The applicants are Polish nationals. The first applicant was born in 1942, the second applicant was born in 1950. They both live in Warsaw.

They are represented before the Court by Mr Ireneusz Zieliński, a lawyer practising in Warsaw.

A.

s, may be summarised as follows:

The applicants are two businessmen running a non-commercial partnership (spółka cywilna). On an unspecified date in 1993 a trustee of an estate of a certain insolvent company sued the applicants in the Rzeszów Regional Court (Commercial Division) (Sąd Wojewódzki - Wydział Gospodarczy) for payment of a debt. On a further unspecified date the applicants filed a counter-claim.

On 9 June 1994 the court held a hearing. During the hearing the applicants requested the court to fix a new hearing date for the end of the fruit season. The court granted their request and listed the next hearing for 8 September 1994, which was duly recorded in the minutes. Subsequently, during the same hearing, the applicants also requested the court to synchronise this hearing with a hearing before the same court, which was to be held in another case to which the applicants were parties.

On 8 September 1994 the applicants were not present at the hearing as they considered that a summons should be served on them in order to confirm the hearing date. On 22 September 1994 the court gave judgment ordering the applicants to pay the sum sought by the plaintiff. It rejected their counter-claim.

A copy of the judgment was not served on the applicants. They became aware of the judgment and its content as late as 11 October 1994. On this date they filed an appeal and a request to grant them retrospective leave to appeal out of time. They submitted that, to their understanding, on 9 June 1994 the court had not definitely fixed a new hearing date and therefore they had waited for a formal notification. The applicants also requested the court to rectify the minutes of the hearing of 9 June 1994 by inserting the following paragraph: “The court revises its order concerning the date of the next hearing and it will fix the date ex officio, synchronising it with a hearing in a case no. ... . The court shall notify the parties of that date.”

On 29 November 1994 the Rzeszów Regional Court dismissed the applicants' request for leave to appeal out of time. The court found that the minutes of the hearing had unambiguously indicated that the date of the next hearing had been fixed for 8 September 1994 and the court had correctly considered that the applicants had been duly notified of the hearing. The court also took into account the fact that the plaintiff had had no doubts as to the date of the hearing in question. Moreover, the applicants had been represented by a lawyer and any potential misunderstanding could have not been considered as a plausible justification for their failure to appeal within the prescribed time-limit. The applicants appealed against this decision.

On 28 April 1995 the Rzeszów Court of Appeal (Sąd Apelacyjny) upheld the contested decision. The court observed that a party to the proceedings was expected to act with all due diligence and if the applicants had had any doubts as to the definite hearing date, they could easily have verified them.

On 28 February 1995 a single judge, sitting as the Rzeszów Regional Court dismissed the applicants' request to rectify the minutes of the hearing. The court based its decision on the same grounds as those contained in the decision dismissing the applicants' request for leave to appeal out of time. On 10 April 1995 the applicants' further appeal was dismissed by the same court, sitting as a panel of three judges.

Subsequently, the applicants unsuccessfully requested the Minister of Justice for leave to file an extraordinary appeal. In letters of 19 January 1995 and of 17 March 1995 the Minister informed them that he would not examine the requests as both the proceedings concerning their request for leave to appeal out of time and the proceedings relating to their request for rectification of the minutes were still pending. In a letter of 31 October 1995 the Minister informed them that he could not rule on their request for leave to file an extraordinary appeal in respect of the judgment of 22 September 1994 because such a leave could not be granted in a commercial case after the expiry of six months from the date on which the judgment had become final. In respect of the second decision, the Minister found that there was no basis for granting the applicants leave to file an extraordinary appeal.

B. Relevant domestic law and practice

Section 149 § 2 of the Code of Civil Procedure reads, insofar as relevant:

“The parties and the [other] persons concerned shall be notified of a hearing date; such notification is effected either by service of a summons or [in case of an adjournment of a hearing] by fixing a date during the hearing. A summons shall always be served on the party which has been absent at the hearing ... .”

Section 168 § 1 of the Code of Civil Procedure reads, insofar as relevant:

“If the party to proceedings fails to comply with the prescribed time-limit without its fault, the court shall, on that party's request, grant leave to appeal out of time ... .”


Anatoly Kovler;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;George Nicolaou;Giorgio Malinverni;Sverre Erik Jebens

The applicant, Mr Viktor Anatolyevich Davidchuk, is a Russian national who was born in 1960 and lives in the Bryansk Region. The Russian Government were initially represented by Mr P. Laptev, the former Representative of the Russian Federation at the European Court of Human Rights, and subsequently by their Representative, Mrs V. Milinchuk.

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

The applicant was questioned by the police in the absence of his lawyer and confessed to the murder of his wife. Before the questioning he had made a handwritten statement that he did not need legal assistance.

On 29 May 1998 the Klintsovskiy District Court of the Bryansk Region convicted the applicant of murder and sentenced him to fourteen years’ imprisonment. The applicant was assisted by legal-aid counsel.

The applicant appealed. In his grounds of appeal he advanced the defence of irresistible impulse and asked for a more lenient sentence. He also applied for free legal representation because he did not have sufficient means to retain counsel. He relied on Article 50 of the Code of Criminal Procedure (see below).

By letter of 23 April 2003, a deputy President of the Bryansk Regional Court rejected the applicant’s request for free legal assistance because “there were no right to free legal representation before appeal courts”.

On 25 April 2003 the Bryansk Regional Court upheld the conviction on appeal but reduced the sentence to twelve years’ imprisonment. The applicant was not assisted by counsel.

On 9 March 2006 a deputy Prosecutor General lodged an application for supervisory review with the Presidium of the Bryansk Regional Court. He submitted that the Bryansk Regional Court had infringed the applicant’s right to free legal representation.

On 26 April 2006 the Presidium of the Bryansk Regional Court granted the prosecutor’s application, finding that the refusal to provide the applicant with free legal representation at the appeal hearing had violated the rights of the defence. It quashed the appeal judgment of 25 April 2003 and remitted the case for a fresh examination before the Bryansk Regional Court.

On 7 July 2006 the Bryansk Regional Court held a new appeal hearing. It upheld the applicant’s conviction but reduced the sentence to eleven years’ imprisonment.

On 29 December 2006 the applicant was released on parole.

Article 50 of the Code of Criminal Procedure (in force from 1 July 2002) establishes that the investigator, the prosecutor or the court provide the suspect or the accused with legal aid counsel upon his/her request.


Violation of P1-1;Pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings

The applicant was born in 1949 and lives in Siirt.

On 20 December 1990 the General Directorate of National Roads and Highways expropriated three plots of land belonging to the applicant. A committee of experts assessed the value of the plots of land and the relevant amount was paid to him.

Following the applicant's request for increased compensation, on 8 September 1998 the Baykan Civil Court of First-instance awarded him additional compensation of 114,180,000 Turkish liras (TRL), plus interest at the statutory rate applicable at the date of the court's decision. In order to calculate the amount of increased compensation, the court consulted several experts.

The General Directorate of National Roads and Highways appealed against the judgment of 8 September 1998.

On 19 October 1998 the Court of Cassation upheld the judgment.

According to the order of the General Directorate of National Roads and Highways, the amount of TRL 248,595,000 was paid to the applicant on 22 December 1998. The applicant claimed that he was paid on 4 January 1999.

The relevant domestic law and practice are set out in the Aka v. Turkey judgment of 23 September 1998 (Reports of Judgments and Decisions 1998-VI, pp. 2674-76, §§ 17-25).


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

The applicant, Mr Jozef Bič, is a Slovakian national who was born in 1953 and lives in Košice. He was represented before the Court by Mr R. Žikla, a lawyer practising in Košice. The Government of the Slovak Republic (“the Government”) were represented by their Agent, Mrs M. Pirošíková.

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

On 15 October 1999 the applicant instituted proceedings before the Košice I District Court relating to his right to use an apartment.

On 30 November 1999 two of the defendants submitted their comments in relation to the claim.

The first hearing in the case was held on 29 November 2001. Two of the defendants failed to appear.

The President of the District Court informed the applicant that the delay in the proceedings had been caused by the heavy workload of the judge dealing with the case.

All three defendants failed to appear before the court on 25 January 2002. The court requested the police's co-operation in serving the summons on two of the defendants, one of whom lived in the Czech Republic.

On 3 March 2002 another hearing was held. None of the defendants appeared. The summons had been served on one of them.

On 16 April 2002 two of the defendants filed written submissions with the District Court.

On 22 April 2002 the District Court imposed a procedural fine on one of the defendants.

On 24 April 2002 the District Court asked for documentary evidence to be produced.

Hearings were held on 23 May 2002 and on 13 September 2002.

On 28 March 2003 the judge asked for further documentary evidence to be produced.

A hearing was held on 23 April 2003. On 9 June 2003 the court inspected the apartment in issue.

On 10 June 2003 the case was adjourned. The applicant was invited to specify his claim within two months.

On 28 January 2004 one of the defendants asked the court to grant him access to the apartment.

On 28 May 2004 and on 22 June 2004 the judge asked the applicant to inform the court whether an agreement had been reached between the parties. The applicant replied on 2 September 2004.

On 24 February 2005 a hearing was held. Subsequently, a hearing was adjourned twice because the judge dealing with the case was on sick leave.

On 29 June 2005 a hearing was held. Neither the applicant nor the defendants were present. It was not proved that the summons had been served on one of the defendants. The court imposed a procedural fine on the lawyer of the other two defendants. The lawyer was later exempted from payment of the fine.

On 4 August 2005 the court notified the parties that the case had been assigned to a new judge and the hearing was adjourned. On the same day the court requested police co-operation in establishing the address of one of the defendants.

On 5 September 2005 the police informed the court that the defendant was living abroad at an unknown address.

On 26 October 2005 a hearing was held at which the applicant and all three defendants were present. The hearing was adjourned as further information was needed.

The District Court delivered a judgment on 5 December 2005. It ordered one of the defendants to let the applicant use the apartment in issue within three days of the judgment becoming final.

On 16 May 2006 the Košice Regional Court upheld the relevant part of the first-instance judgment. The decision in the case became final on 23 June 2006.

On 8 January 2003 the Constitutional Court found that the Košice I District Court had violated the applicant's right under Article 6 § 1 of the Convention to a hearing within a reasonable time. The decision stated that the case was not complex and that the applicant had not contributed to the length of the proceedings. The District Court had remained inactive from 30 November 1999 to 29 November 2001. The Constitutional Court considered it appropriate to award the applicant 20,000 Slovakian korunas (SKK), payable by the District Court within two months. It also ordered the District Court to proceed with the case without any further delay.

On 10 March 2005 the Constitutional Court found that the Košice I District Court had violated Article 6 § 1 in the proceedings concerning the applicant's action during the period subsequent to the delivery of the first decision on 8 January 2003.

The Constitutional Court found that the case was not complex. While the applicant had not always replied to the court's requests within the time-limit set, his behaviour as a whole had not resulted in any unjustified delays in the proceedings. As to the conduct of the District Court, it had remained inactive from 29 December 2003 to 28 May 2004 (5 months) as well as from 2 September 2004 to 4 January 2005 (4 months). Despite the earlier order issued by the Constitutional Court, the District Court had not proceeded with the determination of the action in good time.

The Constitutional Court awarded the applicant SKK 20,000 as just satisfaction, which the District Court was obliged to pay within two months. When determining the amount of just satisfaction, the Constitutional Court took into account, inter alia, that at a certain stage of the proceedings the applicant had not duly co-operated with the District Court. It further ordered the District Court to proceed with the case without any further delay and to reimburse the applicant's legal costs in the constitutional proceedings.


No violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing;Adversarial trial);No violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-3-d - Examination of witnesses);Violation of Article 2 of Protocol No. 4 - Freedom of movement-{general} (Article 2 para. 2 of Protocol No. 4 - Freedom to leave a country)

David Thór Björgvinsson;George Nicolaou;Lech Garlicki;Ledi Bianku;Nebojša Vučinić;Päivi Hirvelä;Zdravka Kalaydjieva

The applicants were born in 1973, 1974, 1978 and 1967 respectively. The first, the second and the third applicants live in Pazardzhik. The fourth applicant lives in Lozen.

On 12 October 2004 a preliminary investigation was opened against the applicants in respect of sexual procurement.

From 13 to 18 October 2004 the witnesses Mr Zh.M., Mr N.P., Ms R.M. and Ms D.M. were questioned before a judge. Neither the applicants nor their lawyers participated in the questioning.

Mr Zh.M. stated that the fourth applicant had owed him money and therefore in March 2004 had offered him the sexual services of one of the prostitutes controlled by him in lieu of payment. Mr Zh.M. had accepted. Later the fourth applicant had proposed to “sell” him the same woman for 2,000 euros (“EUR”).

Mr N.P. stated that in July 2004 he had seen two women standing on a main road, had stopped his car and had asked them who was their boss. They had replied that it was the fourth applicant. Then Mr N.P. had called the fourth applicant, who was an acquaintance of his, and the fourth applicant had confirmed that the women were working for him.

Ms R.M. stated that in the beginning of 2003 the fourth applicant had suggested that she work for him as a prostitute. She had accepted and the fourth applicant had bought her clothes and a bus ticket to France. There a woman named I. had met her and had found her a hotel. Ms R.M. had been instructed to give the money she earned to Ms I. who would forward it on to the first, the second and the fourth applicants through companies providing money transfer services. After some time the fourth applicant had sent Ms R.M. to Belgium, where the second applicant had met her. Later on, Ms R.M. had returned to Bulgaria and had prostituted herself along the main roads. One day in July 2004 another procurer had stopped his car and had suggested that she work for him. She had told him that she had worked for the fourth applicant, and had given him the latter’s phone number. He had called the fourth applicant and had then left.

Ms D.M. stated that in February 2004 she had been contacted by the third and the fourth applicants who had suggested that she work for them as a prostitute. She had refused.

On an unspecified date the Pazardzhik District Public Prosecutor’s Office decided that the identity of three other witnesses should be kept secret.

On 21 October 2004 witnesses with ID nos. 15 and 16 were questioned before a judge. Before the interviews the judge verified the two witnesses’ identity.

Witness no. 15 stated that she had dated the third applicant in the past. According to her statements, in February 2004, while she was still under age, the third applicant took her to a hotel in the town of P. where he left her in a room with an unknown man. Then the man had told her that he had paid the third applicant to have sex with her. She spent about an hour with him. On another day witness no. 15 had met the third applicant who had introduced her to the fourth applicant and a woman named D. The third and the fourth applicants had suggested to witness no. 15 and Ms D. that they work for them as prostitutes. Witness no. 15 had accepted. Afterwards, on a number of occasions from February to April 2004 witness no. 15 had been sent either by the third or the fourth applicants to meet their clients in different towns in Bulgaria. In April 2004 witness no. 15 had informed the third and the fourth applicants that she no longer wished to work for them.

Witness no. 16 stated that in February 2004 she had already been engaged in prostitution when the fourth applicant had contacted her and had suggested that she work for him. She had agreed and the first, the second and the fourth applicants had made arrangements for her to travel to Denmark, France and other countries in order to work as a prostitute. She had sent them money by using money transfer services or through third parties. After some time she had told them that she no longer wished to work for them.

Immediately after the interviews the records of the witnesses’ statements were presented to the applicants and their lawyers, and they were given the opportunity to put questions. The applicants and their lawyers stated in writing that they had acquainted themselves with the records and had no questions to put to the anonymous witnesses.

On 27 October 2004 the witness with ID no. 17 was questioned before a judge who verified her identity. The first, the second and the fourth applicants and the lawyers of the second and the fourth applicants participated in the interview but the witness’ identity was protected. The third applicant and his lawyer, as well as the first applicant’s lawyer, although duly summoned, were absent. Witness no. 17 stated that in the summer of 2003 she had accepted to work as a prostitute for the first, the second and the fourth applicants. They had arranged her travel to and stay in Denmark, Norway and France, and she had sent money to individuals specified by them. After some time she had informed the fourth applicant that she no longer wished to work for him.

The District Court invited the applicants and their lawyers to put questions to witness no. 17. The first, the second and the fourth applicants expressly stated in writing that they had no questions for her.

On 4 November 2004 the District Court ordered three banks to inform the prosecution and the police authorities of the international money transfers ordered or received by certain individuals suspected of having been involved in the applicants’ sexual procurement activities. On 24 November 2004 the District Public Prosecutor issued a similar order in respect of two other banks.

On an unknown date the applicants were accused of having induced into prostitution, procured or transported, individually or in complicity with each other, the three anonymous witnesses and other women.

The applicants were also apparently subject to special means of surveillance for an unknown period of time.

On 22 April 2005 the District Public Prosecutor’s Office filed an indictment against the applicants. On an unknown date the District Court decided that the public should be excluded from the trial.

On 5 July 2005 the District Court held a hearing in the case. The anonymous witnesses and nine other witnesses did not appear. The court adjourned the hearing because of irregularities in the summoning of witnesses.

The next hearing was held on 21 September 2005. Witness no. 15 was present, but the other two anonymous witnesses and ten other witnesses did not appear. The District Court adjourned the hearing because of irregularities in the summoning of witnesses.

On 4 November 2005 the District Court held a further hearing. The anonymous witnesses and eleven other witnesses did not appear. The Prosecutor’s Office submitted written statements by two of the anonymous witnesses that they were aware of the criminal proceedings and did not wish to attend the hearing. The applicants’ lawyers requested that the anonymous witnesses be found and questioned. The District Court held that the anonymous witnesses had been the victims of the crimes of which the applicants had been accused, and therefore were free to decide whether they wished to attend the hearing. It questioned seven witnesses, who stated that they did not know or did not remember anything about the case. However, two of the witnesses, Mr A.D. and Mr I.S., admitted that they had received international money transfers, and Mr A.D. specified that he had thus done the fourth applicant who had had no identity card a favour. The Public Prosecutor requested that the records of the witnesses’ statements before the investigator be read out in court. However, the applicants did not give their consent and the District Court dismissed that request.

The next hearing was held on 20 December 2005. The anonymous witnesses and several other witnesses were again absent. The Prosecutor’s Office submitted a police report attesting to the fact that one of the anonymous witnesses was abroad. The District Court ordered that the anonymous witnesses and the other absent witnesses be found and brought before it. It further questioned four witnesses, including the witness R.M. After that it read out R.M.’s testimony given before a judge at the pre-trial stage (see paragraph 10 above), finding that there was inconsistency in her statements. Another witness, Ms Ts.V., stated that in October 2004 the fourth applicant had suggested that she work for him as a prostitute but she had refused.

The next hearing was held on 20 February 2006. The District Court examined one witness and admitted the evidence obtained from the use of special means of surveillance. The anonymous witnesses and several other witnesses once again did not appear. The Prosecutor’s Office stated that two of the anonymous witnesses were abroad and that the third could not be found. The applicants’ lawyers insisted that the anonymous witnesses be found and questioned, and asserted that anonymity was not justified as the applicants knew the identity of those witnesses. The District Court again ordered that the anonymous witnesses and the other missing witnesses be found and brought before it.

A further hearing was held on 28 March 2006. The anonymous witnesses and several other witnesses did not appear. A police report was submitted, stating that two of the anonymous witnesses had left the country and the third one had not been found. The applicants’ lawyers insisted that the anonymous witnesses be found and questioned, and expressed doubts about the efforts of the prosecution authorities to ensure their presence at the trial. They further requested the cancellation of the witness protection measures, stating that the applicants were already aware of their identity. The District Court found that the reasons for protecting the anonymous witnesses persisted. Noting that the anonymous witnesses were abroad, it read out their statements given at the pre-trial stage and admitted them. It did the same with the testimony of Mr Zh.M. (see paragraph 8 above), who appeared but stated that he did not remember anything about the case, and with the testimony of three other witnesses who had been questioned before a judge at the pre-trial stage, including Mr N.P. and Ms D.M. (see paragraphs 9 and 11 above), who could not be found and summoned. The District Court also read out and admitted a number of documents, such as reports on international money transfers, police reports, and the information obtained through the secret surveillance of the applicants. The applicants’ lawyers unsuccessfully requested the recusal of the panel.

In a judgment of 28 March 2006 the District Court convicted the applicants, individually or in complicity with each other, of having induced or attempted to induce into prostitution, procured or transported the three anonymous witnesses and the witnesses Ms R.M., Ms D.M. and Ms Ts.V. Mr Sarkizov was sentenced to three years’ imprisonment and a fine, Mr Vasilev – to three years’ imprisonment and a fine, Mr Petkov – to three years and two months’ imprisonment and a fine, and Mr Marinkov – to five years’ imprisonment and a fine. The District Court found that the victims’ statements, including those of the anonymous witnesses, had been corroborated by the other evidence in the case, such as other witness statements, reports on international money transfers, reports from the border control authorities, and the information obtained through the secret surveillance of the applicants.

Following an appeal by the applicants, on 4 July 2006 the Pazardzhik Regional Court held a hearing. It dismissed the applicants’ request that the anonymous witnesses be questioned, finding that this was not necessary.

In a judgment of 17 July 2006 the Regional Court upheld the sentence of 28 March 2006. It fully endorsed the findings and conclusions of the District Court.

The judgment of 17 July 2006 was not subject to an appeal on points of law and became final.

On an unknown date the applicants requested the reopening of the criminal proceedings. In a judgment of 30 May 2007 the Supreme Court of Cassation dismissed the request. It held that there had been no procedural breaches in the examination of the anonymous witnesses at the pre-trial stage, and that the applicants had been acquainted with the examination records and had explicitly stated that they had no questions to put to those witnesses. The court further emphasised that the anonymous witnesses’ testimony had not been the sole or decisive evidence for the applicants’ conviction, but had been corroborated by a wealth of other evidence.

The second applicant was conditionally released from prison on 26 April 2007 with a six-month supervision period, which expired, apparently, in October 2007.

On 4 June 2007 the Pazardzhik Regional Police Directorate prohibited him from leaving the country pending his rehabilitation (see paragraph 46 below). He appealed against the order, arguing that he had no employment in Bulgaria and that the prohibition did not contribute to his social re-integration, was excessive and unnecessary. In a final judgment of 28 January 2008 the Supreme Administrative Court dismissed the appeal. The court held that the prohibition had been imposed in compliance with the law, on the grounds of the second applicant’s conviction for an offence subject to public prosecution, and that the ratio legis behind the prohibition was to prevent criminally active individuals from travelling abroad until they had proved that they had been reformed.

On an unknown date the fourth applicant was released from prison.

On 7 April 2008 the Pazardzhik Regional Police Directorate prohibited him from leaving the country pending his rehabilitation. He appealed against the order, arguing that he had served his sentence, that there were no pending criminal proceedings against him, that his work as a football manager required frequent travel abroad and that he had to accompany his son for medical treatment abroad. In a final judgment of 18 December 2008 the Supreme Administrative Court dismissed the appeal, holding that the assessment of the administrative body was not subject to judicial control. The court further held that the police authorities were not obliged to state any reasons for their decision to impose the ban.

Seeing that the travel bans were contingent on the judicial rehabilitation of the second and the fourth applicants, these measures apparently would have lasted at least until October 2010 for the second applicant and until an unknown date in 2011 for the fourth applicant (see paragraph 46 below). However, in October 2009 the Bulgarian Identity Papers Act was amended to the effect that convicted individuals who had served their sentences could no longer be prohibited from leaving the country. As a result, all travel bans imposed before that amendment ceased to have effect as from July 2010 (see Nalbantski v. Bulgaria, no. 30943/04, § 25, 10 February 2011).

Pursuant to Articles 97a and 98 of the 1974 Code of Criminal Procedure (“the 1974 CCP”), in force until 29 April 2006, measures for the protection of a witness had to be taken where there were sufficient grounds to believe that his testimony had caused or could have caused a real risk to his life, health or property or that of his close relatives or other individuals with whom he had very close ties. The decision that a witness should be protected had to specify the reasons for the protection and its type. The pretrial authorities and the court had a direct access to the protected witness and were obliged to verify his identity before the interview. A copy of the record of the interview with a protected witness had to be presented immediately to the accused and his lawyer who were entitled to put questions to the witness. The measures for protection could be discontinued at the request of the protected witness or where they were no longer necessary.

Pursuant to Article 99a of the 1974 CCP, the charges and the conviction could not be based exclusively on the testimony of anonymous witnesses.

These provisions were superseded by Articles 123, 124 and 141 of the 2006 CCP, in force since 29 April 2006, which repeat their text almost verbatim.

In a binding interpretative decision (тълк. реш. № 2 от 16 юли 2009 г. на ВКС по тълк.д. № 2/2009 г., ОСНК) of 16 July 2009 the Plenary Meeting of the Criminal Chambers of the Supreme Court of Cassation resolved a number of contentious issues relating to the construction of various provisions of the Criminal Code and the 2006 CCP on the prosecution of human trafficking. In point 5 of the decision it held that the victim of a human trafficking offence could participate in the criminal proceedings as an anonymous witness. It held that the accused’s defence rights could be subjected to reasonable restrictions, including by granting anonymity status to the testifying victim, in order to protect the latter’s rights. However, a strict judicial control had to be exercised over the reasons for granting anonymity to testifying victims and over the procedures aimed at counterbalancing the restriction of the defence rights. According to the Supreme Court of Cassation, in cases of anonymous witnesses the legislation provided three procedural safeguards against the risk of manipulating the evidence in favour of the prosecution: (1) the direct contact between the judge and the anonymous witness, which guaranteed, at the very least, that such a witness indeed existed; (2) the right of the accused and his lawyer to put questions to the anonymous witness immediately after his questioning; and (3) the limited probative importance the legislation attached to anonymous testimony (see paragraph 40 above). The court made reference to the case-law of this Court and concluded that the rules of fair trial would not be breached if the above procedures were strictly complied with, and notably, if the accused has been given the opportunity to put questions to the anonymous witness immediately after the questioning of the latter.

The possibility to interview a witness before a judge, in cases where it is likely that the witness would not be able to attend the trial due to illness, absence or other reasons, or where his testimony would be of “exceptional importance for the establishment of objective truth”, was provided for in Article 210a of the 1974 CCP. The provision was inserted with effect from 1 January 2000 with the aim of creating a possibility to use evidence collected at the pre-trial stage of the proceedings, while at the same time conforming to the principle of immediacy of judicial proceedings. Article 210a § 2 specifically provided that the investigator or prosecutor in charge of the interview had to ensure the witness’s presence and “a possibility” for the accused and his counsel to take part in the interview.

Article 279 of the 1974 CCP allowed the statement of a witness given at the pre-trial stage to be read out in court if, inter alia, there was a considerable discrepancy between that statement and the witness’ testimony given at the trial; if the witness had not been found and summoned or was unable to appear in court; or if he had appeared but had refused to testify at trial or had stated that he did not remember anything. If the accused was not represented, the court had to inform him that the testimony thus read out would be used for the determination of the criminal charges against him. Where the statement had been made before a judge, pursuant to Article 210a of the 1974 CCP, there was no requirement for the court examining the case to obtain the consent of the parties (Article 279 § 1).

The relevant domestic law and practice concerning travel bans on convicted individuals pending their rehabilitation are set out in the Court’s judgment in the case of Nalbantski, cited above, §§ 25-29.

Under Article 87 § 1 of the 1968 Criminal Code, a convicted individual may benefit from judicial rehabilitation. Such rehabilitation may be granted by the court which convicted him or her, if more than three years have elapsed since the serving of the sentence, and the individual concerned has not committed another offence punishable with imprisonment, has demonstrated good behaviour and, in the case of offences committed with intent, has made good any damage done. The latter requirement may be disregarded by the court if there is good reason (Article 87 § 2).

Section 1 of the 1988 State and Municipalities Responsibility for Damage Act (“the SMRDA”), as in force since July 2006, provides as follows:

“The State and the municipalities shall be liable for damage caused to individuals and legal persons by unlawful decisions, actions or omissions by their organs and officials, committed in the course of or in connection with the performance of administrative action.”

Pursuant to the consistent case-law of the domestic courts, for the impugned conduct to be considered unlawful, it must be in breach of national law.


In issue No. 4 of a newspaper “Gazeta Polska”, of which the applicant was an editor-in-chief, a list of informants of the communist secret police was published. This list had been submitted to Parliament (Sejm) in June 1992 by the Minister of Internal Affairs, following a resolution of the Parliament. The list was originally meant to remain strictly confidential, but its contents were subsequently immediately leaked to the public. In the same issue of the newspaper, apart from the list, the following text, entitled “Deleted at the Last Minute” (“Wykreśleni w ostatniej chwili”), was published: “[The Minister of Internal Affairs] was until the last minute verifying data which he had to submit to Parliament, pursuant to its resolution. A few hours before the list was submitted to [Parliament] he had deleted several names from the list, for lack of conclusive evidence. It transpires from our information that these names were: [...]”.The names of three well-known politicians followed.

In issue No. 5 of the same newspaper, a text entitled “The List of Informants - a Supplement” (“Lista konfidentów - uzupełnienie”) was published, which read as follows: “As a result of a misunderstanding, we did not include the following name in the list of persons deleted at the last minute from the Minister of Interior's document, which was published in issue No. 4 of the Gazeta Polska: S.N, and belonging to a category of TW (an informant), with a pseudonym [...,] who had been recruited [by the secret police] during his stay in prison.” (“Z wydrukowanej w nr 4 Gazety Polskiej listy <Wykreslonych w ostatniej chwili> wypadło nam w wyniku nieporozumienia nazwisko S.N., kategoria TW, kryptonim [...], który został zwerbowany do współpracy w więzieniu.”)

On 30 June 1993 S. N., who was also a candidate for Parliament in elections scheduled for September 1993, brought a court action against the applicant before the Warsaw Regional Court in accordance with Article 139 of the Election Act. He submitted that the newspaper of which the applicant was an editor-in-chief had published information that he had been an informant of the secret police of the former communist regime. He contended that this was false. He demanded that the applicant publicly revoke this statement and apologise for it by placing paid announcements in numerous newspapers.

On 1 July 1993 the Warsaw Regional Court declared itself incompetent to deal with the matter and transmitted the case to the Łódź Regional Court.

On 22 July 1993 the Łódź Regional Court decided that the case should be considered in ordinary contentious proceedings applicable to claims for protection of reputation under Article 24 of the Civil Code and transmitted the case to the Warsaw Regional Court. Upon appeal, the Łódź Court of Appeal on 4 August 1993 quashed this decision as it considered that the case should be dealt with by the Łódź Regional Court in special proceedings governed by Article 139 of the Election Act.

On 6 August 1993 the Łódź Regional Court summoned the applicant by fax sent to his work address to attend a court hearing scheduled for 7 August 1993. On the same day the applicant's lawyer sent a letter to the court in which he protested against the despatch of the summons to the applicant's place of work instead of to his private address and informed the court that the applicant should be considered as not having been duly summoned. He requested that the hearing be adjourned.

At the hearing on 7 August 1993 the Łódź Regional Court summoned the applicant to adduce evidence to show that the information concerning the plaintiff S. N. and his alleged involvement with the communist secret police was true.

On 12 August 1993 the applicant submitted a power of attorney in favour of his representative and requested that the case be pursued by way of ordinary contentious proceedings as the proceedings provided for by Article 139 of the Election Act had not led to a decision on the merits within three-day period stipulated in this Act. He requested the court to call as witnesses the former and current Ministers of Internal Affairs as well as J.K., a well-known politician, and to request the Ministry to submit various documents in evidence.

On 24 August 1993 the Łódź Regional Court summoned the applicant and his lawyer by notifications sent by fax to their respective work and office addresses to the hearing fixed for 25 August 1993.

At the hearing on 25 August 1993 before the Łódź Regional Court the applicant's lawyer was present, but the applicant was not. The court pronounced its decision on the same day. It upheld the plaintiff's claim and ordered the applicant to publicly revoke his statements by placing relevant announcements in numerous newspapers.

In reaching this decision, the Łódź Regional Court considered that in the proceedings in question the time-limits for serving summonses set out in the Code of Civil Procedure did not apply. The applicant's lawyer had been aware that the proceedings had been instituted since 6 August 1993; he had been given a power of attorney on 11 August 1993 and had submitted the request to produce evidence on 16 August 1993. Thus, he had had enough time to prepare his arguments. The court indicated that it had requested the Ministry of Internal Affairs to produce the documents requested by the applicant. On 20 August 1993 the Ministry had refused to do so as those documents were subject to official secrecy and could only be produced in court in criminal proceedings, in accordance with the Bureau of State Security Act. The court further observed that it could not call the witnesses proposed by the applicant; they could only have given evidence as to whether S. N. had been put on the list of informants prepared by the Ministry, but not as to whether S. N had in fact been an informant. Moreover, in view of the serious nature of the allegations advanced against S.N. by the applicant's newspaper, in the absence of any documentary evidence these allegations could not have been considered proved, even if they had been confirmed by the witnesses. Thus, as the applicant had not adduced any other evidence to prove that the information concerning S. N. was true, the court found against him.

The applicant appealed against this decision, invoking, inter alia, Article 6 of the Convention. He contended that the proceedings were null and void as neither the applicant nor his lawyer had been summoned to the hearing on 25 August 1993 with at least three-days' notice, as provided for by Article 149 § 3 of the Code of Civil Procedure. Furthermore, the applicant's interests could not be protected properly as he did not have sufficient time to prepare his arguments between the date of receipt of the summons and the date of the hearing. The applicant further argued that, as all his requests to call witnesses and evidence had been refused, he had been denied a reasonable opportunity to prove the facts essential for the merits of the decision.

On 31 August 1993 the Łódź Court of Appeal dismissed the appeal. The court considered that the complaint concerning the summons was unfounded. Both the applicant and his lawyer had been summoned one day before the hearing, which was justified, given the special nature of the proceedings under Article 139 of the Election Act. The court recalled that, although this provision provided for such cases to be decided within 48 hours, failure to do so did not oblige the court to deal with the case according to the normal procedures for contentious civil proceedings laid down in the provisions of the Code of Civil Procedure. Moreover, the applicant, being aware of the special nature of the proceedings, should have expected that he might be summoned from one day to the next and should have taken effective measures to ensure that the summons reached him in time. These considerations were especially relevant as the applicant was represented by a lawyer who was under a professional obligation to take appropriate measures to this end. In any event, the lawyer received the summons in time to appear at the hearing, even though he contended, unconvincingly, that he had learned about the date of the hearing from a journalist.

As to the merits, the court noted that the lower court had requested the Ministry to submit documents requested by the applicant. However, this request had been refused. In the light of Article 12 of the Bureau of State Security Act, the refusal had to be considered lawful. Moreover, the very fact that an individual's name had been included in the list prepared by the Ministry could not be deemed proof that this person had in fact been an informant. The veracity of information contained in the list had been repeatedly called into question both by interested parties and, more widely, in numerous press articles. It had been emphasised that the list had been prepared and used as a weapon in a political battle, intended to discredit the persons concerned. Therefore, the veracity of a claim that a particular person had been a police informant could not possibly be established solely on the basis of the list itself and without prior verification of the list and, in particular, without some legally established means whereby the rights of persons branded as police informants could be defended. The court accordingly considered that the burden of proof lay with the defendant, who had failed to demonstrate that, at the time of the publication of the information at issue, he had possessed sufficient evidence that S.N. had been an informant as alleged.

Article 139 of the Election Law of 28 June 1991 provided that a candidate in parliamentary elections could bring a court action seeking rectification of information published about him/her during the election campaign and claiming compensation. The court was required to decide the case within 48 hours. The court could order the publisher of the information to rectify the information immediately and to apologise publicly to the plaintiff, if the information proved to be false or inaccurate. The court could order the defendant to pay compensation to the plaintiff. The provisions of the Code of Civil Procedure were applicable to proceedings brought before the courts on the basis of this provision.

Article 6 of the Civil Code provides that the person who relies on a fact relevant to his or her case bears the burden of proving that fact. Pursuant to Article 232 of the Code of Civil Procedure, the parties to civil proceedings are under an obligation to adduce evidence to establish the facts relevant to their claim. Under Article 227 of the Code of Civil Procedure, evidence can be taken as to the facts which are of relevance for the outcome of the case.

As regards the burden of proof, the case-law of the Polish courts in proceedings instituted on the basis of Article 139 of the 1991 Election Law was inconsistent. In certain cases the courts held that an analysis of Article 139 read together with the general principle of Article 6 of the Civil Code led to the conclusion that the burden of proof, in cases in which the information concerning a candidate was harmful to his or her good reputation, lay on the person who had published the information in question. The courts argued that in such cases the approach taken in Article 24 of the Civil Code should be followed, in that there was a presumption that attacks on the personal rights of the plaintiff were unlawful. Consequently, it fell to the defendant to prove their lawfulness, in particular by pointing out that the information published about the plaintiff, and which was deemed to be harmful to him or her, was true. Thus the plaintiff was exempted from the obligation to demonstrate that the allegations against him were untrue (the Kielce Regional Court, I Ns 60/93, Dec. of 11.09.1993; the Krakow Court of Appeal, I Acz 406/93, Dec. of 16.09.1993).

In another decision, the Katowice Court of Appeal held that the plaintiff in Article 139 proceedings could not be required to adduce evidence in order to prove that something had not occurred (the Katowice Court of Appeal, I Acz 590/93, Dec. of 30.08.1993). In a further case in which the court ordered the defendant to prove that statements about the candidate were true, the court emphasised that, in conformity with the principle ei incumbit probatio qui dicit, non qui negat, it was not possible to require the plaintiff to produce evidence to prove that certain facts had not occurred (the Gdańsk Court of Appeal, Acz 632/93, Dec. 19.08.1993).

On the other hand, in certain decisions given on the basis of Article 139 of the Election Law, the courts held that that provision in conjunction with Article 6 of the Civil Code required the plaintiff to prove that the statements contained in the contested publications were untrue (the Katowice Regional Court, II Ns 88/93, Dec. 10.09.1993; the Katowice Regional Court I Acz 660/93, Dec. 18.09.1993).

The applicant lodged his application with the Commission, alleging a violation of Article 6 § 1 of the Convention.

The Commission declared the application partly admissible on 26 February 1996. In its report of 21 October 1999 (former Article 31 of the Convention) it expressed the opinion, by thirty votes to one, that there had been no violation of Article 6 § 1 of the Convention on account of the fact that the court refused to take all evidence proposed by the applicant.


The applicant was born in 1953 and lives in Gdynia.

On 5 September 2003 the applicant was arrested and placed in custody. He was suspected of having committed offences of kidnapping and acting in an organisation of a criminal character.

On an unknown date the Gdańsk District Court ordered that the applicant be detained until 14 December 2003. The court based its detention order on a reasonable suspicion that the applicant had committed the offences and on the severity of the likely penalty, which gave rise to a fear that the applicant would obstruct the proceedings. The court also stressed his relapse into crime.

Subsequent decisions as to the extension of the applicant’s pre-trial detention were taken on 25 November 2003, 18 December 2003, 17 February 2004, 3 June 2004, 28 September 2004, 22 December 2004 and 30 March 2005.

In all the above-mentioned decisions the courts mainly relied on the same grounds for detention as those given for the making of the first detention order. In addition, they indicated the need to conduct further investigations and the probable collusion of the accused.

On many occasions the applicant unsuccessfully requested his release from detention and, also unsuccessfully, appealed against decisions extending his pre-trial detention.

On 4 February 2004 a bill of indictment was filed against the applicant and thirteen co-accused. The applicant was charged with kidnapping and acting in an organisation of a criminal character.

From 30 September 2004 to 4 May 2005 the applicant was serving a prison sentence in respect of another conviction.

On 30 June 2004 the first hearing was held before the Gdańsk Regional Court. Hearings scheduled for 14 and 22 September 2004 were postponed due to the necessity of replacing one of the judges.

On 6 October 2004 a new judge was assigned to the case.

Subsequent hearings were held on 5 January 2005, 12 January 2005, 2 March 2005, 9 March 2005, 16 March 2005, 30 March 2005, 6 April 2005, 13 April 2005, 27 April 2005, 4 May 2005, 18 May 2005, 30 May 2005, 1 June 2005, 15 June 2005, 29 June 2005, 19 July 2005, 17 August 2005, 7 September 2005, 21 September 2005, 13 October 2005, 9 November 2005, 7 December 2005, 21 December 2005, 11 January 2006, 8 February 2006, 1 March 2006 and 29 March 2006.

The applicant’s pre-trial detention ended on 1 June 2005.

The proceedings are pending before the first-instance court.

On 18 April 2002 the applicant was arrested and placed in custody.

On 19 April 2002 the Gdańsk District Court ordered that the applicant be detained for three months on suspicion of having committed armed robbery and having acted in an organisation of a criminal character. The court based its detention order on a reasonable suspicion that the applicant had committed the offences and on the severity of the likely penalty, which gave rise to a fear that the applicant would obstruct the proceedings.

From 18 April 2002 to 28 August 2003 the applicant was serving a prison sentence in respect of another conviction.

The applicant’s detention was extended on the following dates: 9 July 2002, 12 September 2002, 23 May 2003, 25 July 2003, 28 November 2003, 23 March 2004, 7 April 2004 and 22 June 2004.

In all the above-mentioned decisions the courts mainly relied on the same grounds for detention as those given for the making of the first detention order. In some of the decisions, the courts also indicated the need to conduct further investigations.

On 12 December 2002 a bill of indictment was filed against the applicant and eighteen co-accused. The applicant was charged with armed robbery and acting in an organisation of a criminal character.

The first hearing, scheduled for 25 April 2005, was cancelled due to a judge’s illness.

Subsequent hearings were held on 16 May 2003, 23 May 2003, 13 June 2003, 24 June 2003, 27 June 2003, 1 December 2003, 19 December 2003, 29 December 2003. In January and February 2004 altogether five hearings were held. Hearings scheduled for 18 March 2004 and 1 April 2004 were cancelled due to a judge’s illness. Subsequently, hearings were held on 21 May 2004, 28 May 2004, 18 June 2004, 23 July 2004, 17 September 2004, 22 October 2004, 19 November 2004, 28 January 2005, 25 February 2005, 25 March 2005, 15 April 2005 and 22 April 2005.

On 30 September 2004 the applicant was released from detention.

On 14 December 2004 the applicant’s complaint lodged under the Law of 17 June 2004 on complaints about a breach of the right to a trial within a reasonable time was rejected on formal grounds.

On 29 April 2005 the Gdańsk Regional Court convicted the applicant of the offences and sentenced him to three years’ imprisonment. On 13 February 2006 the applicant appealed.

The proceedings are pending before the Gdańsk Court of Appeal.

For a description of the relevant domestic law, see Kozik v. Poland, no. 25501/02, judgment of 18 July 2006.

On 17 September 2004 the Law of 17 June 2004 on complaints about a breach of the right to a trial within a reasonable time (Ustawa o skardze na naruszenie prawa strony do rozpoznania sprawy w postępowaniu sądowym bez nieuzasadnionej zwłoki) entered into force (“the 2004 Act”). It lays down various legal means designed to counteract and/or redress the undue length of judicial proceedings. A party to pending proceedings may ask for the acceleration of those proceedings and/or just satisfaction for their unreasonable length under section 2 read in conjunction with section 5(1) of the 2004 Act.

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


The applicant is a Municipal Council of a suburb of Athens. It is represented before the Court by Mr N. Frangakis, a lawyer practising in Athens.

In 1985, the Municipal Council constructed five tennis courts, a warehouse, a dressing-room and a small bar in an area owned by it. In 1992, it enlarged the site and transferred it to the Tennis Club of Glyfada.

By decision no. 406/1992 which altered the development plan in this area, the Municipal Council invited the Pireus Prefecture to designate the area as a green and sports area. The Pireus Prefecture did so by decision no. 10976/1993 of 9 August 1993.

On 1 October 1993, a number of residents of Glyfada applied to the Supreme Administrative Court for judicial review of decisions nos.406/1992 and 10976/1993. The application was directed against the Minister of Environment, Town Planning and Public Works. On 11 September 1995, the Municipal Council intervened in the proceedings in favour of the Minister. The hearing took place on 5 June 1996 and the judgment delivered on 29 June 1998.


Violation of Art. 6-1;Violation of Art. 13+6-1;Violation of P1-1

The applicant was born in 1956 and lives in Chişinău.

In July 1994 the applicant concluded a contract with ASITO (a private insurance company incorporated in Moldova) whereby she paid an insurance premium in exchange for a fixed annuity of 500 Moldovan lei (MDL) (the equivalent of 122.55 United States dollars (USD) at the time) in addition to her pension (“annuity”). She started receiving her annuity in August 1996. In January 1999 ASITO stopped paying it, invoking a change in the interest rate of the National Bank of Moldova.

On 4 March 1999 the applicant brought an action against ASITO, seeking the payment of the annuity to date and requiring the company to abide by the contract.

On 21 June 1999 the Râşcani District Court ruled in favour of the applicant and ordered ASITO to pay her the pension arrears in the amount of MDL 3,421.50 (the equivalent of 282.32 euros (EUR) at the time). ASITO lodged an appeal with the Chişinău Regional Court, which dismissed it on 25 April 2000. ASITO did not appeal and the judgment became final and enforceable.

On 29 May 2000 the applicant lodged a request with the Râşcani District Court seeking enforcement of the judgment in her favour. The latter did not reply, but sent the enforcement warrant to a Bailiff only on 17 May 2002.

In the meantime, since in its judgment of 21 June 1999 the Râşcani District Court had ruled only on the payment of the pension arrears, on 24 November 2000 it issued an additional judgment in favour of the applicant and ordered ASITO to abide by the contract and to resume the monthly payments. That judgment became final.

Between 2000 and 2002 the applicant lodged other complaints about the non-enforcement of the judgments in her favour with the Râşcani District Court, the Bailiff, the Ministry of Justice and the Superior Council of Magistrates. On 8 May 2002 the Ministry of Justice requested the Râşcani District Court to take all necessary steps, including the sanctioning of the persons responsible, in order to enforce the judgments in favour of the applicant and to inform her about the outcome of the enforcement proceedings. The applicant did not receive any further reply; nor were any sanctions imposed on the debtor company or its employees.

The final judgment of 25 April 2000 and the additional judgment of 24 November 2000 were enforced on 5 September 2003.

The relevant domestic law was set out in Prodan v. Moldova, no. 49806/99, § 31, ECHR 2004III (extracts).


The applicant, Mrs Cihan Sincar, is a Turkish national, who was born in 1957 and lives in Mardin. She is represented before the Court by Mrs Bedia Buran, a lawyer practising in Ankara.

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

The applicant’s husband, Mehmet Sincar, was a member of parliament (MP) for the Democracy Party (hereinafter referred to as the DEP) at the time of the event.

On 2 September 1993 unknown persons shot the brothers of the DEP’s vice president, both MPs for the same party, in Batman. One of them died and the other was injured.

On 4 September 1993 the applicant’s husband, Mehmet Sincar, and a member of the DEP’s Executive Committee in Batman, who had been sent to the region to investigate these murders, were also shot dead. The Batman Public Prosecutor initiated criminal proceedings against twelve suspects under Article 146 of the Turkish Criminal Code. He subsequently declined jurisdiction in the matter and transferred the investigation file to the prosecutor of the Diyarbakır State Security Court, who brought criminal proceedings against the suspects under Article 146 of the Turkish Criminal Code, charging them with an “attempt to undermine the constitutional order of the State” in relation to the death of the applicant’s husband.

The Diyarbakır State Security Court acquitted ten of the suspects on 29 November 1994 and the remaining two on 26 November 1996.

On 2 October 1998, Mrs Sincar applied for and obtained a copy of the court’s decision to acquit the alleged perpetrators.

On an unspecified date, the former Minister of the Interior Mehmet Ağar claimed this murder to have been carried out by a terrorist organisation, namely the Hizbullah. At the beginning of 1998, the so-called Susurluk report was produced at the request of the Prime Minister, by Mr Kutlu Savaş, the Vice-President of the Board of Inspectors of the Prime Minister’s Office. It was stated on page 31 of this report that “the murder of Mehmet Sincar had been plotted and carried out in accomplice by A.K., M.M., İ. Y., and A. D. and that following this event A.K. had signed a letter in relation to the murder”. This report was not deemed sufficient evidence by the public prosecutors to initiate criminal proceedings against the identified perpetrators.

In Turkish law – for the purposes of preliminary investigations by prosecutors – criminal acts are divided into two categories; firstly those in respect of which a victim must inform the prosecutor so that an investigation can be started by the latter, and secondly, those in respect of which the victim is not required to make a complaint in order for an investigation to be started by the prosecutor (Article 151 of the Code of Criminal Procedure, hereinafter the CCP). Threat is classified as one of the crimes in the first category. Murder is classified as one of the crimes in the second category; however, this does not prevent relatives of victims from lodging criminal complaints with the authorities.

A public prosecutor who is informed by any means whatsoever of a situation that gives rise to the suspicion that an offence has been committed is obliged to investigate the facts by conducting the necessary inquiries to identify the perpetrators (Article 153 CCP). The public prosecutor may institute criminal proceedings if he or she decides that the evidence justifies the indictment of a suspect (Article 163 CCP). If it appears that the evidence against a suspect is insufficient to justify the institution of criminal proceedings, the public prosecutor may close the investigation in respect of that person. However, the public prosecutor may decide not to prosecute if the evidence is clearly insufficient.

Right to intervene in the public prosecution.

Pursuant to Article 365 of the CCP, any person who is injured by the offence may, at any phase of the investigation, intervene in the public prosecution. Those so intervening in public prosecution proceedings may also submit their personal claims for adjudication.


CASE OF KARI-PEKKA PIETILÄINEN v. FINLAND

Violation of Art. 6-1+6-3-c;Non-pecuniary damage - award

David Thór Björgvinsson;Giovanni Bonello;Ján Šikuta;Ledi Bianku;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä

The applicant was born in 1967 and lives in Helsinki.

On 24 February 2004 the applicant was convicted of aggravated fraud by the Tuusula District Court (käräjäoikeus, tingsrätten) and sentenced to conditional imprisonment for one year and eight months.

On 25 March 2004 the applicant appealed to the Helsinki Appeal Court (hovioikeus, hovrätten) requesting, inter alia, that an oral hearing be held. The other defendants and one of the complainants also appealed to the Appeal Court.

On 28 December 2004, after having received written observations from the parties, the Appeal Court decided to hold an oral hearing. On 29 December 2004 the parties were summoned to attend the oral hearings which were to take place on 28 February, 14 to 16 March, 18 March, and 21 to 24 March 2005. It was stated in the decision and in the summons that the applicant was to appear in person at the hearing on all of those days, under penalty of a default fine. His presence was required due to his own appeal as well as the opposing parties’ appeal and in order to be heard by the public prosecutor. However, the hearing of witnesses was to take place between 14 and 24 March 2005. Moreover, it was stated in the summons that, if the applicant were to be absent from the main hearing without a valid excuse and despite the penalty of a default fine being imposed, his appeal would be discontinued. As far as the opposing parties’ appeal and the hearing by the public prosecutor were concerned, a new threat of a higher fine could be imposed on the applicant, he could be ordered to be brought to the same or a later hearing, and the case could be decided regardless of his absence. A valid excuse meant circumstances of force majeure or an illness certified by a medical certificate. Work or holiday reasons were normally not considered as valid reasons. The Appeal Court was to examine whether the excuse was valid.

The summons was served on the applicant on 4 January 2005.

The applicant did not attend the hearing on 28 February 2005 but was represented by his counsel. He could not be reached by telephone despite several attempts. The public prosecutor requested that the applicant be brought to the hearing but this was not done. The applicant’s counsel indicated that the applicant could most likely be found at his home but that his presence at the hearing on 28 February 2005 was not necessary as it had been planned in advance that he would be heard only on 15 March 2005.

On 28 February 2005 the Appeal Court decided, on the basis of Chapter 26, section 20, subsection 1, of the Code of Judicial Procedure (oikeudenkäymiskaari, rättegångsbalken; Act no. 381/2003), that the applicant’s appeal was to be discontinued due to his absence. It found that, since the applicant had not attended the hearing on 28 February 2005 or notified the court of a valid excuse for his absence, he had to be considered to have been absent even though his counsel had been present. It was stated in the decision that an ordinary appeal was not allowed but if the applicant had had a valid excuse that he had not been able to announce in time, he had the right to a reopening of the case on the basis of the same appeal, by notifying the Appeal Court in writing within thirty days of the decision to discontinue the appeal. If he could not provide a valid excuse, the case would be ruled inadmissible.

On 15 March 2005 the applicant attended the hearing as planned and was questioned as a witness.

On 24 March 2005 the applicant notified the Appeal Court in writing that he had had a valid excuse for his absence and that he wanted his case to be reopened. He claimed that the national provision in question, Chapter 26, section 20, subsection 1, of the Code of Judicial Procedure, had been too strictly applied. He referred to a Supreme Court judgment in which the court had stated that it was not necessary to summon an applicant to appear in person unless his presence was strictly necessary, for example for questioning. According to the Supreme Court, the national provision in question should not be interpreted too strictly. If the applicant was absent from the main hearing but his presence was not deemed strictly necessary, his appeal should not be discontinued due to his absence.

Furthermore, the applicant claimed that the above-mentioned provision most likely failed to comply with the requirements of the European Convention on Human Rights. When the provision in question had last been amended, the Government had proposed some textual changes in order to reflect better the Court’s case-law in this respect. These changes were not, however, accepted by the Parliament.

Moreover, the applicant claimed that, as there were no rules on how national law was to be applied when the main hearing lasted for several days, a Convention-friendly approach should have been adopted. The Appeal Court had set up a procedural plan according to which the applicant was to be heard in person only on 15 March 2005. It was not indicated in the summons that even one day’s absence would be regarded as absence from the whole main hearing. The applicant’s presence at the hearing on 28 February 2005 was thus not strictly necessary and the Appeal Court should not have discontinued his appeal. The applicant had never intended to discontinue his appeal.

In any event, the applicant claimed that he had had a valid excuse as he had been ill. He provided a medical certificate and two medical documents to that effect.

On 21 June 2005 the Appeal Court rejected the applicant’s notification. It found that the medical certificate had been dated eight days after the hearing and that the doctor had thus not examined the applicant’s health on 28 February 2005. On that date, the applicant had not received any treatment in a hospital or in a similar medical institution. The applicant was suffering from a long-term illness and his treatment was estimated to last two to three years. Despite the applicant’s state of health, he had been able to attend the hearing on 15 March 2005. His illness was thus not of a kind to constitute a valid excuse for absence. The applicant had time to prepare himself well in advance for the hearing and also to take the hearing into account when planning his treatment. Thus, the applicant had not shown that he had had a valid reason to be absent from the hearing on 28 February 2005 and he had no right to have his case reopened.

On 18 August 2005 the applicant appealed to the Supreme Court (korkein oikeus, högsta domstolen), reiterating the grounds of appeal relied on before the Appeal Court and pointing out that the Appeal Court had taken no stand on his claims concerning national law and the Court’s case-law.

On 11 October 2005 the Supreme Court refused leave to appeal.

According to Chapter 26, section 20, subsection 1, of the Code of Judicial Procedure (oikeudenkäymiskaari, rättegångsbalken; Act no. 81/2003), if the appellant is absent from the main hearing, the appeal shall be discontinued. According to Chapter 12, section 29 of the same Code (Act no. 1052/1991), a party who, in spite of having been ordered to appear in court in person, sends an attorney in his place without a valid excuse, shall be deemed to be absent.

When the current provisions concerning appeals to the Appeal Court were amended in 2002 and 2003, the following was mentioned in the Government Proposal HE 91/2002 vp.:

“The provision [Chapter 26, section 20, subsection 1, of the Code of Judicial Procedure] is interpreted [by the Supreme Court, KKO 2000:44] to mean that an appeal of an applicant summoned to appear in person is discontinued if he or she is absent from the main hearing even if he or she is represented by counsel. However, the European Court has on many occasions stated that it was of crucial importance for the fairness of the criminal justice system that the accused be adequately defended by counsel, in spite of having been properly summoned to appear in person. In its judgments of Lala and Pelladoah v. The Netherlands (application nos. 14861/89 and 16737/90, judgment of 22 September 1994, points 34 and 40) and Van Geyseghem v. Belgium (application no. 26103/95, judgment of 21 January 1999, points 33—35) as well as most recently in its judgment Stroek and Goedhart v. Belgium (application nos. 36449/97, 36467/97 and 34989/97, judgment of 20 March 2001), the European Court stated that an accused does not lose this right to be defended effectively by a lawyer merely on account of not attending a court hearing. It is immaterial whether the absence is due to a valid excuse or whether an appeal is possible. It is also immaterial that the defendant was adequately defended in the lower instance. The judgment in the Van Geyseghem case concerned an action for recovery of a higher court judgment which was given in absentia. The applicant, who was an accused in the criminal proceedings, was represented by her counsel in the recovery proceedings. The higher court "declared the application void". The proceedings were thus similar to those in Finland when an appeal is discontinued. On the other hand, in its judgment of Eliazer v. The Netherlands (application no. 38055/97, judgment of 16 October 2001, point 35), the European Court found no violation when counsel was heard and the case was decided thereafter. In the light of the above Court’s case-law, it is not entirely clear what should be done regarding an appeal of an applicant who is an accused in criminal proceedings and who, despite being summoned, does not appear in person at the main hearing.”

However, it was proposed that Chapter 26, section 20, subsection 1, of the Code of Judicial Procedure be amended so that an appeal by an applicant summoned to appear in person would no longer be discontinued if he or she were absent from the main hearing but represented by counsel. It was felt that it was better that the applicant in such situations received a decision on material rather than procedural grounds.

The Parliamentary Legal Committee estimated, however, in its report LaVM 27/2002 vp., that as it was debatable whether these amendments were necessary, and since they were causing inconvenience for the functioning of the appeal courts, the amendments should not be adopted. The proposed amendments were thus withdrawn.

The Supreme Court took a stand on this issue in its judgment of 1 October 2004 (KKO 2004:94). It found, inter alia, the following:

“13. The European Court has in many judgments stated that it was of crucial importance for the fairness of the criminal justice system that the accused be adequately defended, and that he could not be deprived of this right merely on account of not attending a court hearing. According to the Court, even if the legislature had to be able to discourage unjustified absences, it could not penalise them by creating exceptions to the right to legal assistance (see Poitrimol v. France, judgment of 23 November 1993, Lala v. The Netherlands and Pelladoah v. The Netherlands, judgments of 22 September 1994, as well as Van Geyseghem v. Belgium, judgment of 21 January 1999, Van Pelt v. France, judgment of 23 May 2000 and Goedhart v. Belgium, judgment of 20 March 2001).

When deciding in what situations a case can be examined only when the applicant is present in person and in what situations the applicant has the right to defend himself through legal assistance of his choosing, one has to distinguish different situations in the criminal proceedings. If the applicant is heard in order to clarify the matter, his presence in person is necessary. When, however, other witnesses are heard or the parties are heard in order to assess legally the act described in the indictment or the defence, it is appropriate that questioning is undertaken and the statements are given by a legal representative. It is also clear that when the applicant exercises his right to question or to give legal statements, he cannot be deprived of his right to use legal assistance and that his presence in person in those situations is not necessary. Therefore, the applicant should not be obliged to appear in person under penalty of a default fine unless the outcome of the case might depend on the reliability of his account or his presence in person is necessary for some other reason.

According to the provisions concerning the proceedings in appeal courts, an appeal court cannot, without any particular grounds, change the district court’s conclusions concerning the evidence if persons meant to be heard as witnesses are absent from the main hearing. The starting point is that a higher instance should have the same possibility to assess the oral testimony as a district court, the correctness of whose judgment is being assessed by the higher instance. This means, inter alia, that the principle of immediate presentation of evidence must be applied also on appeal. It does not follow from the wording of Chapter 26, section 20, subsection 1, of the Code of Judicial Procedure, nor did it follow from it at the time when the Appeal Court examined the case, that an appeal should always be entirely discontinued when the applicant is absent from the main hearing, even though summoned to appear in person. The court which has the right and the obligation to conduct the proceedings can and indeed must then decide whether the examination of some parts of the appeal by hearing only counsel is necessary or reasonable. When considering this, the court must take into account the applicant’s justified legal expectations. If it becomes clear that the applicant’s presence in person is, in spite of the given order, not necessary, his appeal should not in this kind of situation be even partly discontinued due to his absence.”


No violation of Art. 6-1 as regards independency and impartiality;Violation of Art. 6-1 as regards lack of a public hearing

The applicant is a farmer living in Piesendorf, Salzburg.

On 12 June 1991 the applicant applied to the Salzburg District Agricultural Authority (Agrarbezirksbehörde, the "District Authority") for declarations (1) that the share in an agricultural association (Agrargemeinschaft) represented by a certain parcel of land ("the share") belonged to him, and (2) that grazing rights in that parcel ("the grazing rights") also belonged to him. On 24 June 1991 the District Authority found that the applicant had not made out his claims, and it declared that the share and the grazing rights belonged to a third person. The applicant appealed to the Regional Land Reform Board (Landesagrarsenat, the "Regional Board").

The Regional Board dismissed the applicant's appeal on 8 May 1992. After an oral hearing, it found, so far as relevant, that the share had passed with a transfer of the land to a third party in 1949 (as rectified in 1952). The question of the grazing rights had to be determined by reference to the ownership of the land on 29 April 1868, as that was the last time they were officially mentioned. In the absence of any express alienation of the grazing rights since then, the grazing rights passed with the land - that is, the applicant did not own them.

The Constitutional Court (Verfassungsgerichtshof) declined to deal with the applicant's constitutional complaint on 14 October 1992. It remitted the case to the Administrative Court (Verwaltungsgerichtshof).

On 14 March 1995 the Administrative Court dismissed the applicant’s complaint rejecting at the same time, in accordance with section 39(2) no. 6 of the Administrative Court Act (Verwaltungsgerichtshofgesetz), the applicant’s request for an oral hearing. The judgment was served on the applicant’s representative on 31 March 1995.

A summary of the rules concerning the composition and procedure before the regional land reform boards, and hearings before the Administrative Court may be found in the Stallinger and Kuso v. Austria judgment (23 April 1997, Reports of Judgments and Decisions 1997-II, pp. 674-675, §§ 23-27).


The applicant, Mr Ramazan Şimşek, is a Turkish national, who was born in 1976 and lives in Batman. He is represented before the Court by Ms Y. Dora Şeker, a lawyer practising in Adana.

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

On 23 October 1995 the applicant was arrested by police officers from the anti-terrorist branch of the Izmir Security Directorate on suspicion of his involvement in the PKK.

On 6 November 1995 the applicant was brought before the public prosecutor and the investigating judge, who remanded the applicant in custody.

On 20 November 1995 the public prosecutor at the Konya State Security Court filed an indictment with the same court accusing the applicant of being a member of the PKK.

On 19 May 1997, after the promulgation of Law No. 4210, which abolished the Konya State Security Court, the case file was transferred to the Adana State Security Court. The criminal proceedings at the Adana State Security Court began on 11 June 1997.

On 16 June 1998 the Adana State Security Court convicted the applicant of the offence as charged and sentenced him to the death penalty. It then commuted this to life imprisonment.

On 6 May 1999 the Court of Cassation quashed the judgment of the State Security Court on account of “the lack of a final investigation” and remitted the case file back to the latter.

The criminal proceedings at the Adana State Security Court began on 24 August 1999. On 23 November 1999 the court convicted the applicant of the same offence and issued the same sentence.

On 27 September 2000 the Court of Cassation quashed the judgment of the first instance court and remitted the case to the Adana State Security Court.

On 15 March 2001, the Adana State Security Court, after having complied with the requirement of the Court of Cassation, sentenced the applicant to life imprisonment.

On 27 September 2001 the Court of Cassation upheld the latter judgment. The applicant was notified of this judgment on 9 April 2002.