her son’s right to private and family life, and her right to judicial protection, as guaranteed by Article 24 the Constitution and Article 6 of the Convention.

In a decision of 17 June 1999, the Constitutional Court dismissed the amparo appeal as unfounded, holding that the first applicant had confined herself to contesting the decisions of the criminal courts which, in reasoned and well-founded decisions, had decided to make a provisional discharge order in respect of her criminal complaint of child abduction, while renewing certain preventive measures.

In connection with an appeal by the first applicant to the Pontevedra Audiencia Provincial against one of his decisions, investigating judge no. 5 said in a report to the Audiencia Provincial on 5 September 1997:

“... The purpose of criminal proceedings is to prosecute the offence and, if appropriate, to punish the perpetrators. However, an investigating judge cannot, under any circumstances, allow himself to be manipulated by a woman driven by jealousy or hatred against her former husband’s family and take a series of procedural measures that serve no purpose other than to inconvenience third parties uninvolved in the proceedings. In the present case, all that has been proved so far is that A.U.A. did not return his son A.U.I. to his mother at the end of the period he was allowed by the family court.”

An application for an order requiring investigating judge no. 5 to stand down was dismissed in a decision of 20 November 1997. In a decision of 22 February 1999, an application for the proceedings to be declared null and void was likewise dismissed.

In a judgment of 12 February 1999, the Vigo Family Court withdrew parental responsibility from A.U.A. and awarded the first applicant full parental responsibility. It gave the following reasons for its decision:

“... Having considered the evidence, the Court has decided to grant the applicant’s application. ... the case file shows that, after continually failing to comply with the access arrangements (see this Court’s decision of 20 December 1996), the respondent did not return the child to its mother at the end of the period stipulated in the decision of 20 December 1996. Furthermore, since 1 February 1997, the whereabouts of both father and child have been unknown, which means that the child has been removed from the applicant’s custody in breach of a court order. Such conduct can only be described as very serious, as it has entailed the cruel and abrupt removal of the child from the family background in which it was being happily brought up, thereby depriving it both now and then of its mother’s love and protection ... at the most tender of ages, with the serious harm which that entails ... Thus, by putting his own interests before those of his child, [A.U.A.] has acted in a manner that is seriously detrimental to the child’s welfare ...”

According to a psychologist’s report produced by the first applicant in April 2000, A.U.A. first made contact with her through a telephone call in which he imposed various conditions for the child’s return, threatened her and used the prospect of her not seeing her son again as blackmail. On 12 June 2000 the first applicant lodged a criminal complaint against A.U.A. alleging threatening behaviour and coercion. On 30 September 2000 Vigo investigating judge no. 6 made a provisional discharge order. On an appeal by the first applicant, that order was quashed by the Pontevedra Audiencia Provincial in a decision of 15 May 2001.

On 18 April 2000 the first applicant saw her son for the first time since his abduction in February 1997. On 12 May 2000 A.U.A. voluntarily appeared before the investigating judge, who, after hearing his representations, decided not to order his detention pending trial. Finally, on 18 June 2000 the first applicant was able to recover her child with police assistance on A.U.A.’s return to Vigo with the child. She said that for a time she was forced to go into hiding with her son in a shelter for women.

On 14 July 2000 the Family Court granted A.U.A. access. As he was prevented from exercising that right, A.U.A. lodged a criminal complaint with the Vigo investigating judge against the first applicant and her parents alleging aggravated contempt.

The relevant provisions of the Constitution read as follows:

“Provisions relating to the fundamental rights and the freedoms recognised by the Constitution shall be construed in accordance with the Universal Declaration of Human Rights and international treaties and agreements on human rights that have been ratified by Spain.”

“1. Everyone’s right to honour and to private and family life ... shall be protected.

“1. Everyone shall have the right to effective protection by the judges and courts in the exercise of his or her rights and legitimate interests; in no circumstances may there be any denial of defence rights.

“Children shall enjoy the protection provided for in the international agreements safeguarding their rights.”

“Once officially published in Spain, international treaties that have been validly concluded shall be part of the domestic legal order. ...”

The relevant provisions of the Convention on the Rights of the Child [Spain ratified this instrument on 6 December 1990. The United States signed it on 16 February 1995, but have not yet ratified it] provide as follows:

“1. States Parties shall take measures to combat the illicit transfer and non-return of children abroad.

To this end, States Parties shall promote the conclusion of bilateral or multilateral agreements or accession to existing agreements.”

The relevant provisions of this convention [Spain ratified this instrument on 16 June 1987 and the United States on 29 April 1988] provide as follows:

“The objects of the present Convention are:

(a) to secure the prompt return of children wrongfully removed to or retained in any Contracting State; and

(b) to ensure that rights of custody and of access under the law of one Contracting State are effectively respected in the other Contracting States.”

“Contracting States shall take all appropriate measures to secure within their territories the implementation of the objects of the Convention. For this purpose they shall use the most expeditious procedures available.”

“The removal or the retention of a child is to be considered wrongful where:

(a) it is in breach of rights of custody attributed to a person, an institution or any other body, either jointly or alone, under the law of the State in which the child was habitually resident immediately before the removal or retention; and

(b) at the time of removal or retention those rights were actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention.

The rights of custody mentioned in sub-paragraph (a) above may arise in particular by operation of law or by reason of a judicial or administrative decision, or by reason of an agreement having legal effect under the law of that State.”

“A Contracting State shall designate a Central Authority to discharge the duties which are imposed by the Convention upon such authorities.

“Central Authorities shall cooperate with each other and promote cooperation amongst the competent authorities in their respective States to secure the prompt return of children and to achieve the other objects of this Convention.

In particular, either directly or through any intermediary, they shall take all appropriate measures:

(a) to discover the whereabouts of a child who has been wrongfully removed or retained;

(b) to prevent further harm to the child or prejudice to interested parties by taking or causing to be taken provisional measures;

(c) to secure the voluntary return of the child or to bring about an amicable resolution of the issues;

(d) to exchange, where desirable, information relating to the social background of the child;

(e) to provide information of a general character as to the law of their State in connection with the application of the Convention;

(f) to initiate or facilitate the institution of judicial or administrative proceedings with a view to obtaining the return of the child and, in a proper case, to make arrangements for organising or securing the effective exercise of rights of access;

(g) where the circumstances so require, to provide or facilitate the provision of legal aid and advice, including the participation of legal counsel and advisers;

(h) to provide such administrative arrangements as may be necessary and appropriate to secure the safe return of the child;

(i) to keep each other informed with respect to the operation of this Convention and, as far as possible, to eliminate any obstacles to its application.”

“Any person, institution or other body claiming that a child has been removed or retained in breach of custody rights may apply either to the Central Authority of the child’s habitual residence or to the Central Authority of any other Contracting State for assistance in securing the return of the child.

“The judicial or administrative authorities of Contracting States shall act expeditiously in proceedings for the return of children.

If the judicial or administrative authority concerned has not reached a decision within six weeks from the date of commencement of the proceedings, the applicant or the Central Authority of the requested State, on its own initiative or if asked by the Central Authority of the requesting State, shall have the right to request a statement of the reasons for the delay. ...”

“Where a child has been wrongfully removed or retained in terms of Article 3 and, at the date of the commencement of the proceedings before the judicial or administrative authority of the Contracting State where the child is, a period of less than one year has elapsed from the date of the wrongful removal or retention, the authority concerned shall order the return of the child forthwith.

The judicial or administrative authority, even where the proceedings have been commenced after the expiration of the period of one year referred to in the preceding paragraph, shall also order the return of the child, unless it is demonstrated that the child is now settled in its new environment.

Where the judicial or administrative authority in the requested State has reason to believe that the child has been taken to another State, it may stay the proceedings or dismiss the application for the return of the child.”

“Notwithstanding the provisions of the preceding Article, the judicial or administrative authority of the requested State is not bound to order the return of the child if the person, institution or other body which opposes its return establishes that:

(a) the person, institution or other body having the care of the person of the child was not actually exercising the custody rights at the time of removal or retention, or had consented to or subsequently acquiesced in the removal or retention; or

(b) there is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation.

The judicial or administrative authority may also refuse to order the return of the child if it finds that the child objects to being returned and has attained an age and degree of maturity at which it is appropriate to take account of its views.

In considering the circumstances referred to in this Article, the judicial and administrative authorities shall take into account the information relating to the social background of the child provided by the Central Authority or other competent authority of the child’s habitual residence.”

The relevant provisions of this Law provide:

“Minors shall enjoy the rights afforded them by the Constitution and international treaties ratified by Spain, in particular, the United Nations Convention on the Rights of the Child, and the other rights guaranteed by domestic legislation ...

This law, its implementing provisions and other statutory provisions concerning minors shall be construed in accordance with the international treaties ratified by Spain and, in particular, the Convention on the Rights of the Child of 20 November 1989.

The public authorities shall guarantee compliance with the rights of minors and shall ensure their decisions comply with this law and the aforementioned international instrument.”

Pursuant to final provision 13 of the aforementioned Law on the legal protection of minors, a second paragraph was added to Article 216 of the Civil Code, which provides as follows:

“The functions of guardianship constitute a duty. They shall be performed for the benefit of the person for whom the guardian has been appointed and subject to the protection of the judicial authorities.

The measures and action contemplated by Article 158 of this Code may also be ordered by the court, on its own initiative or on the application of any interested party, in all cases of de facto or de jure guardianship or custody of minors, ... if their interest so requires.”

Article 158 of the Civil Code provides as follows:

“The court shall, on its own initiative, or on an application by the child, a parent or the public prosecutor, order the following measures:

(2) appropriate action on a transfer of custody to avoid the unsettling the child in a way that is harmful;

(3) in general, any other action it considers expedient to remove the child from danger or prevent it coming to harm.

All such measures may be ordered in any civil or criminal proceedings ...”

The provisions read as follows:

“Responsibility for dependent minors shall be vested in their mother and father.

Parental responsibility shall always be exercised in the child’s interest and in accordance with its personality; it shall include the following powers and duties:

(1) to provide the child with protection, company, food, an upbringing and proper guidance;

(2) to represent the child and administer its property;

Parents may seek judicial assistance when exercising their parental responsibility. ...”

“Parents in whom parental responsibility is vested shall represent their dependent minor children in legal matters.

In general, the Spanish courts have refused to characterise a failure by a person with parental responsibility for a minor to return the child as false imprisonment or kidnapping, offences under Articles 163 to 165 of the Criminal Code carrying between four and ten years’ imprisonment. Under the case-law, a person guilty of such conduct may only be prosecuted for criminal contempt or extortion under Article 556 of the Criminal Code, for which the punishment is six months’ to one year’s imprisonment.

Institutional Law no. 9/2002 of 10 December 2002 amended the provisions of the Criminal and Civil Codes dealing with the abduction of minors.

As regards the position under the criminal law, the explanatory memorandum to the Law indicated that a clearly worded provision, creating a separate offence from the generic offence of criminal contempt, had become necessary when the person guilty of removing or failing to return the minor was one of the parents and custody of the minor had been lawfully granted to the other parent or to another person or institution in the child’s interest.

The Law inserted a new Article 225 bis in the Criminal Code, worded as follows:

“1. A parent who, without any justification, abducts his or her minor child shall be liable on conviction to between two and four years’ imprisonment and shall forfeit his or her parental responsibility for between four and ten years.

For the purposes of this Article, the following acts shall be deemed to constitute abduction:

(i) transferring a minor from his place of residence without the consent of the parent with whom he or she habitually resides or the persons to whom or institutions to which custody of the minor has been granted;

(ii) failing to return a minor in material breach of an obligation arising under a judicial or administrative decision.

If the minor is removed from Spain or a condition is imposed for its return, the sentence shall be in the upper half of the range set out in paragraph 1.

The penalties stated in this Article shall also apply to any person from whom the minor is descended or any relative of the parent by blood or marriage up to the second degree who has committed the aforementioned acts.”


Violation of Art. 10;Pecuniary damage - financial award;Costs and expenses partial award

On 9 September 1993 the Bielsko-Biała Regional Court dismissed the applicant's request for registration of the title of a periodical, The Social and Political Monthly – A European Moral Tribunal (Miesięcznik społeczno-polityczny, europejski sąd moralny) to be published in Kęty. The court considered that in accordance with the Press Act and the Ordinance of the Minister of Justice on the registration of periodicals, the name of a periodical should be relevant to its contents. The name as proposed by the applicant would suggest that a European institution had been established in Kęty, which was untrue and would be misleading to prospective buyers. Moreover, the proposed title would be disproportionate to the periodical's actual importance and readership as it was hardly conceivable that a periodical of a European dimension could be published in Kęty. The court went on to state:

“... the applicant stubbornly applies for registration of periodicals the titles of which would suggest the existence in Kęty of an institution of international character (such as the European Moral Tribunal or the World Tribunal of Morality), and when requested by the court to change the titles he declares that he will not do so.”

On 17 December 1993 the Katowice Court of Appeal dismissed an appeal by the applicant against this decision. The court stated, inter alia, that in the proceedings before the first-instance court the applicant had been requested to change the proposed title by deleting the term “European Moral Tribunal”, but he had refused to do so.

Subsequently, the applicant made a number of further applications for the registration of periodicals. He succeeded in obtaining four registrations.

On 6 May 1994 the Minister of Justice refused to grant leave for an extraordinary appeal against the decision of 17 December 1993, finding that it was in accordance with the law.

On 17 February 1994 the Bielsko-Biała Regional Court dismissed a new request by the applicant for registration of a periodical, Germany – A thousand-year-old enemy of Poland. The court noted that at a hearing on 17 February 1994 the applicant, when requested to change the proposed title so as to remove its negative character, had refused to do so. The court considered that registration of the periodical with the proposed title would be harmful to Polish-German reconciliation and detrimental to good cross-border relations.

The applicant appealed against this decision, submitting that it was incomprehensible and amounted to censorship.

On 12 April 1994 the Katowice Court of Appeal upheld the contested decision. The court observed that the title, as proposed by the applicant, suggested that the proposed periodical would concentrate unduly on negative aspects of Polish-German relations. The court considered that such a title would be in conflict with reality in that it would give an unbalanced picture of the relevant facts. The court further considered that the lower court had been justified in refusing registration on the ground that the title would be detrimental to Polish-German reconciliation and to good relations between Poland and Germany.

Section 20 of the Press Act of 26 January 1984 requires registration of a press title by the regional court as a prerequisite for publication of a periodical. A request for registration should contain the proposed title, the editor's address, the name of the editor-in-chief and other personal data, the name and address of the publishing house and information on how often the periodical would be published. The decision on registration is to be taken within thirty days of the date on which the request has been filed with the court. The court must refuse registration if the request does not contain the required information or if the proposed title would prejudice a right to protection of the title of any existing periodical. Section 45 of the Press Act provides that a person who publishes a periodical without the required registration is liable to a fine.

Section 23(a) of the Press Act authorises the Minister of Justice to issue an ordinance specifying the manner in which the press register should be run.

Section 5 of the Ordinance of the Minister of Justice on the registration of periodicals, as applicable at the material time, provided that registration was not possible if it would be “inconsistent with the regulations in force and with the real state of affairs” (“niezgodny z przepisami prawa lub z istniejącym stanem rzecz”).

On 1 November 1997 the ordinance was amended in that section 5 was deleted.


Violation of Art. 3 (substantive aspect);Violation of Art. 5-1;Violation of Art. 5-3;Violation of Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - award

Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Rait Maruste;Volodymyr Butkevych;Zdravka Kalaydjieva

The applicant was born in 1966 and lives in Kyiv.

The applicant is a former vice-president of the Khlib Ukrainy Company (ДАК Хліб України), a State-owned company trading in grain.

On 11 January 2000 the General Prosecutor’s Office (the “GPO”) opened a criminal investigation in respect of the applicant and another employee of Khlib Ukrainy on charges of aggravated embezzlement of public funds by means of fraudulent transactions for the amount of approximately 44,000 euros (EUR) via the private company Ukrzovnishtorg (“the Ukrzovnishtorg case”). The applicant was also accused of producing a copy of a forged university degree certificate when applying in 1996 for a position in the civil service.

The applicant was arrested on 17 January 2000.

On 19 January 2000 the investigator appointed to deal with his case formally charged the applicant with aggravated embezzlement of public funds and forgery.

On 20 January 2000 the Deputy Prosecutor General ordered the applicant’s detention on remand for two months on the grounds that the charges were serious and that the applicant might abscond and pervert the course of justice. The applicant appealed against his detention to the Pechersky District Court of Kyiv (“the Pechersky Court”).

On 14 March 2000 the GPO extended the applicant’s detention to five months.

On 15 March 2000 the GPO opened two more criminal cases against the applicant for aggravated embezzlement of public funds by means of fraudulent transactions via the Internova Trading Company and the Anmikh-Rossiya Company (respectively “the Internova case” and “the Anmikh case”). These cases were joined to the Ukrzovnishtorg case.

On 27 March 2000 the Pechersky Court, on the applicant’s appeal, revoked the detention order of 20 January 2000. The court found that there was no evidence that the applicant would abscond or pervert the course of justice if released. In particular, the applicant had his permanent residence in Ukraine and financially supported his wife and a child living in Kyiv. He had never failed to respond to a summons or attempted to obstruct the investigation. Moreover, the court found that, when ordering the applicant’s detention, the prosecution had not taken into account the fact that the applicant suffered from a number of serious illnesses.

On the same day, without releasing him from the Kyiv SIZO, the investigator placed him under arrest again, this time on suspicion of involvement in the Internova case. The Deputy General Prosecutor, on that same date, ordered the applicant’s detention on remand for a period of two months on the ground that he was suspected of a serious offence and that he might abscond or pervert the course of justice.

On 28 March 2000 the applicant was officially charged with embezzlement of public funds in the Internova case.

On 30 March 2000 the Deputy Prosecutor General lodged a request for supervisory review (protest) with the Kyiv City Court against the Pechersky Court’s decision of 27 March 2000.

On 10 April 2000 the Presidium of the Kyiv City Court quashed the Pechersky Court’s decision of 27 March 2000 and upheld the detention order of 20 January 2000. It found that the applicant’s wife and two children lived in Estonia. In Ukraine the applicant lived with his partner and their son in Kyiv whilst being registered in Dnipropetrovs’k. He had two registered addresses (in Ukraine and Estonia), three international passports (one Russian and two Ukrainian: ordinary and official) and had an account with an Estonian bank, and was therefore likely to abscond if released. Moreover, the Kyiv City Court held that the first-instance court had overlooked the fact that the applicant in his appeal had requested the “replacement of the preventive measure” rather than the “annulment of the detention order” and, therefore, this appeal fell outside the scope of judicial review at the investigation stage.

On 29 May and 29 August 2000 the GPO prolonged the applicant’s pre-trial detention respectively to eight months and eleven months.

On 27 October 2000 the investigator, with a view to preventing any communication between the applicant and his co-accused, ordered the applicant’s transfer from the Kyiv SIZO to the Zhytomyr Regional Pre-trial Detention Centre no. 8 (Житомирський обласний слідчий ізолятор № 8“the Zhytomyr SIZO”) for the period from 30 October to 30 November 2000.

The applicant was transferred to the Zhytomyr SIZO on 1 November 2000.

On 27 November 2000 the GPO prolonged the applicant’s detention to twelve months.

On 14 December 2000 the investigator ordered the applicant’s transfer back to the Kyiv SIZO.

Meanwhile, on an undetermined date in December 2000, the applicant’s lawyer appealed against the prosecutor’s detention orders of 20 January 2000 and 27 March 2000.

On 27 December 2000 the appeal was examined by the Pechersky Court in the presence of the prosecutor and the applicant’s lawyer. The court held that, although the domestic law allowed the detention of a defendant charged with aggravated embezzlement of public funds on the sole basis of the gravity of the charges, the other grounds provided for by the law should also be taken into account. The Pechersky Court found, in particular, that there was no compelling evidence that if released the applicant would abscond or pervert the course of justice. The applicant had permanent residence in Ukraine and could not lawfully leave it since his international passport had expired. The applicant lived with his wife and two children in Ukraine. He also financially supported his father and mother-in-law, who lived in Ukraine. Moreover, the applicant suffered from serious health problems. The Pechersky Court considered the medical experts’ report produced by the prosecution, to the effect that the applicant was fit for detention in the remand facilities, unreliable in the light of the fact that during his detention in the Zhytomyr SIZO the applicant had not been administered any of the drugs prescribed for him. On the basis of the above findings the Pechersky Court quashed the detention orders of 20 January 2000 and 27 March 2000. On the same day the Deputy Prosecutor General lodged a request for supervisory review against this decision.

On 28 December 2000 the applicant, while still detained in the Kyiv SIZO, was arrested by the investigator on suspicion of involvement in the Anmikh case. On the same day the applicant was officially charged with the said offence.

On 5 January 2001 the GPO extended the applicant’s pre-trial detention to fifteen months.

On 15 January 2001 the Presidium of the Kyiv City Court, following the prosecution’s request for supervisory review, quashed the Pechersky Court’s decision of 27 December 2000, citing essentially the same arguments as in its decision of 10 April 2000. The court also stated that there was no reason why the applicant could not be detained on the sole basis of the gravity of the charges, as provided for by Article 155 of the CCP.

On 5 April 2001 the GPO extended the applicant’s detention up to eighteen months.

On 31 May 2001 the GPO instituted another criminal case against the applicant and Mr L. respectively for giving and taking bribes. This case was joined to the criminal case against the applicant.

On 18 June 2001 the applicant and his lawyer were granted access to the 120-volume case file. The applicant, however, refused to study the case file, alleging that the relevant formalities had not been completed. On the same day the investigator rejected this complaint as unsubstantiated.

On 16 July 2001 the prosecution lodged the bill of indictment with the Kyiv City Court of Appeal (the former Kyiv City Court).

On an unknown date the applicant requested and was granted access to the case file, a right which he and his lawyer exercised from 20 July to 26 September 2001.

On an unknown date in September 2001 the Kyiv City Court of Appeal referred the applicant’s case file to the Radyansky District Court of Kyiv for examination.

On 11 October 2001 the Deputy Prosecutor General decided that only the Ukrzovnishtorg case was ready for trial and withdrew the remainder of the charges because they required further pre-trial investigation.

On 12 October 2001 an amended bill of indictment was lodged with the Svyatoshynsky District Court (“the Svyatoshynsky Court”).

On 1 November 2001 a preparatory hearing was held before a judge of the Svyatoshynsky Court. The judge considered that the case was ready for trial and decided that the applicant was to remain in detention on remand. The applicant’s request for release was rejected on the ground that, although he had already spent a total of 21 months in detention, the period of his detention during the investigation had not exceeded 18 months and thus was in compliance with Article 156 of the CCP. The judge considered that the applicant’s transfer to the Zhytomyr SIZO was necessary for the proper conduct of the investigation and that there was no indication of ill-treatment. He concluded that there were no medical or other special circumstances warranting the applicant’s release.

The proceedings before the trial court started on 26 November 2001.

At a hearing on 18 January 2002 the Svyatoshynsky Court dismissed the applicant’s request for release, stating that there were no new circumstances warranting a re-evaluation of the preventive measure imposed. The court also granted the prosecution’s motion to adjourn the hearing until 1 February 2002 to allow the new prosecutor to familiarise himself with the case file.

On 1 February 2002 the Svyatoshynsky Court of its own motion decided that further pre-trial investigation was necessary. The court also ordered the applicant’s release on an undertaking not to abscond.

On 2 February 2002 the applicant tried to leave Ukraine for Russia by train but was stopped on the border and sent back to Kyiv.

On an unspecified date the prosecution appealed against the remittal of the case for further investigation, considering that it was ready for examination on the merits. The applicant also challenged the remittal, stating that it was motivated by the court’s reluctance to acquit him. On 18 April 2002 the Kyiv City Court of Appeal granted the appeals, quashed the decision of 1 February 2002 and ordered that the trial proceedings in the applicant’s case be resumed.

The hearings before the Svyatoshynsky Court resumed on 30 April 2002. On 14 August 2002 the trial court ordered that by 19 September 2002 the GPO was to carry out additional enquiries in order to collect further evidence. However, it was not until 24 December 2002 that the authorities produced the requested evidence in court and the trial could resume.

On 11 February 2003 the Svyatoshynsky Court acquitted the applicant of the charges brought against him. The prosecution appealed. On 28 June 2003 the Kyiv City Court of Appeal upheld the applicant’s acquittal.

On 13 July 2004 the Supreme Court, following the appeal of the GPO, reversed the decisions of the lower courts and remitted the case for further investigation.

The case file was received by the GPO on an unknown date in October 2004. On 28 October 2004 the investigator amended the applicant’s charges in accordance with the new 2001 Criminal Code. On the same day the applicant was summoned to give evidence but failed to appear. Since then, according to the Government’s submissions, the GPO has carried out a number of forensic examinations, questioned witnesses and seized documentary evidence. Further documents have been requested and received from Swiss authorities.

On an unknown date the applicant made use of the recent amendments to the CCP by challenging the initial decision of the GPO of 11 January 2000 to institute criminal proceedings against him. On 24 November 2005 the Pechersky Court allowed this application and revoked the impugned decision. The prosecution appealed.

On 2 February 2006 the Kyiv City Court of Appeal reversed the Pechersky Court’s decision and rejected the applicant’s application.

On 29 March and 22 June 2007 the applicant requested the investigator for termination of the criminal proceedings as time-barred. In reply the investigator informed the applicant that his requests would be examined and the decision would be adopted in accordance with the relevant law.

On 13 May 2008 the applicant was charged with abuse of power and forgery and ordered not to leave his place of residence.

The investigation in the applicant’s case is still pending.

On 18 July 2001 the applicant’s lawyer, referring to Article 29 § 1 of the Constitution, filed an administrative complaint about the inactivity of the administration of the Kyiv SIZO, namely for their failure to release the applicant after 17 July 2001, when the overall term of his detention had reached eighteen months. On 20 August 2001 the Shevchenkivsky District Court of Kyiv refused to entertain this complaint on the ground that the lawyer’s authority to act issued by the applicant was limited to the criminal proceedings before the Kyiv Court of Appeal. This decision was not appealed against by the applicant.

The applicant’s similar administrative complaint against the GPO was declared inadmissible on 26 October 2001 by the Pechersky Court on the ground that such complaints fell to be examined in the criminal proceedings which at that time were pending before the Radyansky Court.

After the applicant’s arrest in January 2000 his health started to deteriorate. According to the Pechersky Court’s decision of 27 March 2000 the applicant started to receive medical treatment in the Kyiv SIZO for his illnesses as early as March 2000.

On 15 June 2000, in response to the applicant’s numerous requests, the investigator dealing with his case ordered that a forensic medical report on the applicant’s state of health be obtained. In its report no. 83 of 16 June 2000, a commission of the Kyiv City Bureau of Forensic Medical Examinations (Київське міське бюро судово-медичних експертиз) stated that the applicant suffered from a post-traumatic encephalopathy, duodenal ulcer with reflux and heart pathology. The applicant was prescribed a diet and heart drugs. In conclusion the experts suggested that the applicant’s encephalopathy be examined in a specialised neurological institution.

On 29 August 2000 an expert commission of the Kyiv City Centre of Forensic Psychiatric Examinations (Київський центр судово-психіатричних експертиз), with the participation of a neuropathologist from the district hospital, drew up a forensic report (no. 957) at the request of the investigator. The commission found that the applicant suffered from post-traumatic encephalopathy (after a head injury suffered at the age of fifteen). According to the applicant this disease caused him severe headaches and hand tremor. The applicant was prescribed the relevant drugs. He was found fit for detention on remand subject to the prescribed treatment.

On 1 November 2000 the applicant was transferred to the Zhytomyr SIZO.

On 20 December 2000 the applicant’s lawyer asked the Governor of the Zhytomyr SIZO whether they had provided the applicant with the medicines prescribed for him.

On 25 December 2000 the Governor of the Zhytomyr SIZO issued a letter, stating that on his admission the applicant had been examined by the prison doctors, who had diagnosed him as suffering from encephalopathy. Subsequently he had been examined by the cardiologist who confirmed the above heart pathology diagnosis of the Kyiv experts. The Governor stated that, although the content of the above medical experts’ reports had been made known to the prison authorities, the drugs prescribed in those reports were not in the possession of the Zhytomyr SIZO and thus could not be administered to the applicant.

On 11 January 2001, after the applicant’s transfer from the Kyiv ITU, he was examined by a doctor from the medical department of the Kyiv SIZO, who found that he suffered from headaches, heart and stomach pains. The applicant was prescribed fifteen drugs, including those specified in the experts’ reports.

The relevant domestic law is summarised in the judgment of Nevmerzhitsky v. Ukraine (no. 54825/00, §§ 53-56, ECHR 2005II).


Preliminary objection dismissed (exhaustion);Violation of Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses award - domestic proceedings;Costs and expenses award - Convention proceedings

The applicant was born in 1953 and lives in Istanbul.

The applicant was a civil servant at the Istanbul Municipality.

On 22 December 1994 he was arrested by police officers from the Istanbul Security Directorate on suspicion of forgery. He admitted to the charges before the police.

On 26 December 1994 the applicant was brought before the investigating judge at the Istanbul Magistrate’s Court, who ordered his detention on remand.

On 2 January 1995 the public prosecutor filed an indictment with the Istanbul 7th Criminal Court against the applicant and three co-accused (O.I., M.T. and N.S.), requesting that they be punished for committing forgery under Articles 503 § 1 and 522 of the Criminal Code. The public prosecutor further decided that the Law on the Prosecution of Civil Servants (Memurin Muhakemeti Kanunu) did not apply to this case as the offence was ordinary.

On 24 January 1995 the 7th Criminal Court commenced the proceedings. On 3 February 1995 it heard statements from the applicant and two other co-defendants. The applicant denied the charges against him, alleging that his statement in the police station had been extracted from him under duress. At the following hearing on 24 February 1995, the court released the applicant and two co-accused from detention on remand. It further decided to prolong, in absentia, the arrest warrant issued in respect of O.I. as he had absconded.

On 10 March 1995 the Istanbul public prosecutor launched an investigation concerning the applicant’s alleged abuse of office in relation to the forgery. During the course of the investigation, the public prosecutor decided that he had no jurisdiction over the case as the applicant was a civil servant. Accordingly, he sent the file to the Istanbul Provincial Administrative Council (İstanbul İl İdare Kurulu), pursuant to the provisions of the Law on the Prosecution of Civil Servants, in order to seek authorisation to prosecute the applicant.

On 7 December 1995 the Provincial Administrative Council decided not to authorise the applicant’s prosecution.

On 20 January 1998 the Supreme Administrative Court put aside this decision and ordered that the applicant be tried. Subsequently, on 25 March 1998 the public prosecutor filed another indictment with the Istanbul 11th Criminal Court accusing the applicant of abuse of office.

On 10 December 1998 the 11th Criminal Court decided to join the case pending before it to the proceedings before the 7th Criminal Court, and sent the case file to the latter.

In the course of the proceedings, during the ten hearings held between 5 March 1996 and 3 November 1998, the applicant’s lawyer explicitly asked the court to separate his client’s case from the others and to conclude it. The court each time rejected these requests given the search for O.I., and decided to postpone the hearings, awaiting the outcome of the arrest warrant. In particular, at one of these hearings on 25 November 1997, the applicant’s lawyer informed the court that he had heard that O.I. had escaped abroad. He further stated that his client had been victimised as a result of the prolongation of the proceedings.

On 20 May 1999 the court decided that the criminal proceedings concerning O.I. should proceed separately as he could not be found. The same day the court convicted the applicant and sentenced him to ten months’ imprisonment and a fine. The imprisonment was then commuted to a fine and its execution was suspended in accordance with Section 6 of Law no. 647 (the Law on the execution of sentences).

Both the applicant and the public prosecutor appealed against the decision, the applicant alleging that there was no concrete evidence on which he could be convicted.

On 27 May 2002 the Court of Cassation rejected the reasons for appeal but quashed the judgment on account of a miscalculation of the amount of the fine imposed on the applicant. The Court of Cassation did not order a retrial, but corrected the amount by reducing the fine and upheld the judgment with this amendment.


Violation of Art. 3 with regard to first applicant;No violation of Art. 3 with regard to second applicant;Violation of Art. 13;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings

The applicants, Abdurrahman Çelik and Kasim İmret were born in 1958 and 1947 respectively and live in Batman.

On 17 May 1998 the applicants, accused of acting as couriers for the PKK, were arrested by police officers from the Batman Security Directorate.

Prior to their detention in police custody, the applicants were examined by a doctor who found that they did not bear the marks of any injury. The applicants were then taken to the Batman Security Directorate where they were detained and questioned.

On 18 May 1998 the public prosecutor authorised the applicants' continued detention until 20 May 1998.

On 18 and 20 May 1998 the applicants were again examined by two doctors who found that there was no evidence that the applicants had been illtreated.

The applicants allege that they were subjected to various types of torture and inhuman treatment during their detention in police custody. They claim they were blindfolded and immersed in high pressure cold water. They had to stand naked and electric shocks were administered to various parts of their bodies including their sexual organs. They state that their testicles were squeezed and that their hands and legs were tied. They were severely beaten and deprived of food and water and prevented from using toilet facilities. They were also kept in isolation, subjected to unbearable noises, insulted and threatened with death. From time to time, police officers applied medication to their injuries.

On 20 May 1998 the applicants were brought before the Batman public prosecutor and then before the Batman Magistrates' Court (Sulh Ceza Mahkemesi). According to a protocol dated 20 May 1998 signed by six police officers, the applicants bumped into each other while they were getting out of the police car and Abdurrahman Çelik fell. It is to be noted that the applicants deny the authenticity of this protocol.

Both before the public prosecutor and the Batman Magistrates' Court the applicants denied the veracity of the statements that had been taken from them by the police and stated that they had been subjected to ill-treatment during their detention in police custody. The judge of the Batman Magistrates' Court observed that there was a violet-coloured bruise around Abdurrahman Çelik's left eye. She also noted the applicants' allegation that their statements were incorrect and had been obtained under duress. The Batman Magistrates' Court ordered the applicants' detention on remand.

On the same day the applicants were taken to the Batman prison.

On 21 May 1998 the applicants were examined by the prison doctor, Dr. T. D., who noted that there were marks on Abdurrahman Çelik's body resulting from the physical violence inflicted on him. He reported the following in respect of Abdurrahman Çelik:

“There is a bruise of 3 cm underneath the left eye. Furthermore, there are two petechial lesions on both right and left inguinal areas.”

In respect of Kasım İmret, Dr. T.D. noted that the latter's body did not bear any injury resulting from physical violence. The doctor further reported the following regarding Kasım İmret:

“There is a scar of 0,5 cm in diameter on the left side of the lower lip on the exterior.”

On the same day, the applicants filed petitions with the Batman Magistrates' Court and requested the latter to annul the order for their detention on remand. They emphasised, inter alia, that the statements taken by the police were false as they had been signed under duress

On 15 July 1999 one of the applicants, Abdurrahman Çelik was examined by a commission of medical experts from the Izmir Chamber of Doctors (tabipler odası). According to the report drafted by the commission, the applicant suffered somatic and psychological problems. The commission opined that the medical findings were a result of physical ill-treatment inflicted on the applicant.

On 12 June 1998 the public prosecutor at the Diyarbakır State Security Court filed a bill of indictment charging the applicants under Article 169 of the Criminal Code with aiding and abetting the members of the PKK.

On 27 July 1998 the applicants' representative filed a petition with the Diyarbakır State Security Court, alleging that the applicants had been tortured while in detention at the Batman Security Directorate. He requested the court to order the Batman Prison Administration to send the prison doctor's medical reports of 21 May 1998.

On 29 July 1998 the Batman prison administration submitted copies of the medical reports to the office of the Batman public prosecutor who transferred them to the Diyarbakır State Security Court.

On 13 August 1998 the Diyarbakır State Security Court held the first hearing against the applicants. Before the court, the applicants denied the charges and stated, inter alia, that they were forced to sign statements while blindfolded at the Batman Security Directorate. They also denied the veracity of the content of these statements.

The Diyarbakır Security Court read out the medical reports of 21 May 1998 drafted by the doctor of the Batman prison and asked the applicants' representative to make comments if he wished. The representative submitted that he had no objections to their contents. He further added that there was no evidence against the applicants other than the statements taken by the police at the Batman Security Directorate and that these statements were inadmissible as evidence against the applicants given that they had been obtained through ill-treatment. With reference to the medical report of 21 May 1998, the applicants' representative formally requested the court to initiate a criminal investigation (suç duyurusu) against the police officers responsible for the ill-treatment of the applicants and against the doctor who examined them following their release from police custody, for failing to note their injuries in his medical report of 20 May 1998.

The Diyarbakır State Security Court dismissed the request of the applicants' representative. It decided that the applicants had to lodge their complaints themselves with the local public prosecutor's office. It further decided that that there was no ground for the continued detention of the applicants and ordered their immediate release.

On 4 February 1999 the Diyarbakır State Security Court acquitted the applicants. The court held that there was no evidence against the applicants, other than the statements taken at the Batman Security Directorate which was insufficient to ground a conviction.

On 11 November 1999 the International Law and Foreign Relations Directorate of the Ministry of Justice sent a letter to the public prosecutor's office in Batman informing the latter about the applicants' allegations before the European Court of Human Rights.

Following the letter of 11 November 1999, the Batman public prosecutor initiated a preliminary investigation into the applicants' allegations. He took statements from the accused police officers who denied the charges against them. The police officers alleged that the applicants sustained their injuries on account of the crowd in the prison vehicle while they were being taken to the Batman Magistrates' Court.

On 15 February 2001 the Batman public prosecutor filed a bill of indictment with the Batman Assize Court (Ağır Ceza Mahkemesi) charging nine police officers, who were on duty at the Batman Security Directorate at the relevant time, with inflicting ill-treatment on the applicants. The charges were brought under Article 243 § 1 of the Criminal Code. The defendants were accused of illtreatment of the applicants in order to obtain a confession from them. The public prosecutor however stated in the indictment that there was not sufficient evidence against the police officers which could prove that the applicants had been ill-treated in police custody.

The Batman Assize Court held thirteen hearings in the case against the police officers between 16 February 2001 and 22 May 2003. The court heard oral evidence from the accused police officers, the witnesses and the applicants.

On 22 May 2003 the Batman Assize Court acquitted the accused police officers holding that there was insufficient evidence to conclude that the accused had ill-treated the applicants in police custody.

On 25 June 2003 the Batman Assize Court's judgment became final.

A description of the relevant domestic law at the material time can be found in Batı and Others v. Turkey, no. 33097/96 and 57834/00, § 96100, 3 June 2004 and Elçi and Others v. Turkey, no. 23145/93 and 25091/94, §§ 573 and 575, 13 November 2003.